United States v. Salvatierra ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS September 9, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
____________________ Clerk
No. 02-51411
Summary Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IRMA VERONICA SALVATIERRA,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(EP-02-CR-933-1)
_________________________________________________________________
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Irma Veronica Salvatierra appeals her convictions for:
conspiracy to import, and importation of, 100 kilograms or more of
marijuana; and conspiracy to possess with intent to distribute, and
possession with intent to distribute, 100 kilograms or more of
marijuana. She contends: (1) her conviction should be reversed
because the prosecutor made an improper remark during closing
*
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that this opinion should not be published and is not precedent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.
argument (concerning jury’s doing something about drug use in
community); and (2) her sentence should be vacated because the
district court erred by not granting her a two-level reduction in
her total offense level due to her minor role in the offense.
The claimed prosecutorial misconduct is reviewed under a two-
step process by which we determine: (1) whether the comment was
improper; and (2) whether it prejudiced Salvatierra’s substantive
rights. See, e.g., United States v. Lankford, 196 F.3d 563, 574
(1999), cert. denied, 529 U.S. 1119 (2000). Assuming arguendo that
the comment was improper, there was ample evidence for the jury to
convict Salvatierra in the absence of the prosecutor’s comment;
therefore, she has not demonstrated that it prejudiced her
substantial rights. See United States v. Duffaut, 314 F.3d 203,
210-11 (5th Cir. 2002); see also United States v. Casilla, 20 F.3d
600, 606 (5th Cir.), cert. denied, 513 U.S. 892 (1994).
A district court’s determination that a defendant played more
than a “minor” role for purposes of U.S.S.G. § 3B1.2 is reviewed
only for clear error. E.g., United States v. Garcia, 242 F.3d 593,
598 (5th Cir. 2001). Salvatierra’s sentence was based on the
conduct in which she was directly involved, namely the
transportation of drugs across the border. Because her role in the
offense was co-extensive with the conduct for which she was held
accountable, the district court did not clearly err in denying the
reduction. Id. at 598-99.
2
AFFIRMED
3