IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50808

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

AURELIA OCHOA HERNANDEZ, also known as Rachel Tovar, also known as

Aurelia Hernandez; PEDRO DANIEL TOVAR,

Defendants-Appellants

Appeals from the United States District Court

for the Western District of Texas

USDC No. 1:11-CR-131-2

Before WIENER, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:*

Defendants-Appellants Aurelia Ochoa Hernandez, Pedro Daniel Tovar,

and 19 others were named in a 47-count indictment. Hernandez was named in

all 47 counts, consisting of conspiracy to make false statements in connection

with firearms sales, export firearms contrary to law, and conceal firearms prior

to exportation (Count 1); smuggling firearms (Count 2); making false statements

in firearms records and aiding and abetting (Counts 3-44); being a felon in

United States Court of Appeals

Fifth Circuit

F I L E D

November 7, 2012

Lyle W. Cayce

Clerk

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.

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possession of a firearm (Count 45); conspiracy to commit money laundering

(Count 46); and money laundering (Count 47). Tovar was named in five counts:

Count 1, Count 2, and three counts of making false statements in firearms

records and aiding and abetting (Counts 20, 38, and 39). The indictment alleged

that Hernandez and Tovar participated in a conspiracy to acquire firearms in

Texas through the use of straw purchasers and then transport the firearms to

Mexico in exchange for cash.

Following a jury trial, Hernandez and Tovar were found guilty as charged. 

Hernandez was sentenced to a total of 360 months of imprisonment, and Tovar

was sentenced to a total of 97 months of imprisonment. Hernandez challenges

her convictions, and Tovar challenges his sentences.

Aurelia Ochoa Hernandez

Hernandez first argues that two remarks during the government’s closing

argument amounted to prosecutorial misconduct. The first occurred while one

of the prosecutors was arguing that the jury should infer that Hernandez had

transported the firearms involved into Mexico. The prosecutor stated,

So how do we know that Aurelia Hernandez was in

charge of transportation? How do we know that she

was the one taking the firearms to Charlie? Well, I will

present to you that there are lots of ways. There’s been

lots of evidence to show that she’s the one to do it. And

I think one of the best pieces of evidence is one that’s

more of an inference. You saw that we found this gun,

and we found three others. Four semi-autos were

found. And, trust me, the ATF, they looked for them. 

You heard about at least two search warrants they did. 

We found four.

And the indictment—the indictment has a lot

listed in it, at least about 50. And Joey Lira told you he

thought it was up to 60 or 62. Where are those other

guns? They’re in Mexico. That’s why we couldn’t find

them. They’re with Charlie, or Charlie has already

passed them on to somebody else. And how did they get

there? (Emphasis added.)

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Hernandez contends that the prosecutor’s statement, “Trust me, the ATF,

they looked for them,” constituted improper bolstering of the evidence by the

government through a personal statement. Hernandez also argues that the use

of the word “trust” was particularly prejudicial because “trust” appears on

United States currency and thus even more directly invoked the imprimatur of

the sovereignty of the United States.

The second remark was made by the other prosecutor during the

government’s rebuttal to the defendants’ closing arguments. In expounding on

how Hernandez was able to cross the border into Mexico with firearms without

being detected, the prosecutor stated,

How did she get across the border with these guns? I

mean, I guess it’s not in the record, but it’s obvious to all

of us. This woman is in her 50s. Take a look at her. 

Would you think she’s carting around semiautomatic

assault rifles?[] Let’s complete the picture. How about

in a pickup truck full of junk with five or six dogs

running around there barking and frankly messing the

interior of the truck up so that it stunk and she’s just

going into Mexico. Is the American side really going to

stop her and subject her to great scrutiny? I suggest to

you they didn’t. They obviously didn’t. And she knew

it. She knew it. (Emphasis added.)

Hernandez contends that the prosecutor acted improperly by arguing facts that,

in his own words, were “not in the record.”

Hernandez did not object to the prosecutors’ remarks. Thus, we review

this issue under the plain error standard. See United States v. Gracia, 522 F.3d

597, 599-600 (5th Cir. 2008). To show plain error, the appellant must show a

forfeited error that is clear or obvious and that affects her substantial rights. 

Puckett v. United States, 556 U.S. 129, 135 (2009). In the context of improper

prosecutorial remarks, the substantial rights prong “sets a high bar,” with the

determinative question being “whether the prosecutor’s remarks cast serious

doubt on the correctness of the jury’s verdict.” United States v. Morin, 627 F.3d

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985, 1000 (5th Cir. 2010) (internal quotation marks and citation omitted), cert.

denied, 131 S. Ct. 2126 (2011). If Hernandez meets her burden under the first

three prongs of the plain error standard, we have the discretion to correct the

error but only if it seriously affects the fairness, integrity, or public reputation

of judicial proceedings. See Gracia, 522 F.3d at 600.

“A prosecutor is confined in closing argument to discussing properly

admitted evidence and any reasonable inferences or conclusions that can be

drawn from that evidence.” United States v. Mendoza, 522 F.3d 482, 491 (5th

Cir. 2008). It is improper for a prosecutor to make a personal assertion that

vouches for the credibility of a witness. Gracia, 522 F.3d at 601. Additionally,

“[a] prosecutor may not directly refer to or even allude to evidence that was not

adduced at trial.” Mendoza, 522 F.3d at 491.

Even if Hernandez can show that the prosecutors’ remarks constituted

clear or obvious error, she cannot show an effect on her substantial rights. See

Morin, 627 F.3d at 1000. The effect of a prosecutor’s remarks is evaluated in the

context of the trial as a whole. Mendoza, 522 F.3d at 492. We consider “(1) the

magnitude of the prejudicial effect of the prosecutor’s remarks, (2) the efficacy

of any cautionary instruction by the judge, and (3) the strength of the evidence

supporting the conviction.” United States v. Thompson, 482 F.3d 781, 785 (5th

Cir. 2007) (internal quotation marks and citation omitted).

First, the magnitude ofthe prejudicial effect of the disputed comments was

not significant, as the comments were isolated and were immediately followed

by references to evidence in the record from which reasonable inferences could

be drawn to support the underlying arguments each prosecutor was attempting

to make. See Mendoza, 522 F.3d at 494-97; Thompson, 482 F.3d at 786. Second,

the district court’s instructions to the jury mitigated any harm from the disputed

comments, as the jurors were repeatedly told that the statements of the lawyers

were not evidence and that they were to consider only the evidence as observed

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by them from witnesses and exhibits that were admitted. See Thompson, 482

F.3d at 787.

Third, the evidence against Hernandez was significant. For example, the

testimony of Jose Lira, Jordan McCoy, Nicholas Tovar, and Justin Caudle, all

co-defendants who had pleaded guilty, indicated that Hernandez transported the

firearms into Mexico for the conspiracy. Their testimony was corroborated by

the discovery of a piece of gray carpet behind the back seat of Hernandez’s truck

that matched the type of carpet used to wrap the firearms, records that reflected

repeated border crossings by Hernandez during the time of the conspiracy, and

the discovery by border patrol agents during one of Hernandez’s crossings into

the United States that she had $11,170 in cash stuffed inside her bra that she

failed to declare. Hernandez has not shown plain error regarding this issue. See

Mendoza, 522 F.3d at 494-97; Thompson, 482 F.3d at 785-88.

Hernandez next argues that the district court abused its discretion when

it denied her pretrial pro se motions for substitution of her appointed counsel. 

“Although an indigent criminal defendant has a right to be represented by

counsel, he does not have a right to be represented by a particular lawyer, or to

demand a different appointed lawyer except for good cause.” United States v.

Young, 482 F.2d 993, 995 (5th Cir. 1973). Good cause includes “a complete

breakdown in communication or an irreconcilable conflict which leads to an

apparently unjust verdict.” Id.; accord United States v. Simpson, 645 F.3d 300,

307 (5th Cir.), cert. denied, 132 S. Ct. 541 (2011). We review the district court’s

denial of Hernandez’s motions for abuse of discretion. See Simpson, 645 F.3d at

307.

According to Hernandez, good cause existed based on a complete

breakdown in communication because her counsel impeded the trial preparation

process by having Hernandez rendered unavailable while Hernandez’s

competency to stand trial was being examined and because counsel failed to

rectify auditory hearing issues that counsel believed Hernandez was having

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during their meetings. Hernandez also contends that an irreconcilable conflict

existed because counsel moved for a competency exam after Hernandez declined

a plea agreement and because counsel insulted Hernandez during a hearing

before the district court by disingenuously stating that she believed Hernandez

had an auditory hearing issue.

Hernandez’s arguments are not borne out in the record, as the assertions

in her motions and the statements by her and her counsel to the district court

during the hearings involving her motions reflect that Hernandez and her

counsel continued to meet and communicate and that Hernandez’s complaints

mainly related only to her disagreement with counsel’s opinion about whether

to use of a particular piece of evidence at trial. Hernandez has not shown that

the district court abused its discretion in denying her motions for substitution

of counsel.

In her final argument, Hernandez claims that her counsel provided

ineffective assistance by failing to object to the government’s improper remarks

during its closing argument and failing to move for a judgment of acquittal at

the close of the evidence. We resolve ineffective assistance claims on direct

appeal only in rare cases where the record allows for a fair evaluation of the

merits of the claims. United States v. Sanchez-Pena, 336 F.3d 431, 445 (5th Cir.

2003). This is not one of those rare cases. Accordingly, we decline to consider

Hernandez’s ineffective assistance claims, without prejudice to her ability to

raise them in a motion pursuant to 28 U.S.C. § 2255.

Pedro Daniel Tovar

In his first argument, Tovar contends that the district court erred in

applying a base offense level of 26 instead of 14 under U.S.S.G. § 2M5.2. “This

court reviews de novo the district court’s guidelines interpretations and reviews

for clear error the district court’s findings of fact.” United States v. Longstreet,

603 F.3d 273, 275-76 (5th Cir. 2010) (internal quotation marks and citation

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omitted). A factual finding is not clearly erroneous so long as it is plausible in

light of the record as a whole. Id. at 276.

Tovar was ineligible for a base offense level of 14 under the version of

§ 2M5.2 applicable to him if he was accountable for more than 10 firearms. See

§ 2M5.2(a)(1)-(2) (2010). Under the rules regarding relevant conduct, the district

court was permitted to consider not only the acts committed, aided, or abetted

by Tovar personally but also all acts and omissions of others in furtherance of

the conspiracy that were reasonably foreseeable by Tovar. See

§ 1B1.3(a)(1)(A)-(B); United States v. Rodriguez, 553 F.3d 380, 395 (5th Cir.

2008).

The trial evidence indicated that Tovar knew the details of the scheme and

was present or directly involved in a four straw purchases of firearms by Blanca

Tovar and five straw purchases by Elva Hernandes. Given his knowledge of the

nature of the scheme, it was reasonably foreseeable to Tovar during the time of

his participation in the conspiracy that other straw purchasers would buy at

least two more firearms. In fact, the evidence shows that Lance Mitchell Coll

made two straw purchases of firearms for the scheme during the time of Tovar’s

participation. The district court’s finding that Tovar was accountable for more

than 10 firearms was plausible in light of the record as a whole and thus not

clearly erroneous.

In his second argument, Tovar contends that the district court erred when

it imposed the two-level enhancement under § 3C1.1 for obstruction of justice

based on his failure to appear in court for the reading of the verdict. The district

court’s finding that a defendant obstructed justice under § 3C1.1 is reviewed for

clear error. United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008). 

“Obstructive conduct can vary widely in nature, degree of planning, and

seriousness,” and the conduct to which the enhancement applies “is not subject

to precise definition.” § 3C1.1, comment. (n.3).

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Tovar delayed the court proceedings and misled the district court

regarding the cause of his absence, caused the district court to authorize a

warrant for his arrest after he failed to appear by the time the proceedings

adjourned about an hour and a half after he had been contacted and told to

appear, and violated the conditions of his bond by traveling out of state without

permission. The district court did not clearly err in finding that his conduct

constituted obstruction of justice for purposes of § 3C1.1.

In any event, any error by the district court regarding the guidelines

issues raised by Tovar would be harmless because the district court indicated

that it would have imposed the same sentences on Tovar pursuant to 18 U.S.C.

§ 3553(a), even if all of Tovar’s objections to the calculation of his guidelines

range had been sustained and the lesser guidelines range advanced by him were

applicable. See United States v. Bonilla, 524 F.3d 647, 657-58 (5th Cir. 2008).

In his final argument, Tovar contends that his sentence is substantively

unreasonable because the district court failed to adequately consider the need

to avoid an unwarranted sentencing disparity with similarly situated

co-defendants. Tovar has not established the existence of any sentencing

disparity because he does not cite any evidence that lower sentences were

imposed in cases with facts substantially similar to his case. See United States

v. Sanchez-Ramirez, 497 F.3d 531, 535 n.4 (5th Cir. 2007); United States v.

Smith, 440 F.3d 704, 709 (5th Cir. 2006). Apart from Hernandez, who received

a 360-month sentence, all of Tovar’s other co-defendants who were convicted had

pleaded guilty prior to Tovar’s trial. Tovar’s sentence is presumptively

reasonable because it falls within his properly calculated guidelines range, see

United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008), and he has

not shown that his sentence constituted an abuse of discretion.

The judgments of the district court are AFFIRMED.

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