[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 30, 2004
No. 03-14201
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-20129-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NEVIA KEVIN ABRAHAM,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 30, 2004)
Before CARNES, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Nevia Kevin Abraham appeals his life sentences for (1) conspiracy to kidnap
a U.S. postal service employee, in violation of 18 U.S.C. § 1201(c); (2) kidnapping
of a U.S. postal service employee, in violation of § 1201(a)(5); (3) use of a firearm
during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)
(two counts); (4) forcible assault of a U.S. postal service employee, in violation of
18 U.S.C. § 111(a),(b); and (5) possession of a firearm by a convicted felon, in
violation of § 924(e)(1).
On January 31, 2003, Abraham kidnaped a U.S. postal worker, seeking to use
her as a means to secure entry into his girlfriend’s home. On appeal, Abraham
makes seven arguments. First, he argues that the district court abused its discretion
by denying Abraham’s request for additional peremptory strikes during jury
selection or, alternatively, by refusing to excuse for cause a juror who was a Postal
Service employee. We review a district court’s decision to strike a prospective
juror for cause for abuse of discretion. United States v. Rhodes, 177 F.3d 963, 965
(11th Cir. 1999). Abraham argues that it was inappropriate for the district court to
seat a postal worker on the jury given the identity of the victim in this case.
Abraham has failed to show, however, that the district court had any specific reason
to conclude that the postal worker in question was incapable of impartially judging
the defendant.
Second, Abraham argues that the district court abused its discretion by
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admitting evidence of Abraham’s prior bad acts under Fed. R. Evid. 404(b). We
review the district court’s rulings on the admissibility of evidence for abuse of
discretion. United States v. Thomas, 242 F.3d 1028, 1031 (11th Cir. 2001). The
district court admitted evidence that, on two occasions prior to the January 31
kidnaping, Abraham had used force and the threat of force against his girlfriend and
her relatives. The evidence as to the first of these occasions indicated that, on
January 17, 2003, Abraham pushed and choked his girlfriend in her home. As to
the second, which took place on January 21, 2003, the evidence indicated that
Abraham used a gun to threaten his girlfriend’s mother and sister into helping him
secure entry into his girlfriend’s house. Abraham argues that the effect of this
evidence was more prejudicial than probative. The government argues that the
evidence of Abraham’s prior bad acts was admissible, not to prove Abraham’s
character, but his motive, intent, or lack of mistake. We find that the district court’s
decision to admit the evidence was not an abuse of discretion.
Abraham’s third argument is that the district court erred by not granting
Abraham’s motion for a mistrial following testimony attributing racist statements to
Abraham. We review the district court’s denial of a motion for a mistrial for abuse
of discretion. United States v. Ettinger, 344 F.3d 1149, 1161 (11th Cir. 2003).
Here, too, we do not find that the trial court has committed an abuse of discretion in
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denying Abraham a mistrial, or that Abraham has made a showing of substantial
prejudice sufficient to warrant a new trial. See id.
Fourth, Abraham argues that the prosecutor committed misconduct by
misrepresenting the defendant’s excuse and making inflammatory and prejudicial
comments about the defendant to the jury. We will reverse a defendant’s conviction
for prosecutorial misconduct only if, “in the context of the entire trial in light of any
curative instruction, the misconduct may have prejudiced the substantial rights of
the accused.” United States v. Bailey, 123 F.3d 1381, 1400 (11th Cir. 1997).
Where a defendant did not raise an issue below, our review is “limited to reviewing
[the] claim[] of error for the first time on appeal under the plain error standard to
avoid manifest injustice.” United States v. Harness, 180 F.3d 1232, 1234 (11th Cir.
1999).1 Because Abraham did not raise his argument of prosecutorial misconduct
below, we review this claim under the plain error standard. Abraham argues that
during a post-arrest interrogation on January 31, he told an FBI agent and Miami-
Dade police detectives that his girlfriend had threatened to kill their children and
that he had acted out of concern for his children’s safety. He further argues that the
prosecution disingenuously suggested at trial that Abraham fabricated his defense
1
Plain error requires (1) an error, (2) that is plain, (3) that affects the substantial rights of
the defendant, and (4) that, if left uncorrected, would “seriously affect the fairness, integrity, or
public reputation of a judicial proceeding.” United States v. Humphrey, 164 F.3d 585, 588 & n.3
(11th Cir. 1999).
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theory sometime after his arrest. The government responds that Abraham’s initial
explanation was simply that he wanted to remove his children from his girlfriend,
and that he added only later that he was concerned by an alleged threat to their
safety. Moreover, the government points to testimony indicating that Abraham
repeatedly forfeited opportunities to advise others that his girfriend had threatened
their children. In light of this testimony discrediting Abraham’s defense, we find
that Abraham has not made the requisite showing of a plain error that substantially
affects his rights and that, if left uncorrected, would “seriously affect the fairness,
integrity, or public reputation of a judicial proceeding.” Humphrey, 164 F.3d at 588
& n.3. Abraham also points to a prosecutorial statement about Abraham’s use of a
piece of paper to monitor the opening and closing of his girlfriend’s apartment door,
and to prosecutorial statements about his extramarital relationships and children.
The government concedes that the first of these statements was not supported by
record evidence but argues that the controlling and jealous behavior that it suggests
is more than adequately justified by the record. The government also argues that it
was defense counsel, not the prosecution, that first made an issue of Abraham’s
extramarital relationships, and that any prejudice that may have resulted was
redressed by a curative instruction from the district court.2 Considered as a whole,
2
The government cites U.S. v. Wilson, 149 F.3d 1298, 1302 (11th Cir. 1998) (finding
that while prosecutor’s comments were improper, defendant could not show prejudice in light of
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we find that the statements in question were not sufficiently prejudicial to warrant a
mistrial.
Fifth, Abraham argues that the district court erred by admitting into evidence
the recording of a 911 call under the excited utterance exception to the hearsay rule.
Because Abraham did not raise it below, we review this evidentiary claim under the
plain error standard. The 911 call was made by the half-brother of Abraham’s
girlfriend, Melvin Dore, on January 21, 2003, when Abraham used a gun to threaten
his girlfriend’s mother and sister into helping him secure entry into his girfriend’s
house. Dore had called to report that Abraham was abducting his mother and sister
at gunpoint. Abraham argues that this recording was hearsay and that its admission
into evidence violated Abraham’s Sixth Amendment right to confront witnesses,
given that Dore was available to testify. We find that the district court neither
abused its discretion nor committed plain error in admitting the recording under the
excited utterance exception to the hearsay rule.
Sixth, Abraham argues that his sentence was imposed in violation of the Ex
Post Facto Clause. We review de novo a defendant’s claim that his sentence was
imposed in violation of the Ex Post Facto Clause. United States v. Futrell, 209 F.3d
1286, 1289 (11th Cir. 2000). Because Abraham did not raise this claim below, we
court’s curative instruction and overwhelming evidence of guilt.)
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review it as well under the plain error standard. Abraham summarily argues that his
sentence was imposed in violation of the Ex Post Facto Clause because the district
court relied upon his prior escape conviction as a crime of violence in order to
enhance his sentence under § 3559(c). Abraham contends that when he committed
the crime of escape, “it was innocent and not a violent offense,” and, by
categorizing the offense as violent, the district court made the punishment for the
crime of escape more burdensome than at the time of its commission.
“The ex post facto clause prohibits the enactment of statutes which . . . make
more burdensome the punishment for a crime, after its commission . . . .” United
States v. De La Mata, 266 F.3d 1275, 1286 (11th Cir. 2001). We have explained
that the following two elements must be present in order for a court to find an ex
post facto violation: (1) the law must be retrospective, meaning it applies to events
occurring before its enactment; and (2) the offender must be disadvantaged by it.
United States v. Rosario-Delgado, 198 F.3d 1354, 1356 (11th Cir. 1999) (citation
omitted).
The federal “three strikes” law, which became effective on September 13,
1994, mandates a sentence of life imprisonment for a defendant who has been
convicted of a “serious violent felony,” if he previously was convicted of “one or
more serious violent felonies and one or more serious drug offenses.” 18 U.S.C.
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§ 3559(c)(1)(A)(ii); Rosario-Delgado, 198 F.3d at 1355 (relying upon the reasoning
in Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683 (1948)).
Abraham does not dispute that he was previously convicted of a serious drug
offense. Thus, the only question is whether Abraham’s prior escape conviction
qualifies as a “serious violent felony.” It is not clear that Abraham has properly
raised this issue on appeal, given that he does not actually cite to § 3559(c) nor to
any precedents regarding the classification of escape as a serious violent felony. In
his brief, Abraham states simply that “there is nothing inherently violent about the
crime of escape,” and that his escape involved merely walking away from a work
detail, without the use of violence or the threat of violence. He further points out
that the district court, in accepting the recommendation of the Presentence
Investigation Report that Abraham’s escape conviction qualifies as a serious violent
felony, relied on a case, United States v. Gay, 251 F.3d 950, 952 (11th Cir. 2001),
that interpreted the U.S. Sentencing Guidelines, not § 3359. These assertions, while
conclusory, suffice to raise the issue of whether Abraham’s prior escape conviction
qualifies as a serious violent felony. Accordingly, before addressing whether the
use of a predicate felony to enhance a defendant’s sentence violates the Ex Post
Facto Clause, we consider the merits of Abraham’s § 3559 argument.
The definition of a “serious violent felony” under § 3559 encompasses
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any . . . offense punishable by a maximum term of imprisonment of 10
years or more that has as an element the use, attempted use, or threatened use of physical fo
involves a substantial risk that physical force against the person of another may be
used in the course of committing the offense.
18 U.S.C. § 3559(c)(2)(F)(ii). Abraham concedes that escape is a second-degree
felony punishable by fifteen years of imprisonment under Florida law. This Court
has not specifically determined whether escape meets the remaining criteria set
forth in this definition. In Gay, however, we held that a prior escape conviction
constitutes a “crime of violence” under the career offender provisions of the
Sentencing Guidelines even where the defendant’s escape involves merely walking
away from a non-secure facility. Section 4B1.2(a)(ii) of the Sentencing Guidelines
define a “crime of violence” to include any offense that “involves conduct that
presents a serious potential risk of physical injury to another.” In Gay, we noted
that “a district court only may inquire into the conduct surrounding a conviction if
ambiguities in the judgment make the crime of violence determination impossible
from the face of the judgment itself.” Gay, 251 F.3d at 955 (internal citation and
quotation marks omitted). Because the offense of escape does not involve such
ambiguities “and does present the potential risk of violence, even when it involves a
‘walk-away’ from unsecured correctional facilities,” we concluded that the escape
conviction in Gay constituted a “crime of violence” under the career offender
guideline. Id.
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There is no meaningful distinction between the language of the career
offender guideline – which refers to conduct that “presents a serious potential risk
of physical injury to another” – and the language of § 3559 – which refers to
conduct that “involves a substantial risk that physical force against the person of
another may be used.” Under the reasoning of Gay and the language of § 3559,
accordingly, we find that Abraham’s prior escape conviction qualifies as a “serious
violent felony.”
We have held that the use of predicate felonies to enhance a defendant’s
sentence does not violate the Ex Post Facto Clause because such enhancements do
not represent additional penalties for earlier crimes, but rather stiffen the penalty for
the latest crime committed by the defendant. United States v. Reynolds, 215 F.3d
1210, 1213 (11th Cir. 2000) (involving application of the Armed Career Criminal
Act, 18 U.S.C. § 924(e), and corresponding sentencing guideline, U.S.S.G.
§ 4B1.4).
Because predicate felonies may be used to enhance a defendant’s sentence
without violating the Ex Post Facto Clause, and because Abraham has been
convicted of “one or more serious violent felonies and one or more serious drug
offenses,” the district court did not plainly err by sentencing Abraham to a
mandatory term of life imprisonment under § 3559.
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Abraham’s last argument is that the district erred by denying Abraham a
reduction for acceptance of responsibility and by enhancing his sentence because
the victim was a government employee. With respect to these sentencing claims,
we review the district court’s findings of fact for clear error and its application of
the Sentencing Guidelines de novo. United States v. Rendon, 354 F.3d 1320, 1329
(11th Cir. 2003).
Abraham argues summarily that his sentence should be vacated and
remanded for imposition of a new sentence reflecting a reduction for acceptance of
responsibility and without a victim-related adjustment. Abraham includes a factual
recitation of the objections that he presented to the district court, without
specifically rearguing the merits of his claims or providing any relevant caselaw.
Because Abraham is subject to a statutory mandatory life sentence under § 3559, his
arguments pertaining to the Sentencing Guidelines will not affect the imposition of
his sentence. As such, we need not address these issues.
Upon review of the record, and upon consideration of the briefs of the
parties, we find no reversible error. Accordingly, we affirm Abraham’s sentence.
AFFIRMED.
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