United States v. Magalde

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________

No. 00-51258 Summary Calendar ____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARIA SOCORRO MAGALDE,

Defendant-Appellant. ____________________________________________________________

Appeal from the United States District Court for the Western District of Texas (EP-97-CR-647-ALL-DB) ____________________________________________________________ July 20, 2001 Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

A jury convicted Maria Socorro Magalde on both counts of an

indictment charging her with possession with intent to distribute

marijuana and a related conspiracy. Magalde claims the

prosecutor’s remarks in closing argument improperly shifted the

burden of proof to her and invited the jury to convict her on the

basis of evidence outside the record.

As Magalde concedes, because her counsel did not object

contemporaneously to those comments, we review only for plain

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. error. See United States v. Andrews, 22 F.3d 1328, 1341 (5th

Cir.), cert. denied, 513 U.S. 941 (1994); see also United States v.

Munoz, 150 F.3d 401, 415 (5th Cir. 1998), cert. denied, 525 U.S.

1112 (1999). In assessing whether the statements were improper, it

is, of course, necessary to look at them in context. United States

v. Washington, 44 F.3d 1271, 1278 (5th Cir.), cert. denied, 514

U.S. 1132 (1995). “The burden of showing plain error is a heavy

one, and this court will notice plain error only in exceptional

circumstances.” Andrews, 22 F.3d at 1341 (internal quotation

marks, brackets, and citation omitted).

In any event, review of the comments in their proper context

reveals that none were improper. In short, there was no error,

much less plain error.

AFFIRMED