[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13525 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 12, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 08-20002-CR-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT GLOVER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 12, 2009)
Before CARNES, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Robert Glover challenges his conviction and 210-month sentence imposed
for being a felon in possession of a firearm and ammunition, in violation of
18 U.S.C. § 922(g)(1). On appeal, Glover argues that the district court erred when
it admitted testimony from police officers about out-of-court statements, in
violation of his Sixth Amendment right to confront witnesses against him. Next,
he argues that, when viewed cumulatively with the admission of these out-of-court
statements, the prosecutor’s improper arguments during closing deprived Glover
of his right to a fair trial. Finally, Glover argues that his 210-month sentence is
unreasonable because it resulted from the court’s undue focus on his criminal
history and its disregard for his significant mitigating circumstances.
I. The Sixth Amendment
We review constitutional questions de novo. United States v. Brown,
364 F.3d 1266, 1268 (11th Cir. 2004). We also review de novo the question of
whether out-of-court statements are “testimonial” for purposes of the
Confrontation Clause. United States v. Lamons, 532 F.3d 1251, 1261 n.15 (11th
Cir.), cert. denied, 129 S.Ct. 524 (2008). Sixth Amendment Confrontation Clause
violations are subject to the harmless-error standard. United States v. Edwards,
211 F.3d 1355, 1359 (11th Cir. 2000).
The Confrontation Clause of the Sixth Amendment provides a defendant in
a criminal trial the right “to be confronted with the witnesses against him.”
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U.S. Const. amend. VI. In Crawford v. Washington, the Supreme Court held that
when testimonial evidence is used against a defendant at trial, his Sixth
Amendment rights under the Confrontation Clause cannot be denied unless the
declarant is unavailable and the defendant had a prior opportunity to
cross-examine the declarant. 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d
177 (2004).
The Confrontation Clause prohibits only statements that constitute
impermissible hearsay. The Supreme Court explained that “[t]he Clause . . . does
not bar the use of testimonial statements for purposes other than establishing the
truth of the matter asserted.” Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354; see
also Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425
(1985) (“The nonhearsay aspect of [the declarant's] confession-not to prove what
happened at the murder scene but to prove what happened when respondent
confessed-raises no Confrontation Clause concerns.”). In United States v. Baker,
we explained that if a hearsay statement is testimonial-“typically [a] solemn
declaration or affirmation made for the purpose of establishing or proving some
fact”-its admissibility is prohibited by the Confrontation Clause. 432 F.3d 1189,
1203-04 (quoting Crawford, 541 U.S. at 51, 124 S.Ct. 1354). Hearsay, of course,
“is a statement, other than one made by the declarant while testifying at the trial or
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hearing, offered in evidence to prove the truth of the matter asserted,” Fed.R.Evid.
801(c). But, if a trial court admits a statement, made by an available declarant
whom the defendant has not had the opportunity to cross-examine, for a purpose
other than for the truth of the matter asserted, the admissibility of that statement
does not violate the Confrontation Clause.
The statements here were not introduced for the truth of the matter asserted
because they merely explained why the police sought to stop Glover and were not
testimonial because they were not given in solemn declaration or affirmation for
the purpose of establishing a fact. Therefore, we reject this argument.
II. Closing Arguments and Cumulative Error
Where, as here, a defendant does not object to comments made by the
prosecution at trial, the standard of review is plain error. United States v.
Hernandez, 921 F.2d 1569, 1573 (11th Cir. 1991). To justify reversal under this
standard, the error must be “so obvious that failure to correct it would jeopardize
the fairness and integrity of the trial.” United States v. Mock, 523 F.3d 1299,
1302 (11th Cir. 2008).
“The sole purpose of closing argument is to assist the jury in analyzing the
evidence.” United States v. Iglesias, 915 F.2d 1524, 1529 (11th Cir. 1990).
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“While a prosecutor may not exceed the evidence in closing argument, he may
state conclusions drawn from the evidence.” United States v. Bailey, 123 F.3d
1381, 1400 (11th Cir. 1997) (citation omitted). A prosecutor is not prohibited
from making “colorful and perhaps flamboyant” remarks if they relate to the
evidence adduced at trial. Id.; see also United States v. Frazier, 944 F.2d 820,
827-28 (11th Cir. 1991) (“A prosecutor may even describe a defense as ‘absurd’
and ‘a big fake’ as long as the trial record supports the prosecutor’s comments.”).
The prosecution may not “place the prestige of the government behind a
witness by making explicit personal assurances of the witness’s veracity or by
indicating that information not presented to the jury supports the testimony.”
Hernandez, 921 F.2d at 1573. “The prohibition against vouching does not forbid
prosecutors from arguing credibility, which may be central to the case; rather, it
forbids arguing credibility based on the reputation of the government office or on
evidence not before the jury.” Id.
We review for an abuse of discretion a party’s argument that a series of
errors by the district court, when viewed cumulatively, denied the party a fair trial.
Mock, 523 F.3d at 1302. The cumulative error doctrine “provides that an
aggregation of non-reversible errors (i.e., plain errors failing to necessitate
reversal and harmless errors) can yield a denial of the constitutional right to a fair
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trial, which calls for reversal.” United States v. Baker, 432 F.3d 1189, 1223 (11th
Cir. 2005) (quotation omitted). “The harmlessness of cumulative error is
determined by conducting the same inquiry as for individual error–courts look to
see whether the defendant’s substantial rights were affected.” Id. (quotation
omitted).
Here, the statements made by the prosecutor were within the realm of
acceptable comments made in closing argument. The prosecutor’s comments on
the veracity of the police officers was based on an attack on their credibility and
did not invoke the prestige of the government. Additionally, his statements about
Glover’s rationale for fleeing were proper comments on the evidence. There was
no plain error.
III. Reasonableness of the Sentence
We review a defendant’s sentence for reasonableness. United States v.
Booker, 543 U.S. 220, 264, 125 S.Ct. 738, 767, 160 L.Ed.2d 621 (2005); United
States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005). After Booker,
sentencing requires two steps: first, the district court must correctly calculate the
guideline range, and second, the district court must consider the factors listed in
18 U.S.C. § 3553(a) in arriving at a reasonable sentence. United States v. Talley,
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431 F.3d 784, 786 (11th Cir. 2005).
The substantive reasonableness of a sentence is reviewed under an
abuse-of-discretion standard. Gall v. United States, 552 U.S. ___, ___, 128 S.Ct.
586, 597, 169 L.Ed.2d 445 (2007). Our reasonableness review is deferential, and
requires us to “evaluate whether the sentence imposed by the district court fails to
achieve the purposes of sentencing as stated in section 3553(a).” Talley, 431 F.3d
at 788. The party challenging the sentence “bears the burden of establishing that
the sentence was unreasonable in light of [the] record and the factors in section
3553(a).” Id.
In arriving at a reasonable sentence, the district court is required to consider
the factors set out in 18 U.S.C. § 3553(a):
(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.
Id. at 786 (citing 18 U.S.C. § 3553(a)). The district court shall impose a sentence
that is sufficient, but not greater than necessary, to comply with the purposes of
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factors two through five listed above. 18 U.S.C. § 3553(a). It is sufficient for the
district court to acknowledge that it has considered the § 3553(a) factors, but it
need not explicitly discuss each of them. United States v. Scott, 426 F.3d 1324,
1329 (11th Cir. 2005). We have recognized that “there is a range of reasonable
sentences from which the district court may choose.” Talley, 431 F.3d at 788.
Necessarily, there are also “sentences outside the range of reasonableness that do
not achieve the purposes of sentencing stated in § 3553(a) and that thus the district
court may not impose.” United States v. Martin, 455 F.3d 1227, 1237 (11th Cir.
2006).
Because the district court sentenced Glover within the guidelines range and
considered the § 3553(a) factors, Glover has not satisfied his burden of
establishing that his sentence was unreasonable. In addition, the sentence was not
greater than necessary, as the district court took into account the seriousness of the
offense and the need to provide for just punishment, both of which are proper
considerations under § 3553(a)(2).
IV. Conclusion
Because there was no error at trial warranting a reversal and because the
district court properly sentenced Glover, we affirm.
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AFFIRMED.1
1
Glover’s request for oral argument is denied.
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