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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-17257
Non-Argument Calendar
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D.C. Docket No. 2:15-cr-00524-WKW-WC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES VERNON BATTLE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Alabama
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(October 5, 2017)
Before TJOFLAT, WILLIAM PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
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James Battle challenges his 61-month total sentence for aggravated identity
theft and wire fraud. On appeal, Battle argues that the government committed
prosecutorial misconduct at his sentencing hearing by making misleading
statements to the court and relying on a witness’s testimony that it knew to be
false. The government, in its response, argues that Battle’s claims are, in fact,
recast challenges to his guideline calculation and thus are barred by a
sentence-appeal waiver in his plea agreement.
I.
We review the validity of a sentence-appeal waiver de novo. United States
v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). A sentence-appeal waiver will
be enforced if it was made knowingly and voluntarily. United States v. Bushert,
997 F.2d 1343, 1351 (11th Cir. 1993). To establish that the waiver was made
knowingly and voluntarily, the government must show either that: (1) the district
court specifically questioned the defendant about the waiver during the plea
colloquy; or (2) the record makes clear that the defendant otherwise understood the
full significance of the waiver. Id. We have determined that a defendant may not
recast a waived challenge to his sentence as an ineffective-assistance-of-counsel
claim so as to fit within an express exception to the waiver for such claims. See
Williams v. United States, 396 F.3d 1340, 1342 (11th Cir. 2005).
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Battle’s plea waiver expressly stated that it “does not include the right to
appeal on the ground of ineffective assistance of counsel or prosecutorial
misconduct.” (Doc. 46 at 8). In this appeal, Battle’s claim that the government
committed prosecutorial misconduct at his sentencing hearing falls directly within
this exception to the sentence-appeal waiver. Battle’s arguments that the
government committed prosecutorial misconduct at the sentencing hearing are not
barred by the appeal waiver in the plea agreement.
II.
We ordinarily review claims of prosecutorial misconduct de novo. United
States v. Merrill, 513 F.3d 1293, 1306 (11th Cir. 2008). However, where a
defendant did not object to the prosecutor’s conduct in the district court, we review
these claims for plain error. See id. at 1306-07. Under plain error review, the
appealing party bears the burden of establishing that: (1) the district court erred; (2)
the error was plain or obvious; (3) the error affected her substantial rights; and (4)
the error damaged the fairness, integrity, or reputation of the court proceedings.
United States v. Schmitz, 634 F.3d 1247, 1268 (11th Cir. 2011). To show that an
error was plain, the error must be contrary to an explicit statutory provision or
on-point precedent from this Court or the Supreme Court. United States v.
Hoffman, 710 F.3d 1228, 1232 (11th Cir. 2013).
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To establish prosecutorial misconduct, a defendant must show that the
prosecutor made improper remarks that prejudiced his substantial rights. Merrill,
513 F.3d at 1307. A prosecutor’s remarks prejudice a defendant’s substantial
rights when there is a reasonable probability that, but for the remarks, the outcome
of the case would have been different. See id.
We have determined that a prosecutor’s statements in opening, closing, and
rebuttal arguments at trial did not amount to prosecutorial misconduct where, even
considered cumulatively, the prosecutor’s comments did not deny the defendant a
fair trial. See United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006).
Under Model Rule of Professional Conduct 3.1, attorneys may not make assertions
in a proceeding that do not have a non-frivolous basis in law and fact. Model
Rules of Prof’l Conduct 3.1 (Am. Bar Ass’n 2014).
Battle has failed to meet his burden of proof under plain error review. First,
Battle must demonstrate that the district court’s alleged error was plain or obvious,
which requires that the error be contrary to on point precedent from this Court or
the Supreme Court. However, Battle fails to point to a single circuit or Supreme
Court precedent that recognizes prosecutorial misconduct at the sentencing phase,
rather than at trial.
Second, Battle must show that the government’s misconduct affected his
substantial rights. Battle contends that his rights were affected with regards to both
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the denial of a two-point sentence reduction for acceptance of responsibility and
the imposition of a two-point sentence enhancement for obstruction of justice. For
acceptance of responsibility, Battle argues that the government’s statement that
Battle tried to “sabotage some of the case” when he attempted to withdraw his
guilty plea constitutes misconduct and affected his substantial rights. The district
court gave four reasons for overruling Battle’s objection to the lack of a reduction
for accepting responsibility: (1) he violated his bond condition; (2) he failed to
terminate his criminal conduct by possessing a firearm while under indictment; (3)
he tampered with, and retaliated against, a witness; and (4) he moved to withdraw
his guilty plea. (Doc. 100 at 5-6). Further, the court noted that an enhancement for
obstruction of justice ordinarily indicates the defendant has not accepted
responsibility. Battle fails to demonstrate the government’s misconduct caused the
court’s denial of a sentence reduction for acceptance of responsibility.
For obstruction of justice, Battle argues that the government’s reliance on
Ms. Webster’s testimony was misconduct that affected his substantial rights.
However, Ms. Webster’s testimony was supported by security footage.
Additionally, Battle has presented no evidence that the government knew Ms.
Webster’s testimony was false..
Battle has not met his burden under plain error review in demonstrating
prosecutorial misconduct. He has not pointed to any on-point precedent that such
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statements during sentencing constitute prosecutorial misconduct, the
prosecution’s statements were based on facts on the record, and the statements did
not affect Battle’s substantial rights.
AFFIRMED.
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