[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-14109 JULY 13, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 8:09-cr-00228-VMC-EAJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRANCE RILEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 13, 2011)
Before EDMONDSON, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
Terrance Riley appeals his convictions and bottom-of-the-guidelines-range
262-month sentence for one count of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1), and one count of possessing crack cocaine, in
violation of 21 U.S.C. § 844(a).
I.
At 2:30 a.m. on the morning of July 14, 2008, two police officers observed
Riley riding a bicycle without a light. When the officers attempted a stop, Riley
dismounted the bike, took off on foot, and the officers gave chase. After being
slowed by his struggles to clear a fence, Riley reached into the waistband of his
pants and pulled out a handgun. Right after Riley drew the firearm, one officer
caught up to him and tackled him to the ground, causing Riley to drop his weapon.
During the struggle with that officer, Riley tried to grab the gun he had dropped,
but the other officer reached the scene of the struggle and pushed the pistol out of
Riley’s reach. Once Riley was subdued and placed under arrest, the officers
searched him and found a vial containing crack cocaine.
At Riley’s trial, both arresting officers testified to the events detailed above
that led up to Riley’s arrest. Both officers identified the firearm and the vial of
crack cocaine that the government had introduced into evidence as the same
firearm and vial that were in Riley’s possession on the morning of his arrest. The
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government introduced a stipulation by Riley that he had been convicted of a
felony before the morning of his arrest.
The government also introduced into evidence three audio recordings of
phone calls, which Riley had made while in jail after his arrest. The recordings
contained admissions made by Riley regarding his possession of crack and a
firearm on the morning of his arrest. The government authenticated the calls using
the testimony of an employee of the jail familiar with the telephone recording
system and the testimony of a federal agent who had taken Riley into federal
custody. The federal agent positively identified Riley’s voice in the telephone
recordings based on an hour-long conversation he had in the car with Riley while
transporting him from the local jail to a federal detention facility and a
conversation between the two that took place at Riley’s initial court appearance.
After the government rested, Riley orally moved for a mistrial based on the
federal agent’s testimony about his conversation with Riley at Riley’s initial
appearance. Riley’ attorney argued that the agent’s testimony had placed her in
the position of being both Riley’s attorney and a material witness because of facts
she knew about the initial appearance. After hearing a proffer from Riley’s
attorney, as well as testimony from that attorney’s secretary and the federal agent
who had identified Riley’s voice, the court denied the motion for a mistrial. The
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district court, after listening to her proffer, also refused to allow Riley’s attorney to
take the stand.
The jury found Riley guilty on both counts, and a few days later Riley filed
a motion for new trial, arguing error in the district court’s admission of the
recordings and in the court’s refusal to allow his attorney to take the stand, which
hindered him from fully developing his defense. The district court denied that
motion.
Due to Riley’s extensive criminal history, his guidelines range for the felon-
in-possession count, which neither party objected to at the sentence hearing, was
262 to 327 months imprisonment. At the hearing, the district court imposed a total
sentence of 262 months — concurrent sentences of 262 months for the felon-in-
possession count and 36 months for the narcotics possession count. After
imposing the sentence the court observed that “the guidelines are advisory” and
found, after considering “all of the factors identified in [18 U.S.C. § 3553(a)],”
that “the sentence imposed is sufficient but not greater than necessary.” The court
explained that a guidelines range sentence was warranted because of Riley’s
extensive criminal history, which had increased in severity over the course of his
criminal career. Because of Riley’s mental health issues, however, the court found
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that a bottom-of-the-guidelines-range sentence was appropriate. Riley timely
appealed from his conviction and sentences.
II.
Riley contends that the district court abused its discretion in denying his
motion for a new trial because the district court admitted the recordings without
proper authentication and erroneously excluded impeachment testimony by
preventing his attorney from taking the witness stand.
We review a district court’s denial of a motion for a new trial only for an
abuse of discretion. United States v. Vallejo, 297 F.3d 1154, 1163 (11th Cir.
2002). On a defendant’s motion, the district court “may vacate any judgment and
grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). A
district court may grant a new trial based on an error in admitting statements only
if “a significant possibility . . . exist[s] that, considering the other evidence
presented by both the prosecution and the defense, the statement[s] had a
substantial impact upon the verdict of the jury.” United States v. Arbolaez, 450
F.3d 1283, 1290 (11th Cir. 2006) (quotation marks and alterations omitted). In
other words, “[e]videntiary . . . errors do not constitute grounds for reversal unless
there is a reasonable likelihood that they affected the defendant’s substantial
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rights; where an error had no substantial influence on the outcome, and sufficient
evidence uninfected by error supports the verdict, reversal is not warranted.” Id.
Both of Riley’s alleged errors focus on the admission of the recorded phone
calls and his inability to fully challenge the credibility of the federal agent who
authenticated Riley’s voice on those recordings. But even if we assume that
admission of the recordings and the refusal to allow the jury to hear the testimony
of Riley’s attorney were in error, Riley fails to show that the errors had “a
substantial impact on the verdict of the jury.” The two law enforcement officers
who chased, wrestled with, and arrested Riley both testified that Riley had a
firearm at the time of arrest, that they found a vial of crack cocaine in his pocket
after the arrest, and that the gun and the vial that the government introduced as
evidence at trial were the same ones in Riley’s possession on the morning of his
arrest. That testimony would not have been called into doubt by any of the
testimony proffered by Riley’s attorney or her secretary regarding the federal agent
and Riley’s initial appearance. There was ample unchallenged evidence for the
jury to find Riley guilty beyond a reasonable doubt, making the alleged
evidentiary errors harmless. Accordingly, the district court did not abuse its
discretion in denying Riley a new trial.
III.
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Riley also contends that his sentence is procedurally and substantively
unreasonable. He argues that the district court’s explanation of his sentence was
inadequate, rendering the sentence procedurally unreasonable. Riley also argues
that his sentence was substantively unreasonable because the statutory minimum
for his convictions — 180 months imprisonment — would have been adequate to
deter him and protect the public from future harm.
We review the reasonableness of a sentence only for an abuse of discretion,
and we use a two step process. United States v. Tome, 611 F.3d 1371, 1378 (11th
Cir. 2010). First, we must “ensure that the district court committed no significant
procedural error, 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 clearly erroneous facts, or failing to
adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51,
128 S.Ct. 586, 597 (2007). When the district court “listen[s] to the evidence and
arguments and [is] aware of the various factors [a] defendant put forward for a
lesser sentence” while stating it has considered the § 3553(a) factors, it does not
procedurally err by failing to give a detailed explanation of the sentence. United
States v. Irey, 612 F.3d 1160, 1194–95 (11th Cir. 2010) (en banc).
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If we find the sentence to be procedurally sound, the second step is to
review the sentence’s substantive reasonableness, considering “the totality of the
facts and circumstances.” See Irey, 612 F.3d at 1189. “[O]rdinarily we . . . expect
a sentence within the Guidelines range to be reasonable.” United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005). We will vacate a sentence for
substantive unreasonableness “if, but only if, we are left with the definite and firm
conviction that the district court committed a clear error of judgment in weighing
the § 3553(a) factors by arriving at a sentence that lies outside the range of
reasonable sentences dictated by the facts of the case.” Irey, 612 F.3d at
1190 (quotation marks omitted). “The party challenging the sentence bears the
burden to show it is unreasonable in light of the record and the § 3553(a) factors.”
Tome, 611 F.3d at 1378.
The district court’s explanation for Riley’s sentence was adequate. The
court stated that it had considered the § 3553(a) factors and the advisory
guidelines range, and the court acknowledged Riley’s arguments for a lesser
sentence. Additionally, in determining Riley’s sentence, the court explained in
detail why it thought a sentence within the guidelines range was warranted and
why it found a sentence at the bottom of that range appropriate. In doing so, the
court considered both Riley’s extensive criminal history and his mitigating mental
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health problems. Accordingly, Riley has not shown that his sentence was
procedurally unreasonable.
His sentence was also substantively reasonable. The district court expressed
concern about Riley’s extensive criminal history, but it also found that his mental
health issues allowed for some mitigation of his sentence. Given the district
court’s careful balancing of those factors, Riley has not left us with a definite and
firm conviction that the court committed a clear error of judgment by imposing a
bottom-of-the-guidelines-range sentence instead of a below-the-guidelines-range
sentence under the facts of this case.1
AFFIRMED.
1
Riley also contends that his sentence should be vacated because the district court did not
personally address him and offer him the opportunity to allocute. At the sentence hearing,
however, Riley’s attorney informed the district court that she had advised Riley to remain silent
during the hearing. The district court explicitly acknowledged that during the hearing, stating
that the “parties have made statements in their behalf or have waived the opportunity to do so” to
which neither Riley nor his attorney objected. Because Riley invited any error regarding any
denial of his right to allocute, there is no reversible error. United States v. Love, 449 F.3d 1154,
1157 (11th Cir. 2006).
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