[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 3, 2008
No. 07-15787 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00201-CR-T-27TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONNIE DELAUGHTER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 3, 2008)
Before DUBINA, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Ronnie Delaughter appeals his conviction for distribution of cocaine base,
in violation of 21 U.S.C. § 841(a)(1),(b)(1)(C), and his guideline-range sentence
of 37 months’ incarceration. On appeal, Delaughter argues that the district court
abused its discretion when it denied his motions for mistrial based on statements
made by a government witness and that the district court imposed an unreasonable
sentence in light of his drug addiction and its impact on his criminal history.
I.
We review denial of a motion for mistrial for abuse of discretion. United
States v. Ramirez, 426 F.3d 1344, 1353 (11th Cir. 2005) (per curiam). “A
defendant is entitled to a fair trial but not a perfect one.” Id. (internal quotation
mark omitted). We have stated that: “Evidentiary . . . errors do not constitute
grounds for reversal unless there is a reasonable likelihood that they affected the
defendant’s substantial rights.” United States v. Hawkins, 905 F.2d 1489,
1493 (11th Cir. 1990). Although individually errors may not warrant reversal,
their cumulative effect can so prejudice a defendant to require a new trial.
Ramirez, 426 F.3d at 1353. However, a defendant’s substantial rights are not
affected by error if properly admitted evidence sufficiently establishes guilt. Id. at
1353-54.
Rule 403 provides in relevant part: “[a]lthough relevant, evidence may be
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excluded if its probative value is substantially outweighed by the danger of unfair
prejudice . . . .” Fed. R. Evid. 403. Rule 404(b) states that:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident[.]
Fed.R.Evid. 404(b). However, prejudice from improperly admitted evidence may
be mitigated by a limiting instruction to the jury. United States v. Edouard,
485 F.3d 1324, 1346 (11th Cir. 2007).
In United States v. Beasley, 2 F.3d 1551 (11th Cir. 1993), we concluded that
a defendant was not prejudiced by a witness’s cross-examination response that he
had the defendant in prison where the district court gave a curative instruction and
the response added nothing to the government’s case. Id. at 1559.
To obtain a conviction for distribution in violation of 21 U.S.C. § 841, the
government must prove beyond a reasonable doubt that the defendant knowingly
or intentionally distributed a controlled substance. 21 U.S.C. § 841(a)(1). Section
841 identifies substances containing a detectable amount of cocaine as a
controlled substance. Id. § 841(b)(1)(A).
In this case, Delaughter challenges his conviction due to the testimony of a
government witness who stated that he knew Delaughter from school and
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numerous citizen contacts while a patrol officer and that he had possibly arrested
Delaughter once prior to this case. However, testimony by another witness, to
which Dalaughter did not object, established Delaughter’s guilt by identifying him
as the seller of the drugs. In addition, the district court’s curative instruction
sufficiently remedied any prejudice Delaughter might have incurred. Because
Delaughter’s substantial rights were not affected by the challenged testimony, we
discern no error.
II.
We review the final sentence imposed by the district court for
reasonableness. United States v. Agbai, 497 F.3d 1226, 1229 (11th Cir. 2007) (per
curiam). Recently, the Supreme Court clarified that the reasonableness standard
means review of sentences for abuse of discretion. Gall v. United States, 552 U.S.
__, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007).
The district court must impose a sentence that is both procedurally and
substantively reasonable. Gall, 552 U.S. at __, 128 S. Ct. at 597. The Supreme
Court has explained that a sentence would be procedurally unreasonable if the
district court improperly calculated the guideline imprisonment range, treated the
Guidelines as mandatory, failed to consider the appropriate statutory factors, based
the sentence on clearly erroneous facts, or failed to adequately explain its
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reasoning. Id. If the district court made no procedural errors, then we review the
substantive reasonableness of the sentence imposed to determine whether the
sentence is supported by the 18 U.S.C. § 3553(a) factors. Id. at __, 128 S.
Ct. at 600. The § 3553(a) factors include:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need
to protect the public; (5) the need to provide the defendant with
needed educational or vocational training or medical care; (6) the
kinds of sentences available; (7) the Sentencing Guidelines range; (8)
pertinent policy statements of the Sentencing Commission; (9) the
need to avoid unwanted sentencing disparities; and (10) the need to
provide restitution to victims.
United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (per curiam).
There is a “range of reasonable sentences from which the district court may
choose.” Id. at 788. “[T]he party who challenges the sentence bears the burden of
establishing that the sentence is unreasonable in light of both [the] record and the
factors in section 3553(a).” Id. The weight given to particular sentencing factors
is committed to the sound discretion of the district court. United States v. Clay,
483 F.3d 739, 743 (11th Cir. 2007).
We have held that a district court is not required to state that it has explicitly
considered each § 3553(a) factor. United States v. Scott, 426 F.3d 1324, 1329
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(11th Cir. 2005). In addition, “when the district court imposes a sentence within
the advisory Guidelines range, we ordinarily will expect that choice to be a
reasonable one.” Talley, 431 F.3d at 788.
In this case, the district court properly calculated the Guidelines based on
the undisputed PSI, considered the Guidelines as advisory, and considered the
factors of 18 U.S.C. § 3553(a). Given the facts and circumstances of the case, the
district court determined that a median, guideline range sentence was appropriate.
On appeal, we cannot say the district court improperly weighed the required
statutory factors, nor can we find any other circumstances which suggest that
Delaughter’s 37-month sentence is unreasonable. Accordingly, we affirm.
AFFIRMED.
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