UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4295
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JORGE ESPINOSA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Fox, Senior
District Judge. (4:15-cr-00068-F-5)
Submitted: January 31, 2017 Decided: February 10, 2017
Before WILKINSON, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North
Carolina, for Appellant. John Stuart Bruce, United States
Attorney, Jennifer P. May-Parker, First Assistant United States
Attorney, Barbara D. Kocher, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jorge Espinosa appeals from his conviction after a jury
trial for conspiracy to possess with the intent to distribute 5
kilograms or more of cocaine, in violation of 21 U.S.C. § 846
(2012), and his resulting 188-month sentence. Espinosa argues
that the district court erred in denying his motion for a
mistrial and imposing a sentence that was greater than
necessary. Finding no error, we affirm.
First, Espinosa assigns error to the district court’s
denial of his motion for a mistrial, which was predicated on the
prosecutor’s questioning of a law enforcement witness regarding
Espinosa’s post-arrest, post-Miranda * silence. We review the
denial of a motion for a mistrial for an abuse of discretion.
See United States v. Johnson, 587 F.3d 625, 631 (4th Cir. 2009);
United States v. Wallace, 515 F.3d 327, 330 (4th Cir. 2008) (“We
review . . . a district court’s denial of a motion for a
mistrial . . . for an abuse of discretion.”). A district court
abuses its discretion when “it has acted arbitrarily or
irrationally[,] . . . has failed to consider judicially
recognized factors constraining its exercise of discretion, or
when it has relied on erroneous factual or legal premises.”
* Miranda v. Arizona, 384 U.S. 436 (1966).
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L.J. v. Wilbon, 633 F.3d 297, 304 (4th Cir. 2011) (alterations
in original) (internal quotation marks omitted).
Prosecutorial comment on a defendant’s invocation of rights
pursuant to Miranda is forbidden. See Doyle v. Ohio, 426 U.S.
610, 618 (1976) (opining that “it would be fundamentally unfair
and a deprivation of due process to allow the arrested person’s
silence to be used to impeach an explanation subsequently
offered at trial”). Miranda assures a defendant that his
silence or invocation of the right to counsel will not be used
against him at trial; thus, the Supreme Court has explained, to
allow the prosecution to comment at trial on the defendant’s
decision to exercise that right violates the “implicit assurance
[afforded by Miranda] ‘that silence will carry no penalty.’”
Greer v. Miller, 483 U.S. 756, 762 (1987) (quoting Doyle, 426
U.S. at 618). In Greer, the Supreme Court articulated that the
holding of Doyle, rather than prohibiting all reference to or
mention of the defendant’s silence, was “that the Due Process
Clause bars the use for impeachment purposes of a defendant’s
postarrest silence.” Greer, 483 U.S. at 763 (internal citation
omitted). Thus, “[w]hile a single comment alone may sometimes
constitute a Doyle violation, the Supreme Court’s opinion in
Greer makes clear that a single mention does not automatically
suffice to violate a defendant’s rights when the government does
not specifically and expressly attempt to use—as was attempted
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in Doyle and in Greer—the improper comment to impeach the
defendant.” United States v. Stubbs, 944 F.2d 828, 835 (11th
Cir. 1991).
Such comments violate due process only if they “so infected
the trial with unfairness as to make the resulting conviction a
denial of due process.” Donnelly v. DeChristoforo, 416 U.S.
637, 643 (1974). To obtain a new trial on this basis, Espinosa
must show both “(1) that the government’s remarks were in fact
improper and (2) that the remarks prejudicially affected the
defendant’s substantial rights so as to deprive the defendant of
a fair trial.” United States v. Higgs, 353 F.3d 281, 330 (4th
Cir. 2003) (citation and internal quotation marks omitted). In
determining whether Espinosa has made the requisite showing of
prejudice with respect to any particular comment, we must look
to a number of factors, including: (1) the degree to which the
prosecutor’s remarks have a tendency to mislead the jury and to
prejudice the accused; (2) whether the remarks were isolated or
extensive; (3) absent the remarks, the strength of competent
proof introduced to establish the guilt of the accused; and
(4) whether the comments were deliberately placed before the
jury to divert attention to extraneous matters. Id. Also
relevant to this inquiry is “the issuance of curative
instructions from the court,” Humphries v. Ozmint, 397 F.3d 206,
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218 (4th Cir. 2005) (en banc), which the jury is presumed to
follow, Richardson v. Marsh, 481 U.S. 200, 206 (1987).
An attempted Doyle violation amounts to a claim of
prosecutorial misconduct, which violates due process if it so
egregious that it effectively denies the defendant a fair trial.
Greer, 483 U.S. at 765. When reviewing such a claim, the
reviewing court must evaluate the challenged remark “in
context.” Id. at 766 (internal quotation marks omitted).
Here, the testifying officer was asked what response
Espinosa made after he was read his Miranda rights. The officer
testified that Espinosa responded that he did not wish to speak
with him. However, as the officer left the room he made a
comment regarding Espinosa’s father. To this comment, which was
not presented as a question, the defendant made an incriminating
statement, which was properly admitted: “if you let me speak to
my dad, I’ll tell you where the other kilos are.” While
Sergeant Weeks’ testimony made reference to the Defendant’s
post-arrest silence, the Government was not using or attempting
to use the fact of the Defendant’s silence against him.
Instead, the comment was “in the context of the officer[]’[s]
narrative[] regarding [the defendant’s] . . . arrest.”
Noland v. French, 134 F.3d 208, 216 (4th Cir. 1998). In
addition, defense counsel recognized that there was no Doyle
violation, and raised Espinosa’s invocation of his right to
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silence when cross-examining Weeks. We conclude that the court
did not abuse its considerable discretion in denying the motion
for a mistrial. See Noland, 134 F.3d at 216 (holding
prosecutor’s argument that related to voluntary statement after
Miranda, rather than to silence itself, was not a Doyle
violation).
Next, Espinosa contends that a sentence below the
Sentencing Guidelines range would have been appropriate and
afforded adequate deterrence to Espinosa’s criminal conduct,
particularly in light of his limited criminal history. We
review a sentence for reasonableness, applying an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 46
(2007). We first review for significant procedural error, and
if the sentence is free from such error, we then consider
substantive reasonableness. Id. at 51. Espinosa contends that
his sentence is substantively unreasonable. Substantive
reasonableness is determined by considering the totality of the
circumstances, and if the sentence is within the
properly-calculated Guidelines range, this court applies a
presumption of reasonableness. United States v. Strieper, 666
F.3d 288, 295 (4th Cir. 2012).
“Any sentence that is within or below a properly calculated
Guidelines range is presumptively [substantively] reasonable.
Such a presumption can only be rebutted by showing that the
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sentence is unreasonable when measured against the 18 U.S.C.
§ 3553(a) [(2012)] factors.” United States v. Louthian, 756
F.3d 295, 306 (4th Cir. 2014) (internal citation omitted). The
district court considered that the offense involved Espinosa’s
participation in a conspiracy to distribute a large amount of
cocaine. Espinosa delivered a kilogram of cocaine to a deal
involving a confidential informant, possessed a firearm, and hid
16 kilograms of cocaine, worth approximately $400,000, the
location of which he did not disclose. The court noted the
defendant’s age, his lack of prior criminal history, and the
possibility Espinosa was motivated to protect his father, a
coconspirator. The court determined that these circumstances
were insufficient to mitigate the totality of the circumstances.
The court recognized its obligation to impose a sentence
sufficient but not greater than necessary to comply with
sentencing purposes, and compared the sentencing ranges and
factors of Espinosa’s coconspirators, but given the highly
addictive nature of cocaine and the violence associated with it,
and that the court was troubled by Espinosa’s failure to
disclose the location of 16 kilograms of cocaine, the court
concluded that a sentence of 188 months was necessary. Espinosa
has not rebutted the presumption of reasonableness. Thus, the
sentence was not an abuse of discretion.
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Accordingly, we affirm the judgment. We deny Espinosa’s
motion to file a pro se supplemental brief. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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