UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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Nos. 97-30757 & 97-30758
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO COLON,
also known as Jose Antonio Betancourt,
Defendant-Appellant.
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SERGIO ARIAS,
Defendant-Appellant.
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Appeals from the United States District Court
for the Western District of Louisiana
(96-CR-20028 & 96-CR-20028-004)
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August 4, 1998
Before KING, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
*
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that this opinion should not be published and is not precedent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.
Ricardo Colon appeals his conviction for conspiracy to
distribute cocaine, possession with intent to distribute cocaine,
and interstate travel in aid of illegal activity. Sergio Arias,
who pleaded guilty to conspiracy to distribute cocaine, appeals
only his sentence. Both Appellants were involved in a conspiracy
to transport cocaine from Houston, Texas, to Memphis, Tennessee.
As their offenses arise out of the same course of conduct, our
court granted the Government’s motion to consolidate their appeals.
Colon contends that the district court erred by denying his
motion for mistrial, following an FBI agent’s improper,
nonresponsive testimony in which he attributed several murders to
members of the organization with whom Colon had conspired. After
the district court denied Colon’s motion for a mistrial, the
Government clarified that there were no murder charges against
Colon and instructed the agent to refrain from making any further
comments on the subject.
We review a district court’s refusal to grant a mistrial for
abuse of discretion. United States v. Layne, 43 F.3d 127, 134 (5th
Cir.), cert. denied, 514 U.S. 1077 (1995). “Where, as here, the
motion for a mistrial involves the presentation of prejudicial
testimony before the jury, a new trial is required only if there is
a significant possibility that the prejudicial evidence had a
substantial impact upon the jury verdict, viewed in light of the
entire record.” Id. (internal quotation marks and citation
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omitted). Considering the Government’s curative statements in open
court immediately following the nonresponsive answer, and in the
light of the abundant evidence of Colon’s guilt, it is unlikely
that the improper testimony had a substantial impact on the jury’s
verdict. Accordingly, the district court did not abuse its
discretion by denying Colon’s motion for mistrial.
Guidelines’ § 5C1.2 requires the district court to sentence a
defendant according to applicable guidelines without regard to a
statutory minimum sentence, if the five criteria for its
application are satisfied. Arias contends that the district court
erred by finding that he had not met the fifth eligibility
requirement for application of § 5C1.2 (“not later than the time of
the sentencing hearing, the defendant has truthfully provided to
the Government all information and evidence the defendant has
concerning the offense or offenses that were part of the same
course of conduct or of a common scheme or plan”). Although Arias
also contends that the district court mistakenly believed that it
had no authority to apply § 5C1.2, and that it failed to present
any reasons for refusing to apply § 5C1.2, neither of those
contentions has merit. The record reflects that the district court
was aware of its authority to apply § 5C1.2 if Arias met all of the
eligibility requirements, and the court stated reasons for refusing
to apply it.
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We review the district court’s refusal to apply § 5C1.2 for
clear error. United States v. Flanagan, 80 F.3d 143, 145 (5th Cir.
1996). The district court’s finding was based on Arias’ testimony
at Colon’s trial that Colon had not been involved in the
conspiracy. In the light of the jury verdict convicting Colon and
the great weight of evidence directly contradicting Arias’
testimony, the district court did not clearly err by finding that
Arias had not given truthful information to the Government
regarding his offense and was, therefore, ineligible for
application of § 5C1.2. See United States v. Edwards, 65 F.3d 430,
433 (5th Cir. 1995). The contention that § 5C1.2 could not be
applied because the district court did not impose an upward
adjustment for obstruction of justice, pursuant to U.S.S.G. §
3C1.1, also fails.
AFFIRMED
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