United States v. Duncan

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 30, 2005

Charles R. Fulbruge III
No. 04-41278 Clerk
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STEPHEN PATRICK DUNCAN,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
No. 5:04-CR-475-ALL
--------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Stephen Duncan appeals his jury conviction and sentence for

transporting an illegal alien in violation of 8 U.S.C. § 1324(a).

He was sentenced to 15 months’ imprisonment and three years’ su-

pervised release.

Duncan asserts that the government engaged in prosecutorial

misconduct by improperly eliciting facts concerning his 2002 immi-

*
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should not be published and is not precedent except under the limited circum-
stances set forth in 5TH CIR. R. 47.5.4.
 No. 04-41278
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gration conviction, erroneously characterizing that conviction as

a transportation of an illegal alien case and alien smuggling case,

and overstating the weight to be afforded that conviction. In re-

viewing a claim of prosecutorial misconduct, we determine whether

the prosecutor’s remark was improper and, if so, whether it re-

sulted in a violation of the defendant’s substantial rights.

United States v. Munoz, 150 F.3d 401, 414 (5th Cir. 1998); United

States v. Ramirez-Velasquez, 322 F.3d 868, 874 (5th Cir. 2003). We

consider the remark in the context of the trial, and the ultimate

question is whether the remark casts serious doubt on the correct-

ness of the verdict. Ramirez-Velasquez, 322 F.3d at 875; United

States v. Iredia, 866 F.2d 114, 117 (5th Cir. 1989).

In 2002, Duncan was convicted of knowingly aiding and abetting

the illegal entry of an alien. The district court limited the ad-

missibility of the facts surrounding that conviction to the facts

contained in the judgment, which included the date of the convic-

tion and the number of aliens involved in the offense. The fact

that the 2002 immigration offense occurred near Cotulla, Texas, was

not contained in the judgment and was an improper remark, but it

was not material to the conviction, does not cast doubt on it, and

does not amount to error.

As for Duncan’s prosecutorial misconduct claims regarding the

government’s characterization of his 2002 immigration offense, the

remarks were not improper. The judgment of that conviction states

that Duncan was found guilty of the offense because he attempted to
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transport aliens in furtherance of their illegal entry into the

United States. Additionally, aiding and abetting the illegal entry

of an alien, transporting an illegal alien, and alien smuggling are

related offenses. See United States v. Reyes-Ruiz, 868 F.2d 698,

701-03 (5th Cir. 1989), overruled on other grounds by United States

v. Bachynsky, 934 F.2d 1349 (5th Cir. 1991) (en banc); United

States v. Solis-Campozano, 312 F.3d 164, 166-68 (5th Cir. 2002).

The government’s remarks in closing argument were not improp-

er. They suggested to the jury the inferences and conclusions the

government wanted the jury to draw from the evidence and how to

analyze, evaluate, and apply the evidence presented at trial.

Duncan contends the evidence was insufficient to support his

conviction. On appeal, he challenges only the knowledge and intent

elements of 8 U.S.C. § 1324(a)(1)(A)(ii). See United States v.

Romero-Cruz, 201 F.3d 374, 376 (5th Cir. 2000).

The evidence showed the following: Duncan was transporting

the illegal aliens at approximately 10:00 p.m. in an area not heav-

ily traveled. When the deputy turned on his lights in an attempt

to pull Duncan to the side of the road, Duncan initially sped up

but eventually stopped after traveling about half a mile. The

illegal aliens smelled of body odor and the woods, were dressed in

layered clothing and jackets despite the heat, and carried handmade

slingshots. One of them presumed that Duncan knew the five men

were illegal aliens. The illegal aliens could speak little, if no,

English. After some sign or gesture from them, Duncan stopped his
 No. 04-41278
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car, allowed five of them to get into his car, and drove away with-

out speaking to them. Before the deputy stopped Duncan, Duncan had

passed up three direct routes to Cotulla and seemed to be driving

away from Cotulla.

Duncan was convicted in 2002 for aiding and abetting the il-

legal entry of an alien. Accordingly, a jury could conclude that

the evidence proved beyond a reasonable doubt that he was guilty of

transporting an illegal alien. See Romero-Cruz, 201 F.3d at 376.

Duncan asserts for the first time on appeal that, in light of

United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), his

sentence is invalid because the district court applied the sen-

tencing guidelines as if they were mandatory. We review for plain

error. United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert.

denied, 126 S. Ct. 43 (2005); United States v. Valenzuela-Quevedo,

407 F.3d 728, 732 (5th Cir.), cert. denied, 126 S. Ct. 267 (2005);

United States v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir.), cert.

denied, 126 S. Ct. 194 (2005).

Duncan is unable to establish plain error with regard to his

Booker claim, because he cannot establish that being sentenced

under a mandatory Guidelines scheme affected his substantial

rights. The record does not indicate that the district court

“would have reached a significantly different result” under a

sentencing scheme in which the guidelines were advisory only. See

Mares, 402 F.3d at 520-22; Valenzuela-Quevedo, 407 F.3d at 733-34.

Duncan also asserts that the application of the Mares plain
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error standard is contrary to the plain error standard enunciated

in United States v. Dominguez Benitez, 542 U.S. 74 (2004). Dun-

can’s challenge to the showing required under Mares is unavailing.

One panel of this court may not overrule or ignore a prior panel

decision. See United States v. Ruiz, 180 F.3d 675, 676 (5th Cir.

1999).

Accordingly, Duncan’s conviction and sentence are AFFIRMED.