IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50270 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

JOSÉ FERNANDO LUCERO-HERNANDEZ, also known as José Hernandez Lucero,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-99-CR-1224-2-DB -------------------- October 17, 2000

Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

José Fernando Lucero-Hernandez (“Lucero”) appeals from his

conviction of possession with intent to distribute marijuana and

conspiracy to possess with intent to distribute marijuana.

Lucero contends that the Government infringed on his right to

compulsory process of José Ayala. According to Lucero, the

prosecutor made clear that Ayala would lose sentencing

adjustments for acceptance of responsibility and his minor role

in the offense were he to testify on Lucero’s behalf,

intimidating Lucero into invoking his privilege against self-

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-50270 -2-

incrimination. Lucero contends that the district court erred by

permitting Ayala not to testify without stating personally that

he was invoking his privilege against self-incrimination.

Lucero cannot demonstrate error, plain or otherwise, on his

contention that the Government substantially interfered with his

right of compulsory process, a contention that he raises for the

first time on appeal. United States v. Thompson,

(5th Cir. 1997), cert. denied,

(1998); United

States v. Calverley,

(5th Cir. 1994)(en

banc). The record demonstrates that Ayala invoked his right

against self-incrimination on the advice of counsel. Neither

counsel’s comments that he wished to avoid losing the benefits of

Ayala’s plea bargain nor the prosecutor’s recitation of the terms

of his understanding with Ayala indicated that Ayala necessarily

would be punished in any way were he to testify on Lucero’s

behalf.

Lucero has failed to brief adequately his contention that

the district court erred by allowing Ayala not to testify without

stating personally that he was invoking his privilege against

self-incrimination. See United States v. Heacock,

(5th Cir. 1994). We do not consider that contention.

Lucero’s appeal is frivolous. Howard v. King,

(5th Cir. 1983). The appeal therefore is dismissed.

APPEAL DISMISSED. 5TH CIR. R. 42.2.