     Case: 13-40897      Document: 00512737841         Page: 1    Date Filed: 08/19/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals

                                    No. 13-40897
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                        August 19, 2014
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

ANDRES JOHN CORTEZ, also known as Andy,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                            USDC No. 4:11-CR-247-10


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Andres John Cortez appeals from his jury trial conviction and sentence
for conspiracy to distribute or possess with the intent to distribute cocaine,
methamphetamine, and marijuana.               He was sentenced to 120 months of
imprisonment and five years of supervised release.
       For the first time on appeal, he argues that the district court erred by
applying the statutory minimum term of imprisonment to his sentence because


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 13-40897

the probation officer stated in the presentence report that he was responsible
for only 13.68 grams of methamphetamine, which is below the quantity
necessary to trigger that statutory minimum term.               See 21 U.S.C.
§§ 841(b)(1)(A)(viii) & 846.   However, the jury specifically found that the
offense involved 50 grams or more of actual methamphetamine or 500 grams
or more of a mixture or substance containing a detectable amount of
methamphetamine. Because Cortez did not preserve this issue for appeal, we
review this claim for plain error. United States v. Peltier, 505 F.3d 389, 391
(5th Cir. 2007); see also Puckett v. United States, 556 U.S. 129, 135 (2009)
(stating the plain-error standard of review).       Notably, Cortez does not
challenge the sufficiency of the evidence supporting the jury’s quantity finding.
The jury’s quantity finding was sufficient to trigger the enhanced penalties
under § 841(b)(1)(A). United States v. Daniels, 723 F.3d 562, 570 (5th Cir.
2013), cert. denied, 134 S. Ct. 974 (2014). Cortez has therefore failed to show
that the district court committed clear or obvious error by applying the 10-year
statutory minimum to his sentence. See Puckett, 556 U.S. at 135.
      Cortez contends that the trial court improperly admitted irrelevant and
prejudicial testimony about the horrors of methamphetamine use from a police
officer. He concedes that he did not object to the admission of that testimony.
Examination of the trial transcript shows that the challenged testimony
regarding the common characteristics of a methamphetamine user was
relevant to counter Cortez’s defense and was not unfairly prejudicial. See FED.
R. EVID. 403. Accordingly, Cortez has failed to show that there was error, plain
or otherwise, when that testimony was admitted at trial. See Puckett, 556 U.S.
at 135.
      Cortez asserts that the trial court erred by allowing a police officer to
testify regarding what Cortez said during an interrogation because he was not



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                                       No. 13-40897

given Miranda 1 warnings prior to that interrogation. Cortez’s failure to file a
motion to suppress those statements waived that suppression claim and bars
appellate review of that claim despite his allegation that the waiver was the
product of ineffective assistance of counsel. See United States v. Harris, 740
F.3d 956, 971-72 (5th Cir. 2014), petition for cert. filed (Apr. 10, 2014) (No. 13-
9686); United States v. Chavez-Valencia, 116 F.3d 127, 129-34 (5th Cir. 1997).
Even if we were to review this claim for reversible plain error, the admitted
testimony did not affect Cortez’s substantial rights or seriously affect the
fairness, integrity, or public reputation of judicial proceedings because the jury
was advised of the lack of Miranda warnings and there was overwhelming
evidence of Cortez’s guilt. See Puckett, 556 U.S. at 135.
      Although Cortez seeks our consideration of his claims that his trial
counsel was ineffective on various grounds, the record is not sufficiently
developed to permit review of those claims on direct appeal. See United States
v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014), petition for cert. filed (June 4, 2014)
(No. 13-10484). Cortez argues that the cumulative effect of all of his appellate
claims proves that he was denied a fair trial. As he has not shown any error
in those claims, he also has not shown cumulative error. See United States v.
Delgado, 672 F.3d 320, 344 (5th Cir. 2012).
      The judgment of the district court is AFFIRMED.




      1   Miranda v. Arizona, 384 U.S. 436 (1966).


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