* Pursuant to 5 TH C IR

. 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opinion should not be published and is not precedent except under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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

July 31, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-51118

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

IGNACIO GUERRA-GARZA,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. SA-01-CR-75-5

Before GARWOOD, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM: *

Ignacio Guerra-Garza was c onvicted by a jury of possession

with intent to distribute less than one hundre d kilograms of

marihuana. The district court sentenced Guerra-Garza to thirtythree months’ imprisonment and three years’ supervised release.

Guerra-Garza challenges as improper and prejudicial comments2

made by the Assistant United States Attorney (AUSA) during his

opening closing argument. The comments, as appellant characterizes

them, implo red the jury to take part in the war on drugs and

proposed that in order to acquit Guerra-Garza, the jury would have

to find that the Government’s witnesses committed perjury and

engaged in a conspiracy. Guerra-Garza contends that the comments

improperly bolstered the credibility of government witnesses,

distracted the jury’s attention from the evidence, and

impermissibl y interjected broader issues into the case. He

contends that the Government’s evidence on the issue of his

knowledge of the marihuana was weak and inconsistent. He argues

that the AUSA’s comments interfered with the jury’s assessment of

the evidence, and he asserts that the improper comments were not

cured by instruction. He argues that the comments affected the

verdict and the fairness and integrity of the proceedings, amounted

to plain error, and require reversal.

We must decide whether the disputed remarks were improper and

whether the remarks “prejudiced the defendant’s substantive

rights.” U

nited States v. Munoz

, 150 F.3d 401, 414, 415 (5th Cir.

1998). Guerra-Garza concedes that review is for plain error as no

objection whatever was made below. Under plain error review, we

will reverse a conviction “‘only if the government’ s closing

arguments seriously affected the fairness or integrity of the

proceedings and resulted in a miscarriage of jus tice.’” U nited3

States v. Kneze k , 964 F.2d 394, 399 (5th Cir. 1992). The

“prosecutor’s comments must be considered in the context of the

entire trial.” Id . at 400.

If we assume for the purpose of argument that the challenged

comments, separately or in combination, were improper, we must

decide if “the jury would have found [Guerra-Garza] guilty had it

not been for the prosecutor’s improper argument.” U nited States v.

Goff

, 847 F.2d 149, 165 (5th Cir. 1988). To do so, we consider the

magnitude of the statements’ prejudice, the curative effect of any

“caut ionary instructions,” and the strength of the evidence on

guilt. U

nited States v. Tomblin

, 46 F.3d 1369, 1389 (5th Cir.

1995).

Defense counsel did not object to the AUSA’s closing comments,

and thus, the district court did not give specific curative

instructions when the challenged comments were made. Prior to the

presentation of evidence and in the charge, the district court

directed the jury to consider only the evidence, namely the

testimony give n under oath and the exhibits that were admitted.

The district court instructed the jury that statements and argument

made by the district court and the lawyers were not evidence. S ee

United States v. Wyly

, 193 F.3d 289, 299-300 (5th Cir. 1999);

Tomblin

, 46 F.3d at 1390-91; United States v. Parekh

, 926 F.2d 402,

408-09 (5t h Cir. 1991). The jury is presumed to follow its

instructions. Wyly , 193 F.3d at 299.4

Guerra-Garza was indicted for conspiracy to distribute

marihuana and for possession with intent to distribute less than

one hundred kilograms of marihuana. The jury, which acquitted

Guerra-Garza on the conspiracy charge, did not allow the AUSA’s

closing comments to influence its decision on the issue of GuerraGarza’s involvement in a drug conspiracy. The jury determines the

credibility of the witnesses and was free to discredit Guerra’s

testimony on knowledge. S ee United States v. Martinez

, 975 F.2d

159, 161 (5th Cir. 1992).

In lig ht of the evidence presented, which was significantly

stronger than that minimally necessary to sustain a conviction, and

the district court’s instructions, Guerra-Garza has not shown that

the prejudicial effect of the AUSA’s comments “‘affected the

fairness or integrity of the proceedings and result ed in a

miscarriage of justi ce.’” K nezek

, 964 F.2d at 400. Accordingly,

the judgment of the district court is

AFFIRMED.