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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-10571
Non-Argument Calendar
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D.C. Docket No. 4:15-cr-00012-CDL-MSH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARSENIO BRUNDIDGE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(September 13, 2017)
Before MARCUS, WILSON and BLACK, Circuit Judges.
PER CURIAM:
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Arsenio Brundidge appeals his convictions and total 235-month sentence for
possession of a firearm by a convicted felon and possession of cocaine, violations
of 18 U.S.C. §§ 922(g)(1) & 924(e)(1) and 21 U.S.C. § 844, respectively.
Brundidge asserts: (1) the Government’s statements during closing arguments were
improper and caused substantial prejudice; and (2) his prior conviction for Georgia
burglary did not qualify as a predicate offense under the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(e). After review,1 we affirm.
I. DISCUSSION
A. Prosecutorial misconduct
“In determining whether there was prosecutorial misconduct, we examine
whether the prosecutor’s remarks were (1) improper and (2) prejudicially affected
the defendant’s substantial rights.” United States v. Azmat, 805 F.3d 1018, 1044
(11th Cir. 2015). “Prosecutorial misconduct must be considered in the context of
the entire trial, along with any curative instruction.” United States v. Lopez, 590
F.3d 1238, 1256 (11th Cir. 2009).
“[A]lthough a prosecutor may not exceed the evidence presented at trial
during her closing argument, she may state conclusions drawn from the trial
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We review Brundidge’s claim of prosecutorial misconduct for plain error because
Brundidge did not object to the Government’s closing arguments at trial. See United States v.
Azmat, 805 F.3d 1018, 1045 (11th Cir. 2015). We review for plain error when a defendant fails
to object to an ACCA enhancement before the district court. United States v. Jones, 743 F.3d
826, 828 (11th Cir. 2014). An error is “plain” if the asserted error is clear from the plain
meaning of a statute, constitutional provision, or from a holding of the Supreme Court or this
Court. United States v. Rodriguez, 627 F.3d 1372, 1381 (11th Cir. 2010).
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evidence.” United States v. Reeves, 742 F.3d 487, 505 (11th Cir. 2014). Thus, an
issue raised by a defendant during closing is fair game for the prosecution on
rebuttal. Id.; see also United States v. Bernal-Benitez, 594 F.3d 1303, 1315 (11th
Cir. 2010) (noting it is not improper for a prosecutor to mention the defendant has
the same subpoena powers as the government, particularly when done in response
to the prosecutor’s failure to call a specific witness).
As part of its obligation to prove guilt beyond a reasonable doubt, the
government may not make comments that would shift the burden of proof to the
defendant. Bernal-Benitez, 594 F.3d at 1315. However, the prosecutor may
comment on the failure of defense counsel, as opposed to the defendant, to counter
or explain evidence. See Bernal-Benitez, 594 F.3d at 1315 (holding the
prosecutor’s comment was merely a request the jury closely examine the record for
support of defense counsel’s attacks).
Brundidge does not establish the Government’s statements during closing
arguments constitute plain error. The Government’s statement that Deputy Powell
previously knew Brundidge was not calculated to mislead or inflame the jury’s
passions. See Azmat, 805 F.3d at 1045 (“A prosecutor’s remarks, suggestions,
insinuations, and assertions are improper when they are calculated to mislead or
inflame the jury’s passions.”). Further, the Government was allowed to rebut
defense counsel’s argument on this issue. See Reeves, 742 F.3d at 505 (“[T]he
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prosecutor, as an advocate, is entitled to make a fair response to the arguments of
defense counsel.”).
The Government also did not shift the burden of proof in addressing defense
counsel’s arguments on Deputy Powell’s credibility. The Government was
allowed to respond to defense counsel’s arguments on this issue. Id. Moreover,
the Government may request the jury closely examine the evidence for support of
defense counsel’s attacks. Bernal-Benitez, 594 F.3d at 1315. And the court cured
any undue prejudice by explaining the Government’s burden of proof in its jury
instructions. See id. (concluding the court, following closing argument, cured any
undue prejudice in its instruction on the government’s burden of proof).
Although the Government speculated whether Brundidge stole the firearm,
the court quickly provided a curative instruction, stating the jury should not
speculate about that issue because it was not an issue in the case. We presume the
jury followed the district court’s curative instruction. Lopez, 590 F.3d at 1256.
Under a plain error standard of review, it is not plain the Government’s statement
was incurable. See United States v. Rodriguez, 627 F.3d 1372, 1381 (11th Cir.
2010).
Brundidge does not establish the cumulative effects of the alleged errors
denied him a fair trial. See Lopez, 590 F.3d at 1258 (stating in addressing a claim
of cumulative error, we examine the trial as a whole to determine whether the
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defendant was afforded a fundamentally fair trial). Brundidge did not establish
plain error from the Government’s closing arguments, and there can be no
cumulative error where there are no individual errors. See Azmat, 805 F.3d at
1045. Thus, his convictions are affirmed.
B. ACCA
At the time of Brundidge’s conviction in 2010, Georgia’s burglary statute
provided:
A person commits the offense of burglary when, without authority and
with the intent to commit a felony or theft therein, he enters or
remains within the dwelling house of another or any building, vehicle,
railroad car, watercraft, or other such structure designed for use as the
dwelling of another or enters or remains within any other building,
railroad car, aircraft, or any room or any part thereof . . . .
United States v. Gundy, 842 F.3d 1156, 1164 (11th Cir. 2016) (citing Ga. Code
Ann. § 16-7-1(a) (2011)). In Gundy, we held the Georgia statute was divisible, and
applying the modified categorical approach, we determined the defendant’s
burglary convictions qualified as ACCA predicate offenses because the
indictments charged that he burgled one dwelling house and two business houses.
Id. at 1168-69.
The district court did not plainly err in counting Brundidge’s Georgia
burglary conviction as an ACCA predicate offense. We have held the statute is
divisible and the offense qualifies as an ACCA predicate offense under the
modified categorical approach. Gundy, 842 F.3d at 1168-69. Brundidge does not
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cite a contrary holding, as required under plain error review. See Rodriguez, 627
F.3d at 1381. Moreover, a court may rely on undisputed facts contained in the
presentence investigation report (PSI) in applying the modified categorical
approach. See United States v. Ramirez-Flores, 743 F.3d 816, 820 & n.3 (11th
Cir. 2014) (stating courts may consider undisputed facts contained in the PSI in
applying the modified categorical approach). Thus, we affirm Brundidge’s total
sentence.
II. CONCLUSION
Brundidge did not establish plain error from the Government’s closing
arguments or in counting his prior conviction for burglary as a predicate offense
under the ACCA. Thus, we affirm his convictions and total sentence.
AFFIRMED.
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