IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-10281

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ALEJANDRO ARAGON CENICEROS,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:11-CR-96-39

Before WIENER, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Alejandro Aragon Ceniceros (Aragon) appeals his 

jury trial conviction of conspiracy to possess with intent to distribute five 

kilograms or more of cocaine and possession with intent to distribute 500 

grams or more of cocaine. Aragon contends that the district court violated his 

due process rights by prohibiting him from presenting testimony from a 

defense witness, Jose Flores. He asserts that the government substantially 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 19, 2014

Lyle W. Cayce

Clerk

 

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No. 13-10281

interfered with Flores’s decision whether to testify by threatening that he 

would be indicted for additional crimes and that his plea agreement would be 

invalidated if he testified for the defense.

The existence of substantial governmental interference with a defense 

witness’s free and unhampered choice to testify is a factual question that we

typically review for clear error. United States v. Thompson, 130 F.3d 676, 686-

87 (5th Cir. 1997). As Aragon did not raise a claim of substantial interference 

in the district court, however, our review is for plain error only. See Puckett v. 

United States, 556 U.S. 129, 134 (2009); United States v. Binker, 795 F.2d 1218, 

1228 (5th Cir. 1986). And, he cannot succeed on plain error review because his 

claim of substantial interference could have been resolved if he had properly

raised it in the district court. See United States v. Chung, 261 F.3d 536, 539 

(5th Cir. 2001).

In any event, Aragon cannot demonstrate error, plain or otherwise, with 

regard to his claim of substantial interference. See Puckett, 556 U.S. at 134; 

United States v. Viera, 839 F.2d 1113, 1115 (5th Cir. 1998) (en banc); 

Thompson, 130 F.3d at 686-87. He has failed to show that the government

substantially interfered with Flores’s free decision to testify or that his defense 

was prejudiced by any such interference. See Viera, 839 F.2d at 1115. The 

record does not reflect that the government made any threats, express or 

implied, directed at Flores or related to him. There is no indication that the 

government’s discussion with Flores’s counsel or its arguments to the district 

court about the likely consequences of Flores’s testimony were improper. See 

id.; Thompson, 130 F.3d at 687. Furthermore, the record reflects that Flores’s 

decision not to testify was an informed choice based on his concerns about selfincrimination and future prosecution and was not the result of impermissible 

interference by the government. See United States v. Girod, 646 F.3d 304, 312

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No. 13-10281

(5th Cir. 2011); United States v. Bieganowski, 313 F.3d 264, 291 (5th Cir. 2002). 

Neither has Aragon shown that Flores’s testimony would have been material 

or exculpatory. See Viera, 839 F.2d 1115; Puckett, 556 U.S. at 135. 

AFFIRMED.

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