Carrillo-Lopez

MEMORANDUM *

Defendant-Appellant Jesus Salvador Carrillo-Lopez appeals from his jury conviction and sentencing for possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841 (a)(1) and 841(b)(l)(A)(ii)(II), and importation of that cocaine into the United States, in violation of 21 U.S.C. §§ 952 (a), 960(a)(1) and 960(b)(l)(B)(ii). We affirm the conviction and sentence. Because the facts are known to the parties, we do not relate them in detail.

We review de novo “whether references to a defendant’s silence violate the Fifth Amendment privilege against self-incrimination,” United States v. Bushyhead, 270 F.3d 905, 911 (9th Cir.2001), and whether the prosecutor has shifted the burden of proof to the defendant, see United States v. Mares, 940 F.2d 455, 461 (9th Cir.1991).

Because Appellant was not in custody at the time he “deflated” and said “Okay, okay,” United States v. Hernandez, 322 F.3d 592, 597 (9th Cir.2002), no Fifth Amendment right had attached, United States v. Oplinger, 150 F.3d 1061, 1066-67 (9th Cir.1998). Therefore, the prosecutor’s references to Agent Mellon’s testimony did not violate Appellant’s Fifth Amendment rights. United States v.…