UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4754
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MAURICE SPRIGGS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:09-cr-00361-WDQ-1)
Submitted: October 28, 2011 Decided: November 4, 2011
Before KING, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Meghan S. Skelton, Staff
Attorney, Greenbelt, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Cheryl L. Crumpton, Tonya
Kelly Kowitz, Assistant United States Attorneys, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Maurice Spriggs was convicted
of armed carjacking (Count One), in violation of 18 U.S.C.
§ 2119 (2006); brandishing a firearm during and in relation to
the carjacking (Count Two), in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii) (2006); and possessing a firearm as a
convicted felon (Count Three), in violation of 18 U.S.C.
§ 922(g)(1) (2006). The district court sentenced Spriggs as a
career offender and an armed career criminal, imposing
consecutive sentences of 180 months each on Counts One and Three
and 84 months on Count Two, for a total term of imprisonment of
444 months. In this appeal, Spriggs argues that the Government
engaged in misconduct during closing argument and that his
sentence is procedurally and substantively unreasonable. We
affirm.
A claim of prosecutorial misconduct “presents a mixed
question of law and fact, and we review the district court’s
factual findings for clear error and its legal determinations de
novo.” United States v. Washington, 398 F.3d 306, 310 (4th Cir.
2005). To succeed on a claim of prosecutorial misconduct, a
defendant must show, first, that the prosecutor’s remarks were
improper and, second, that “the improper remarks so prejudiced
the defendant’s substantial rights that the defendant was denied
a fair trial.” United States v. Lighty, 616 F.3d 321, 359 (4th
2
Cir. 2010), cert. denied, __ U.S. __, 79 U.S.L.W. 3480, 80
U.S.L.W. 3015 (U.S. Oct. 17, 2011) (No. 10-1010).
Spriggs contends that the Government’s statement
during rebuttal that the jury had heard “zero evidence”
supporting the defense’s theory of the case was improper and
shifted the burden of proof to the defense. “In considering
whether a prosecutor’s words constitute a comment on the
defendant’s failure to testify,” we consider whether the
language used either was “manifestly intended to be[] or was
. . . of such character that the jury would naturally and
necessarily take it to be a comment on the failure of the
accused to testify.” United States v. Jones, 471 F.3d 535, 542
(4th Cir. 2006) (internal quotation marks omitted). The
comments are evaluated “in the context in which [they were]
made.” Id. (internal quotation marks omitted).
In closing argument, the defense asserted that Spriggs
was legitimately in possession of the victim’s car, hypothesized
that the victim was dealing drugs on the night in question, and
suggested that the victim’s 911 call was motivated by something
other than a carjacking. We conclude that the Government’s
statements were not improper. See United States v. Loayza, 107
F.3d 257, 263 (4th Cir. 1997) (“It would have been entirely
appropriate for the prosecutor to argue during summation that
the defense version of the events at issue ‘were not even close’
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to the evidence presented.”). The context in which the argument
was made reveals that the Government’s statements were not
intended and would not be naturally taken as a comment on
Spriggs’ failure to testify, but as a response to the defense
characterization of the victim’s testimony.
Alternatively, Spriggs argues that the Government’s
statements constituted misconduct because they were factually
inaccurate, and that the cross-examination of the victim
supplied evidence supporting the defense theory of the case.
Although the defense effectively tested the victim’s
credibility, the Government did not misstate the facts, and, as
the district court instructed, counsel’s questions containing
factual assumptions are not evidence of those facts. Thus,
Spriggs’ prosecutorial misconduct claim fails.
We now turn to our review of Spriggs’ sentence. We
review sentences for reasonableness, applying an abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007); United States v. Llamas, 599 F.3d 381, 387
(4th Cir. 2010). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Gall,
552 U.S. at 51. In determining procedural reasonableness, this
court considers whether the district court properly calculated
the defendant’s advisory Guidelines range, considered the 18
U.S.C. § 3553(a) (2006) factors, analyzed any arguments
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presented by the parties, and sufficiently explained the
selected sentence. Gall, 552 U.S. at 51. A sentence is
reviewed for substantive reasonableness by examining “the
totality of the circumstances, including the extent of any
variance from the Guidelines range.” Id.; United States v.
Pauley, 511 F.3d 468, 473 (4th Cir. 2007). This court presumes
that a sentence within a properly determined advisory Guidelines
range is substantively reasonable. United States v. Allen, 491
F.3d 178, 193 (4th Cir. 2007).
Spriggs asserts that the district court committed
procedural errors in sentencing him. First, he argues that the
district court never identified the base offense level or the
Guidelines range. However, the presentence report indicated
that Spriggs’ Guidelines range was a term of imprisonment from
360 months to life based on his classification as a career
offender and an armed career criminal. After sustaining one
objection but overruling Spriggs’ remaining objections to
certain predicate offenses used to enhance his sentence, the
district court determined that Spriggs had at least four felony
drug-trafficking convictions to support sentencing him as a
career offender and an armed career criminal. We therefore
conclude that Spriggs was adequately apprised of the effect of
the Guidelines and the statutory enhancement on his sentence.
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Next, Spriggs argues that the district court never
explained why the selected sentence was sufficient but not
greater than necessary to reflect the purposes of sentencing,
and that the court did not consider all of the § 3553(a)
factors. ∗ At sentencing, Spriggs requested a sentence of 20.5
years, reflecting a Guidelines sentence in the absence of career
offender or armed career criminal enhancements. Referencing the
§ 3553(a) sentencing factors, Spriggs argued that he was
compliant when he was arrested and that the mandatory minimum
and 360-month-to-life Guidelines range were excessive. Our
review of the record leads us to conclude that the district
court adequately discharged its responsibility to explain the
sentence imposed with sufficient detail to allow for meaningful
appellate review. See United States v. Carter, 564 F.3d 325,
329-30 (4th Cir. 2009). Thus, the district court did not commit
any procedural error in sentencing Spriggs.
Lastly, Spriggs contends that his sentence is
substantively unreasonable. The district court responded to
Spriggs’ sentencing arguments and, after considering the
sentencing factors delineated in § 3553(a), imposed a within-
∗
Spriggs also argues that the district court failed to
explain why it varied above the Guidelines range. As discussed
above, however, Spriggs’ Guidelines range was 360 months to
life, and his 444-month sentence is within that range.
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Guidelines sentence of 444 months’ imprisonment. We therefore
conclude that Spriggs has failed to rebut the presumption we
apply to his within-Guidelines sentence. See United States v.
Allen, 491 F.3d 178, 183 (4th Cir. 2007).
We affirm the judgment of the district court. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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