USA v. Brian Ornela

Filing

UNPUBLISHED OPINION FILED. [16-40055 Affirmed as Amended] Judge: EHJ , Judge: JLW , Judge: EBC Mandate pull date is 06/27/2017 for Appellant Brian Ornelas [16-40055]

Case: 16-40055

Document: 00514022206

Page: 1

Date Filed: 06/06/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-40055
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
June 6, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BRIAN ORNELAS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:15-CR-528-1
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *

Brian Ornelas appeals his conviction and sentence for possession with
intent to distribute cocaine. First, he argues that the prosecutor committed
misconduct during closing argument by: (1) impugning defense counsel by
suggesting that she wished to confuse the jury; (2) suggesting that in order to
find Ornelas not guilty the jury would have to believe there was a conspiracy
against him; (3) offering a factual analogy that diminished the reasonable

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 16-40055
doubt standard; and (4) allocating the majority of closing argument for
rebuttal.
Because Ornelas did not object to these statements or the time allotted
for rebuttal, we review for plain error only. See United States v. Rashad,
687 F.3d 637, 643 (5th Cir. 2012). To establish plain error, Ornelas must show
(1) a forfeited error; (2) that is clear or obvious and not subject to reasonable
dispute; and (3) that affects his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes such a showing, this court has
the discretion to correct the error but will do so only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. See id.
Ornelas has not shown that any of the challenged statements were
improper given that the prosecutor made each statement in response to an
argument or theory offered by defense counsel in closing argument. See United
States v. Rodriguez-Lopez, 756 F.3d 422, 433 (5th Cir. 2014); United States v.
Ramirez-Velasquez, 322 F.3d 868, 874-75 (5th Cir. 2003). He also has not
demonstrated that the district court abused its discretion by allowing the
prosecutor to reserve a majority of his closing argument for rebuttal. See
United States v. Cugno, 255 F. App’x 5, 12 (5th Cir. 2007). Therefore, Ornelas’s
argument that the cumulative effect of these errors warrants a reversal of his
conviction has no merit. See United States v. Munoz, 150 F.3d 401, 418 (5th
Cir. 1998).
In addition, Ornelas contends that the district court erred in its response
to a jury note by instructing the panel to consider only the evidence admitted
at trial. However, the response allowed the jury to comprehend the issue
presented to it and corresponded to this circuit’s pattern jury instructions and
the instructions given to the jury during trial. See United States v. Richardson,
676 F.3d 491, 507 (5th Cir. 2012); United States v. Cantu, 185 F.3d 298, 305-

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06 (5th Cir. 1999). Ornelas has not shown an abuse of discretion by the district
court in this regard. See United States v. Daniels, 281 F.3d 168, 183 (5th Cir.
2002).
Finally, Ornelas asks this court to remand the matter to the district
court for a correction to the judgment.

At sentencing, the district court

recommended that Ornelas participate in the Residential Drug Abuse
Program.

The written judgment recommends that he participate in a

comprehensive drug treatment program. Accordingly, the written judgment is
AMENDED

to

conform

to

the

district

court’s

oral

pronouncement

recommending that Ornelas participate in the Residential Drug Abuse
Program. See United States v. Taylor, ___ F. App’x ___, 2017 WL 243342, 1
(5th Cir. Jan. 19, 2017); 28 U.S.C. § 2106. The judgment is AFFIRMED as
amended.

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