IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41283
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERASMO HERNANDEZ-MENDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-261-ALL
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January 28, 2003
Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Erasmo Hernandez-Mendez appeals his conviction, following a
jury trial, for one count of transporting illegal aliens, a
violation of 8 U.S.C. § 1324. He first argues that the evidence
adduced at trial was insufficient to support his conviction.
This argument is unavailing. The evidence was sufficient to
prove that Hernandez-Mendez had committed all of the elements of
the offense charged. See United States v. Romero-Cruz, 201 F.3d
*
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that this opinion should not be published and is not precedent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.
No. 01-41283
-2-
374, 378 (5th Cir. 2000). He thus has not shown that a manifest
miscarriage of justice will result if his conviction is allowed
to stand. See United States v. McIntosh, 280 F.3d 479, 483 (5th
Cir. 2002).
He next argues that the district court’s jury instructions
constructively amended the indictment. Even if the instructions
did constructively amend the indictment, then Hernandez-Mendez
still is not entitled to relief, for he fails to carry his burden
of demonstrating that this alleged error affected his substantial
rights. He thus has not shown plain error in connection with the
district court’s jury instructions. See United States v. Reyes,
102 F.3d 1361, 1364-66 (5th Cir. 1996); United States v.
Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc).
Hernandez-Mendez’s argument that the prosecutor’s comments
on his silence constitute reversible error likewise does not
merit relief. The evidence against Hernandez-Mendez was
substantial, and his defense was weak. Accordingly, even if the
remarks were improper, then there still is no plain error. See
United States v. Rivera, 295 F.3d 461, 469 (5th Cir. 2002);
United States v. Knezek, 964 F.2d 394, 400 (5th Cir. 1992).
Accordingly, the judgment of the district court is AFFIRMED.
United States v. Hernandez-Mendez
Combined Opinion