United States v. Gentles

United States Court of Appeals
For the First Circuit

No. 09-1431

UNITED STATES OF AMERICA,

Appellee,

v.

LEROY GENTLES,

Defendant, Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Howard, Selya, and Thompson,
Circuit Judges.

Robert Herrick for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.

September 2, 2010
 THOMPSON, Circuit Judge. Defendant Leroy Gentles

(Gentles) was convicted on four counts of distributing crack

cocaine in Maine. He was sentenced to sixty-four months'

imprisonment, followed by four years' supervised release, with a

special condition of substance abuse treatment counseling. On

appeal, Gentles argues that (1) the district court abused its

discretion in denying his motion for a mistrial based on "repeated

improprieties" in the government's closing argument; (2) the

prosecutor improperly vouched for the government's witnesses,

depriving him of a fair trial; (3) the admission of prior bad acts

evidence deprived him of a fair trial; and (4) his sentence was

unreasonable. For the reasons that follow, we affirm the judgment

of the district court.

I. FACTUAL BACKGROUND

In the spring of 2006, James Bellino (Bellino), a former

crack addict, contacted agents of the Drug Enforcement

Administration (DEA) and thereafter became a paid confidential

informant (CI). Bellino testified at trial that he was motivated

by the desire "to do the right thing and straighten [his] life

around."

On May 16, 2006, Bellino informed the DEA about a man,

known on the streets as "Junior," who was selling crack cocaine in

Portland and who had been Bellino's personal drug dealer for the

past two years. Under the supervision of DEA agents, and at their

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request, Bellino placed a recorded call to "Junior's" telephone

number and arranged a meeting. During this initial conversation,

as well as subsequent recorded calls, DEA agents noticed that

"Junior" had a distinct Jamaican accent.

Early that same afternoon, and under constant audio and

visual surveillance by the DEA, Bellino drove himself to a local

market and waited for "Junior." The DEA had equipped Bellino with

an audio transmitter and $500 in serialized bills. Using

binoculars, DEA supervisor Agent Paul Wolf (Wolf) saw a black male

cross the street and enter the passenger-side door of Bellino's

sport-utility vehicle (SUV). While agents followed, Bellino drove

in a large circle through nearby streets.

Once in Bellino's SUV, "Junior" sold Bellino thirteen "50

rocks" of crack cocaine, a total of 4.9 grams, for $500.

Thereafter, the two returned to the local market and agents Wolf

and Kate Barnard (Barnard) saw "Junior" get out of Bellino's SUV

and enter a champagne colored Ford Windstar van. DEA agents

followed the van long enough to determine that its registered owner

was the defendant, Gentles--a black man. They also obtained a

driver's license photograph of him. At trial, Wolf and Bellino

testified that "Junior"--the man who entered the passenger-side

door of Bellino's vehicle--was the defendant, Gentles. Agent Jack

Daley (Daley), another member of the surveillance team, confirmed

their testimony.

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 In June 2006, Laura Bisha (Bisha), a former drug addict

and dealer, became the second CI for the DEA in its ongoing

investigation of "Junior." On June 5, 2006, Bisha gave agents the

telephone number for the person she knew as "Junior." It was the

same number that Bellino had previously provided. While DEA agents

listened in, Bisha made four recorded telephone calls to that

number. During this exchange, Bisha and "Junior" arranged to meet

at a local mall. In preparation for this meeting, DEA agents

provided Bisha with $500 in serialized bills and a backpack

equipped with a camera, microphone, and transmitter. DEA agents

observed a black Ford Taurus pull up next to Bisha as she stood

waiting in front of the mall; she climbed into the rear seat. At

trial, Bisha testified that the man sitting in the front passenger

seat, whom she knew as "Junior," was Gentles. A video recording of

the transaction showed "Junior" pass a package to Bisha. During

this transaction, "Junior" sold five grams of crack cocaine, in

fourteen separate baggies, to Bisha in exchange for $500. Once

again, agents followed "Junior" after the transaction was complete.

This led them to 22 Wilson Street--the address listed on the

registration for the Ford Windstar van.

Bisha purchased crack cocaine from "Junior" on two other

occasions: on July 20, 2006 ($800 for 4.9 grams) and on August 14,

2006 ($500 for 4.5 grams). At trial, Barnard and Agent Paul

Buchanan (Buchanan), another member of the surveillance team, both

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testified that the man they observed meeting Bisha on these two

occasions was the defendant, Gentles. Testing and analysis

following each transaction confirmed that the drugs were indeed

crack cocaine.

On July 9, 2008, Gentles was indicted on four counts of

distribution of cocaine base, also known as crack cocaine, in

violation of 21 U.S.C. § 841(a)(1). A warrant for his arrest

issued the same day, and Gentles was arrested on July 14, 2008.

Gentles's trial began on December 8, 2008. While he did

not testify, his primary defense was misidentification--that he was

not "Junior." Gentles's counsel emphasized that none of the

videotapes showed "Junior's" face, that the CIs were not credible,

that their memories had faded, and that no records connected

Gentles to the phones used in the recorded calls.

During the closing charge, the court stated that

credibility was for the jury to decide, but that the CIs' testimony

should be considered with "particular caution." The court went on

to say that lawyers' arguments and statements were not evidence.

In his closing, defense counsel argued that the CIs were

drug addicts whose testimony was "bought and paid for by the

government" and that they were "in bed" with the government. In

response to this argument, the Assistant United States Attorney

(AUSA) suggested that the CIs had undertaken risks in testifying

against Gentles and that the trial was dissimilar to those depicted

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on television. During the AUSA's rebuttal, defense counsel made

three separate objections, all of which were sustained by the

court. Once the AUSA's rebuttal was finished, the court completed

its instructions to the jury.

Immediately following the court's instructions, both

parties were called to a sidebar. While neither party objected to

the charge, defense counsel moved for a mistrial based on

statements made by the AUSA during its rebuttal. The motion was

denied. Before sending the jury to deliberate, the court reminded

the jury that even though Gentles's name appeared in the

transcripts of the recorded tapes, Gentles contested the

identification. In its final statement to the jury, the court

advised the jury to take heed that a federal criminal trial is

significantly different from what is portrayed on television.

On December 9, 2008, after two hours of deliberation, a

jury found Gentles guilty on all four counts. Thereafter, on March

31, 2009, the court sentenced Gentles to sixty-four months'

imprisonment on each count, to be served concurrently, followed by

four years' supervised release on each count, to be served

concurrently, with the additional condition of participation in

substance abuse treatment counseling. The court further

recommended enrollment in a 500 hour drug treatment program while

Gentles was serving his prison term. This appeal followed.

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II. DISCUSSION

A. Denial of Gentles's Motion for Mistrial

1. Prosecutorial Misconduct

Gentles first argues on appeal that the district court

erred in denying his motion for a mistrial based on statements made

by the AUSA during rebuttal. Gentles asserts that these statements

were based on facts not in evidence and prejudiced the outcome of

his case, warranting a new trial. We review the denial of a motion

for mistrial for an abuse of discretion. See United States v.

DeCologero, 530 F.3d 36, 52 (1st Cir. 2008). The pertinent portion

of the rebuttal that Gentles claims is impermissible went as

follows:

[AUSA]: [The CIs] were willing to come into
court in a public hearing and testify before
you all over the last couple of days. They
were willing to air their dirty laundry and
have it dragged through the courtroom, and
they were willing to accept the risk, not that
it--not that it happened in this case--

[Defense counsel]: Objection.

[The Court]: Sustained. Counsel, move on.

[AUSA]: We live in the real world, ladies and
gentlemen. In this world, the defendant is a
crack dealer. In this world, we have proven
that. This isn't CSI. There is something--
there has actually been a couple of studies
done on how shows like CSI actually deal
with--

[Defense counsel]: Objection, Your Honor.

[The Court]: Counsel, that's not in evidence.

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 [AUSA]: It's not about what's not in evidence.
The agents didn't ask what they had.
They then--

[Defense counsel]: Objection.

[The Court]: Counsel, let's just stick with
the evidence.

We begin by determining whether the AUSA's statements

constituted misconduct. As we have previously stated, the term

"misconduct" does not "suggest deliberate wrongdoing but rather .

. . a statement of fact that is mistaken or unsupported by any

evidence." United States v. Azubike, 504 F.3d 30, 38 (1st Cir.

2007). Cognizant of this definition, we think it is clear that the

AUSA's statements constitute impermissible argument and therefore

amount to prosecutorial misconduct. First, there was absolutely

no evidence presented at trial that Gentles was a violent man who

would retaliate against the CIs. Accordingly, any argument

asserting otherwise was improper. See United States v. de Leon

Davis, 914 F.2d 340, 345 (1st Cir. 1990); see also 3 Charles Alan

Wright, Nancy J. King & Susan R. Klein, Federal Practice and

Procedure § 555 (3d ed. 2004) ("It is misconduct for a prosecutor

to make an assertion to the jury of a fact, either by way of

argument or by an assumption in a question, unless there is evidence

of that fact."). Similarly and as the district court admonished,

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there was no evidence of any studies, CSI or otherwise, presented

at trial.1

Although we find that misconduct occurred, misconduct

alone is insufficient to reverse a conviction absent a showing of

prejudice. See Azubike, 504 F.3d at 38. To determine if prejudice

resulted, "the test is whether the prosecutor's misconduct so

poisoned the well that the trial's outcome was likely affected, thus

warranting a new trial." Id. at 39 (quoting United States v.

Joyner, 191 F.3d 47, 54 (1st Cir. 1999)) (internal quotation marks

omitted). This test is composed of three separate prongs. First,

we determine "whether the prosecutor's conduct was isolated and/or

deliberate"; next, we consider "whether the trial court gave a

strong and explicit cautionary instruction"; and finally we

determine "whether it is likely that any prejudice surviving the

instruction could have affected the outcome of the case." Id.

(citing Joyner, 191 F.3d at 54).

a. Statements Regarding CIs' Risk

In applying the first prong of the test, we agree with

the government that the AUSA's statements relating to risk were

unintentional, brief, and benign. See United States v. Shoup, 476

F.3d 38, 44 (1st Cir. 2007)(finding no plain error where

prosecutor's references were "relatively benign" and there was no

1
"CSI" is the abbreviation for "Crime Scene Investigation," a
television series about police investigation.

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indication that the references were "deliberate"). The moment

defense counsel objected, the court sustained the objection and told

the AUSA, "Counsel, move on." Thereafter, the AUSA never returned

to the subject of risk. Cf. Azubike, 504 F.3d at 40-42 (repeated

reference by AUSA to improper topics). Though we find the AUSA's

remarks improper, the court's immediate directive neutralized any

prejudice to Gentles.

Moving to the second prong, while the district court did

not give a curative instruction, we first note that one was not

requested. Nevertheless the court, on its own initiative,

instructed the jury twice during the opening charge and a third time

in the closing charge that lawyers' arguments were not evidence.

See United States v. Robinson, 473 F.3d 387, 398 (1st Cir.

2007)(finding no error where defendant failed to request a curative

instruction and court gave general instructions before deliberation

as to what the jury could and could not consider as evidence). The

court further instructed that if it had sustained an objection, the

jury should not speculate about what was stricken. See id. It is

a well established tenet of our judicial system that juries are

presumed to follow such instructions. United States v. Riccio, 529

F.3d 40, 45-46 (1st Cir. 2008). Given the court's ample

admonishments, it is unlikely that any prosecutorial misstatement

referencing unsubstantiated risk to the CIs sullied the jury's

verdict.

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 Lastly, applying prong three of the test, we find that

there was no prejudice because "this is not a close case and there

is no likelihood that the remarks could have affected its outcome."

Riccio, 529 F.3d at 46. Based on the record, it is clear that there

was an abundance of independent evidence that Gentles was the man

known by the CIs as "Junior."2 See id. "Considering the evidence in

this case, the 'terse character of the remarks' and the thorough

[general] instructions given by the court, it is unlikely that the

remarks altered the result of the trial." Id.; see also Joyner, 191

F.3d at 54 (standard corrective instruction sufficient to dissipate

all prejudice where there was "overwhelming evidence of [the

defendant's] guilt . . . which . . . eliminate[d] any lingering

doubt that the remarks could have unfairly prejudiced the jury's

deliberations").

b. Statements Regarding "CSI effect" and "studies"

We further conclude that the AUSA's comments about the

"CSI effect" and "studies" did not warrant a mistrial. First, as

was the case with the comments regarding risk, the moment defense

counsel objected to the remark, the court sustained the objection.

The court also admonished the AUSA by saying, "Counsel, that's not

2
The evidence admitted at trial, establishing guilt, included
DEA investigators' observation of all four transactions,
videotapes, still photographs, audio recordings capturing a
distinct Jamaican accent, the car registration of the Ford Windstar
van in Gentles's name, and lastly the house address investigators
were led to, 22 Wilson Street, which was the address listed on the
registration for the Ford Windstar van.

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in evidence." Furthermore, after the objection was sustained, the

AUSA never returned to the subject of CSI or the specific studies

about it. While the AUSA did follow up with an incomplete statement

regarding what was not in evidence, defense counsel once again

objected immediately. The court sustained the objection and

cautioned the AUSA, "Counsel, let's just stick with the evidence."

Second, while the court did not give a curative

instruction immediately following the remark, it did, during the

final instruction, caution that a federal criminal trial is very

different from what jurors see on television. This instruction was

in addition to the three other repeated instructions throughout the

trial that lawyers' arguments were not evidence. See de Leon Davis,

914 F.2d at 345 (holding that trial court's instructions to the jury

were sufficient to correct any possible prejudice where jury was

"amply admonished" on the point that argument of counsel was not

evidence, and finding it unlikely that any prejudice remained to

"infect the verdict").

Finally, any statements regarding the "CSI effect" and

"studies" did not prejudice Gentles to such an extent that the

outcome of his trial was affected. Again, there was substantial

independent evidence to convict Gentles of the crimes charged.

Furthermore, in denying Gentles's motion for a mistrial, the court

found that there was no prejudice because the AUSA "did not get into

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the actual argument . . . ." This conclusion is supported by the

record.

Based on the foregoing, we conclude that although

prosecutorial misconduct occurred, it was isolated and not

deliberate, the general instructions given to the jury on three

separate occasions that attorney arguments were not evidence were

adequate, and finally, there is no chance that the remarks made

prejudiced the outcome of Gentles's trial. After careful review of

the proceedings below, "it is clear that the district court did not

abuse its discretion in denying [Gentles's motion] for a mistrial."

Riccio, 529 F.3d at 45.

B. Improper Vouching

Gentles next argues that certain statements made by the

AUSA during his opening statement and closing argument improperly

vouched for the credibility of the CIs, prejudicing the outcome of

his trial. "[B]ecause no objection was raised at trial, we review

only for plain error." United States v. Hansen, 434 F.3d 92, 101

(1st Cir. 2006). "Review for plain error entails four showings:(1)

that an error occurred (2) which was clear or obvious and which not

only (3) affected the defendant's substantial rights, but also (4)

seriously impaired the fairness, integrity, or public reputation of

judicial proceedings." See United States v. Dávila-González, 595

F.3d 42, 47 (1st Cir. 2010)(quoting United States v. Duarte, 246

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F.3d 56, 60 (1st Cir. 2001)). We begin our analysis with a

discussion of the applicable legal framework.

"Improper vouching occurs when the government place[s]

the prestige of the United States behind a witness by making

personal assurances about the credibility of a witness . . . or

implies that the jury should credit the government's evidence simply

because the government can be trusted." Robinson, 473 F.3d at 396

(internal quotation marks omitted). "Although the prosecution's

success often depends on its ability to convince the jury of a

particular witness's credibility, it cannot entice the jury to find

guilt on the basis of a [government] agent's opinion of the

witness's veracity." United States v. Pérez-Ruiz, 353 F.3d 1, 13

(1st Cir. 2003). Gentles alleges that the AUSA improperly vouched

for the CIs on four separate occasions. We will address each in

turn.

In the first challenged remark, the AUSA said,

Unfortunately for the defendant in 2006, for
different reasons, [the CIs] had decided to
start working for the US Drug Enforcement
Administration, DEA, in an undercover
capacity.
So on these four occasions in 2006, the
defendant was not only selling crack cocaine
to [the CIs], he was selling crack cocaine to
[the] DEA.

According to Gentles, these statements by the AUSA were not based

on facts in evidence and further suggested that the CIs were agents

of the DEA. We disagree. To the contrary, the fact that the CIs

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were acting on the DEA's behalf was made clear by the AUSA during

the government's direct case. See United States v. Torres-Galindo,

206 F.3d 136, 143 (1st Cir. 2000)("The prohibition of improper

vouching is intended to keep the government from inviting a verdict

based on facts not before the jury or on a prosecutor or government

witness's personal assurance of credibility."). On direct

examination, agents described how and when the CIs came to cooperate

with the DEA, described the cooperation agreements signed by both

CIs, and testified to the dollar amount each CI was paid. Moreover,

despite Gentles's allegations, the record makes clear that the AUSA

never said that the CIs were "agents of the DEA." Furthermore, the

fact that Gentles did not object to these challenged remarks at the

time they were made, yet objected to other statements made by the

AUSA throughout the trial, indicates that even Gentles himself

failed to regard the comments as having a damaging effect. See

United States v. Procopio, 88 F.3d 21, 31 (1st Cir. 1996)("The fact

that the defense did not object also may suggest that,in the

conditions of the courtroom, the passage in question passed by as

mere rhetoric."). Accordingly, we find unpersuasive Gentles's

contention that the AUSA's remarks had the effect of bolstering the

credibility of the CIs. See United States v. Vásquez-Botet, 532 F.3d

37, 54 (1st Cir. 2008). There was no error.

Gentles's second challenge is to remarks made during the

government's closing argument. Here, the AUSA said, "[f]irst of

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all, you've got to keep in mind that [the CIs] were providing

information on a drug dealer. I would consider that public service

that they are getting paid for." The Government concedes that the

AUSA "would have been better advised to avoid using the pronoun 'I'

or describing how he would characterize the informants'

cooperation." See United States v. Smith, 982 F.2d 681, 684 & n.2

(1st Cir. 1993)(prosecutor's use of "I think" during closing

argument was improper); see also United States v. Auch, 187 F.3d

125, 131 (1st Cir. 1999)(even though prosecutor's statement did not

use "I think" language, statement conveyed a personal opinion to the

jury and was therefore improper). Nonetheless, we tend to refrain

from concluding that prosecutors improperly vouch for a witness when

their remarks are made in an attempt to counter harmful allegations

by the defense. See Pérez-Ruiz, 353 F.3d at 10; see also United

States v. Mejia-Lozano, 829 F.2d 268, 274 (1st Cir. 1987)(giving the

prosecutor "greater leeway" when improper vouching came "in response

to defense counsel's inflammatory statements").

In this case, the AUSA's remarks were in direct response

to defense counsel's arguments that the CIs were getting a "complete

pass" for their own wrongdoing, gave testimony that was "bought and

paid for by the Government," and were "in bed" with the Government.

The AUSA's closing argument was "a logical counter to the assertions

of defense counsel" that the CIs were not credible. Pérez-Ruiz, 353

F.3d at 10. Moreover, Gentles's failure to object to the remark

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suggests that even he thought the remark had little impact upon the

jury and was not prejudicial. See Procopio, 88 F.3d at 31. The

AUSA's remark did not constitute plain error.

Gentles's third vouching challenge is to statements made

by the AUSA during rebuttal. Specifically, the AUSA said,

[The CIs] weren't drug dealers looking for a
profit like [Gentles], the defendant. On
occasions that they used, they shared--they
pooled their resources together. They may
have gone to a contact to get drugs and share
with other people and under the legal
definition, that is distribution, but they
weren't doing it for profit, and there is a
big difference between that and what the
conduct of [Gentles] has been.

Gentles argues that these remarks misrepresented the evidence

because both CIs admitted to selling drugs in the past. He further

alleges that the remarks improperly conveyed the AUSA's personal

opinion to the jury.

While it is true that both Bellino and Bisha admitted on

cross-examination that they sold drugs, the AUSA elicited extensive

evidence of both cooperators' drug use and distributions, without

objection, at the outset of the AUSA's direct examination of both

CIs. See Torres-Galindo, 206 F.3d at 143 (finding no wrongdoing

where prosecutor's reference was to facts in the record). Moreover,

the AUSA's emphasis on the CIs' purchase, use, and sharing of drugs

was directly in response to Gentles's credibility attack on both CIs

for those very reasons. Specifically, Gentles suggested that

because the CIs engaged in the same conduct as he, they should not

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be believed. See United States v. Sepulveda, 15 F.3d 1161, 1189

(1st Cir. 1993)(arguments that "are incited or invited by, or fairly

respond to, defendants' closing statements" generally not considered

prejudicial, particularly where the argument does not "escalate the

level of fire and brimstone that characterized the defense's

oratory, and do not provoke a contemporaneous objection").

Furthermore, the record shows that the district court instructed the

jury on two separate occasions that it was not necessary to show

that Gentles benefitted in any way from distributing drugs in order

to convict him of the crimes charged. "[A]s we have noted many

times, we presume juries understand and follow the court's

instructions . . . ." Vásquez-Botet, 532 F.3d at 56. Accordingly,

the AUSA's remarks did not constitute plain error.

Gentles's last challenge is also to the rebuttal, where

the AUSA stated, "[t]hey were given letter immunity because the

Government wanted them to have no reservation about telling the

truth, the whole truth and nothing but the truth, and yes, that

includes their past relevant conduct which is the use, possession

and occasional distribution of crack cocaine."

Gentles contends that this remark suggested to the jury

that the Government had independently verified the CIs' testimony.

We think that is a strained interpretation indeed. Even if such an

interpretation were plausible, and we do not think that it is, we

have held that "when a prosecutor's comments, fairly viewed, are

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susceptible to two plausible meanings, one of which is

unexceptionable and one of which is forbidden, context frequently

determines meaning." United States v. Taylor, 54 F.3d 967, 979 (1st

Cir. 1995). Accordingly, this court will not "lightly infer that

a prosecutor intends an ambiguous remark to have its most damaging

meaning or that a jury, sitting through a lengthy exhortation, will

draw that meaning from the plethora of less damaging

interpretations." Id. Furthermore, we have held that "a prosecutor

properly may admit a witness's plea agreement into evidence, discuss

the details of the plea during closing arguments, and comment upon

a witness's incentive to testify truthfully." United States v. Bey,

188 F.3d 1, 7 (1st Cir. 1999). Lastly, during cross-examination of

both CIs, defense counsel insinuated that their immunity agreements

gave them an incentive to frame Gentles. Consequently, the AUSA's

remark was a "logical counter" to defense counsel's theory. Pérez-

Ruiz, 353 F.3d at 10. This remark, like all the others before it,

does not constitute plain error.

C. Evidence of Gentles's Prior Bad Acts

At trial, the AUSA elicited testimony from the CIs on

direct examination that Gentles had sold them drugs prior to their

cooperation with the DEA. On appeal, Gentles argues that this

evidence should not have been admitted under Rule 404(b) because its

sole purpose was to demonstrate his propensity to commit the crimes

charged. Alternatively, Gentles argues that even if the evidence

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was admissible under Rule 404(b), it should not have been admitted

under Rule 403 because "its probative value was substantially

outweighed by 'the danger of unfair prejudice.'" United States v.

Varoudakis, 233 F.3d 113, 121 (1st Cir. 2000) (quoting Fed. R. Evid.

403)). Because Gentles failed to object to this evidence during

trial, we again review for plain error. Hansen, 434 F.3d at 101.

We begin with the applicable legal framework.

Under Rule 404(b), evidence of a defendant's prior bad

acts may not be admitted to prove his criminal character or

propensity to commit crimes similar to those he is on trial for.3

However, Rule 404(b) does not provide an absolute bar. To be sure,

evidence of prior bad acts may be admitted if it passes two tests.

First, the evidence must have "special relevance" to an issue in the

case, and the evidence must not include "bad character or propensity

as a necessary link in the inferential chain." United States v.

Frankhauser, 80 F.3d 641, 648 (1st Cir. 1996). Prior bad act

evidence is said to have special relevance if it pertains to issues

such as the defendant's intent, knowledge, plan, absence of mistake,

or identity. Varoudakis, 233 F.3d at 118 (discussing Fed. R. Evid.

3
Rule 404(b) provides that:

Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident . . . .

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404(b)). Second, "[e]ven if the special relevance is established,

the evidence must still satisfy Rule 403" in order to be admitted.

United States v. Whitney, 524 F.3d 134, 141 (1st Cir. 2008).

In this case, both parties agree that the only contested

issue presented to the jury was the identity of "Junior"-- the man

who sold the CIs drugs. Beginning with his opening statement,

defense counsel attempted to downplay the evidence against Gentles

and focus the jury's attention on the fact that the videotapes of

the drug transactions failed to show "Junior's" face. Additionally,

defense counsel pointed out to the jury that Gentles's name was

never mentioned on the audiotapes and that while the CIs identified

Gentles as "Junior," their testimony should not be believed.

Moreover, every time recordings of the transactions were admitted,

the court reminded the jury that Gentles did not concede that he was

a party to any conversation and further, that it was up to the jury

to decide whether the voice that was recorded was his.

We think it is undeniable that the evidence of Gentles's

prior encounters with the CIs was specially relevant to the

contested issue of identity--the sole issue at trial--particularly

because the only witnesses who had face-to-face encounters with

"Junior" were the CIs. Furthermore, this evidence had the requisite

special relevance required by Rule 404(b) because it allowed the

jury to understand the mutual trust between Gentles and the CIs that

made Gentles willing to respond to their requests to purchase drugs.

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See Varoudakis, 233 F.3d at 121 (finding that car fire evidence was

specially relevant under Rule 404(b) because it demonstrated the

background and relationship between the defendant and co-

conspirator). Nonetheless, our discussion does not end here. Even

when evidence satisfies the special relevance required by Rule

404(b), it must also withstand scrutiny under Rule 403.

Rule 403 requires the exclusion of evidence if "its

probative value is substantially outweighed by 'the danger of unfair

prejudice.'"4 Varoudakis, 233 F.3d at 121 (quoting Fed. R. Evid.

403). Rule 403 makes clear that defendants are protected only

"against unfair prejudice, not against all prejudice." United

States v. Rivera-Gomez, 67 F.3d 993, 997 (1st Cir. 1995). On

appeal, a district court's balancing determination under Rule 403

of probative value versus unfair prejudice is entitled to deference.

See id. Accordingly, "only rarely--and in extraordinarily

compelling circumstances--will we, from the vista of a cold

appellate record, reverse a district court's on-the-spot judgment

concerning the relative weighing of probative value and unfair

4
Rule 403 states in its entirety that:

Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative
evidence.

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effect." United States v. Li, 206 F.3d 78, 84-85 (1st Cir.

2000)(internal quotation marks and citation omitted).

Gentles contends that even if his past drug transactions

with the CIs had special relevance, the evidence was nonetheless

unfairly prejudicial because other evidence was available to prove

identity and because the prior bad act was identical to the current

crimes charged. We disagree. While there was a substantial amount

of independent evidence in this case that could lead a reasonable

juror to conclude that Gentles was "Junior," none of the recordings

ever showed "Junior's" face, nor was Gentles's name ever heard on

any of the recordings. For this reason, the court continuously

reminded the jury that Gentles disputed his involvement in the four

transactions. Indeed, defense counsel used these facts as his

primary target against the Government's case in an attempt to create

reasonable doubt in the minds of the jury. Moreover, it is

undisputed that the only two witnesses who ever had face-to-face

contact with "Junior" during the transactions were the CIs.

Accordingly, we find unconvincing Gentles's argument that other

evidence was available in this case "rendering negligible [the

AUSA's] need to [prove identity] by the prior bad acts." United

States v. Lynn, 856 F.2d 430, 436 (1st Cir. 1988).

Gentles next argues that because his prior bad acts were

identical to the crimes he was on trial for, the evidence was

unfairly prejudicial because it allowed the jury to infer that

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Gentles had a criminal propensity to commit the crimes charged. We

have previously noted that,

[t]here is clearly a tension between Rules
404(b) and 403. The more similar the prior bad
act evidence is to the charged crime, the more
likely it is to be deemed relevant under
404(b). Yet the more the prior bad act
resembles the crime, the more likely it is
that the jury will infer that a defendant who
committed the prior bad act would be likely to
commit the crime charged.

Varoudakis, 233 F.3d at 123. Gentles's reliance on Varoudakis is

misplaced. In Varoudakis we held that while the evidence did have

special relevance under Rule 404(b), it was nonetheless inadmissible

under Rule 403 because it was unfairly prejudicial to the defendant.

Id. at 118-126. In so holding we stated that, "the probative value

of the . . . evidence was minimal." Id. at 123. We further found

that, "[t]he government . . . did not need the evidence to prove

Varoudakis's knowledge or intent . . . ." Id.

As we previously stated, the probative value of Gentles's

prior encounters with the CIs was significant. Not only was

identity the sole contested issue at trial, but the CIs were the

only two witnesses ever to see "Junior's" face during the course of

the four separate transactions. Furthermore, while the Government

did present an arsenal of independent evidence at trial, defense

counsel repeatedly reminded the jury that there was no picture of

Gentles's face and that they never heard Gentles's name on any of

the recordings. The probative value of Gentles's prior drug

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transactions with the CIs, which demonstrated their prior

familiarity with Gentles, was not substantially outweighed by the

danger of unfair prejudice. No abuse of discretion occurred.

D. Reasonableness of Gentles's Sentence

Gentles's final argument challenges the reasonableness of

the sentence imposed by the district court. Gentles was sentenced

to sixty-four months' imprisonment, followed by four years of

supervised release and substance abuse treatment counseling. On

appeal, Gentles argues that the court issued a sentence greater than

necessary to achieve the purposes of 18 U.S.C. § 3553 by over-

relying on the Sentencing Guidelines (Guidelines) and overestimating

Gentles's risk of recidivism.

"We review a district court's sentence for

reasonableness, which involves a procedural as well as substantive

inquiry." United States v. Politano, 522 F.3d 69, 72 (1st Cir.

2008).

We first determine whether the district court
made any procedural errors "such as failing to
calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on
erroneous facts, or failing to adequately
explain the chosen sentence--including an
explanation for any deviation from the
Guidelines range."

Id. (quoting Gall v. United States, 128 S.Ct. 586, 597 (2007)).

Gentles concedes that the district court properly calculated the

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applicable guidelines sentencing range (GSR) and simultaneously

fails to mention any other possible procedural error. Accordingly,

on appeal we consider only "the substantive reasonableness of the

sentence imposed and review the sentence for abuse of discretion."

Id.

Under this standard, we afford the district court wide

discretion in sentencing. "[A]fter the court has calculated the

GSR, sentencing becomes a judgment call . . . . " United States v.

Martin, 520 F.3d 87, 92 (1st Cir. 2008). Ultimately, "the linchpin

of a reasonable sentence is a plausible sentencing rationale and a

defensible result." Id. at 96. "Where the district court has

substantially complied with this protocol and has offered a

plausible explication of its ultimate sentencing decision, we are

quite respectful of that decision." United States v. Dixon, 449

F.3d 194, 204 (1st Cir. 2006).

Gentles argues that the district court, in setting

Gentles's base offense level, erroneously adopted the ratio

disparity between powder and crack cocaine that the Guidelines

provide and as a result, essentially treated street-level,

nonviolent drug offenses as equal to the wholesale trafficking of

cocaine, heroin, or marijuana. Citing Kimbrough v. United States,

128 S.Ct. 558 (2007), Gentles concedes that the sentencing court is

not obligated to vary from the GSR, but asserts that in this case,

it nonetheless should have done so. We disagree. As an initial

-26-
matter, the fact that the sentencing court chose to apply, rather

than vary from, the GSR ratio is not a basis for reversal. See

United States v. Gibbons, 553 F.3d 40, 46 (1st Cir. 2009). As this

court explained in Gibbons, Kimbrough does not require sentencing

courts to consider the disparity between powder and crack cocaine,

but instead, gives them the discretion to do so. Id. Second,

although Gentles avers that the GSR applied to his case was unduly

harsh, he failed to ask the sentencing court for a variant sentence

based on the disparity between powder and crack cocaine. We think

commonsense dictates that Gentles cannot now benefit from such a

glaring omission through an attempt to transfer responsibility to

the district court.

Additionally, the court's conclusion that "this [was] a

very serious drug conviction" is not only supported by the record,

but is "also a reflection of a permissible consideration in the

sentencing calculus." Dixon, 449 F.3d at 204. Over the course of

four transactions, Gentles sold a total of 19.3 grams of crack

cocaine. Moreover, contrary to Gentles's contentions, the court did

not impose the sentence based on a "faulty analysis of [Gentles's]

future risks of recidivism." Instead, the court focused on a

variety of factors, including specific deterrence, protecting the

public from future crime, and Gentles's long history of drug use--

all "permissible sentencing consideration[s]." Id. at 205. To be

sure, the court stated,

-27-
 I'm not persuaded that Mr. Gentles has
overcome his [drug] problem and will not
continue to be tempted by this kind of
activity. I think there is a real need for
specific deterrence of Mr. Gentles, as well as
protecting the public from further crimes.
I'm troubled, certainly, that he has asked to
be relieved of any supervised release
condition that would involve counseling. That
certainly tells me he doesn't understand
addiction if he thinks there's some program in
prison's [sic] going to cure him and that he
doesn't need [counseling] later.

This was a reasonable assessment. According to Gentles's Pre-

Sentence Report (PSR), Gentles had a history of substance abuse that

began when he was a teenager. Furthermore, over the course of seven

years, Gentles had seven charges brought against him for drug-

related crimes.

It merits a brief discussion to note the irony that the

sentence imposed was actually advantageous to Gentles. With a

sentencing range of fifty-seven to seventy months, the district

court imposed a sixty-four month sentence, directly in the middle.

The district court would have been within its discretion to impose

a higher sentence based on Gentles's past attempted murder

conviction. In declining to do so, the court stated,

[W]hat I'm going to do here is impose a
sentence that's right in the middle of the
guideline range, which is to say 64 months.
I'm not going higher than that despite
the attempted murder conviction. I'm not
persuaded that that is necessarily a
recidivist crime that predicts that Mr.
Gentles will continue to engage in [that type]

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 of conduct. This is quite a different kind of
conduct that he's convicted of here.

We think the court's explanation on this issue refutes any lingering

contention that the court did not accurately consider the § 3553(a)

factors. Finally, we note that on the day that Gentles was arrested

for the crimes discussed in this appeal, 3.5 grams of crack cocaine

were found in his sock. However, that amount was not considered in

calculating Gentles's offense level. Had it been, the sentencing

range of fifty-seven to seventy months would have increased to

seventy to eighty-seven months and Gentles would undoubtedly be

serving a longer sentence.

In any event, the "district court was well within its

discretion to sentence [Gentles] to [sixty-four] months'

imprisonment, a sentence [in the middle] of the GSR." Gibbons, 553

F.3d at 47. The sentence was not unreasonable.

III. CONCLUSION

For the foregoing reasons, Gentles's conviction and

sentence are affirmed.

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