[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 28, 2007
No. 05-16493 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-20487-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE GARCIA-FRIAS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 28, 2007)
Before DUBINA, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Jose Garcia-Frias appeals his conviction and sentence for 62 months of
imprisonment for conspiracy to possess with intent to distribute heroin, 21 U.S.C.
§ 846, and attempt to possess with intent to distribute heroin, 21 U.S.C. § 846.
Garcia-Frias presents three arguments in this appeal, each for the first time. First,
Garcia-Frias argues that he is entitled to a new trial because of statements the
prosecutor made during closing argument. Second, he argues that the district court
erred when it sentenced him for both conspiracy and attempt because the
convictions arose out of a single course of conduct. Third, he argues that the jury
instructions violated Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348
(2000). We affirm.
Garcia-Frias first argues that the prosecutor’s suggestion during closing
rebuttal that the jury was being “duped” constituted a personal attack on his
counsel and entitles him to a new trial. The government argues that the
prosecutor’s comments were not a personal attack but a response to the repeated
arguments of defense counsel that the government “duped” Garcia-Frias in
executing the drug bust. Because GarciaFrias did not object to the statements of
the prosecutor, we review for plain error. See United States v. Arias-Izquierdo,
449 F.3d 1168, 1185 n.8 (11th Cir. 2006). We will reverse only if there is (1) error
that is (2) plain, (3) affects substantial rights, and (4) seriously affects the fairness,
integrity, or public reputation of judicial proceedings. United States v. Martinez,
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407 F.3d 1170, 1173 (11th Cir. 2005).
Garcia-Frias cannot establish plain error. “A reversal is warranted when
prosecutorial misconduct was so pronounced and persistent that it permeated the
entire atmosphere of the trial.” United States v. Mueller, 74 F.3d 1152, 1157 (11th
Cir. 1996). It is not clear that the comments of the prosecutor were a personal
attack on defense counsel, and the comments did not affect the substantial rights of
Garcia-Frias. The district court twice instructed the jury that the arguments of
counsel were not evidence and the verdict of the jury had to be based on the
evidence. United States v. Bailey, 123 F.3d 1381, 1402 (11th Cir. 1997). We
cannot say, however, that the comments reached the level of plain error.
Garcia-Frias next argues that, although he can be convicted of both
conspiracy and attempt, 21 U.S.C. § 846, he cannot be sentenced on both counts
because they arose out of a single course of conduct. Garcia-Frias’s argument is
foreclosed by our precedent in United States v. Cochran, 883 F.2d 1012, 1017–18
(11th Cir. 1989), in which we upheld the imposition of separate sentences for
conspiracy and attempt, even though they both arose from the same narcotics
transaction, because each offense requires proof of different facts. Garcia-Frias’s
argument, which we review for plain error because it was raised for the first time
on appeal, fails.
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Finally, Garcia-Frias contends that the instruction to the jury that the
government need not prove that Garcia-Frias had knowledge of the quantity and
type of drugs involved “as long as he knew he was dealing with a controlled
substance,” violates the Sixth Amendment, under Apprendi v. New Jersey, 530
U.S. 466, 120 S. Ct. 2348 (2000). This argument fails. Garcia-Frias acknowledges
that the jury instruction was consistent with the law of this Circuit. See United
States v. Gomez, 905 F.2d 1513, 1514–15 (11th Cir. 1990); United States v. Mejia,
97 F.3d 1391, 1392–93 (11th Cir. 1996). Garcia-Frias raises the issue “purely for
purposes of preservation,” but we are bound by our precedents.
Garcia-Frias’s conviction and sentence are
AFFIRMED.
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