US v. Jorge Espinosa


UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to file supplemental brief(s) [999993719-2] Originating case number: 4:15-cr-00068-F-5 Copies to all parties and the district court/agency. [1000021208].. [16-4295]

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Appeal: 16-4295 Doc: 43 Filed: 02/10/2017 Pg: 1 of 8 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4295 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JORGE ESPINOSA, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. James C. Fox, Senior District Judge. (4:15-cr-00068-F-5) Submitted: January 31, 2017 Decided: February 10, 2017 Before WILKINSON, AGEE, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North Carolina, for Appellant. John Stuart Bruce, United States Attorney, Jennifer P. May-Parker, First Assistant United States Attorney, Barbara D. Kocher, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-4295 Doc: 43 Filed: 02/10/2017 Pg: 2 of 8 PER CURIAM: Jorge Espinosa appeals from his conviction after a jury trial for conspiracy to possess with the intent to distribute 5 kilograms or more of cocaine, in violation of 21 U.S.C. § 846 (2012), and his resulting 188-month sentence. that the district mistrial and necessary. court imposing erred a in denying sentence Espinosa argues his was that motion for greater a than Finding no error, we affirm. First, Espinosa assigns error to the district court’s denial of his motion for a mistrial, which was predicated on the prosecutor’s questioning of a law enforcement witness regarding Espinosa’s post-arrest, post-Miranda * silence. We review the denial of a motion for a mistrial for an abuse of discretion. See United States v. Johnson, 587 F.3d 625, 631 (4th Cir. 2009); United States v. Wallace, 515 F.3d 327, 330 (4th Cir. 2008) (“We review . . . a district court’s denial of mistrial . . . for an abuse of discretion.”). abuses its discretion irrationally[,] . . when . has “it has failed acted to a motion for a A district court arbitrarily consider or judicially recognized factors constraining its exercise of discretion, or when it * has relied on erroneous factual or Miranda v. Arizona, 384 U.S. 436 (1966). 2 legal premises.” Appeal: 16-4295 Doc: 43 Filed: 02/10/2017 Pg: 3 of 8 L.J. v. Wilbon, 633 F.3d 297, 304 (4th Cir. 2011) (alterations in original) (internal quotation marks omitted). Prosecutorial comment on a defendant’s invocation of rights pursuant to Miranda is forbidden. See Doyle v. Ohio, 426 U.S. 610, 618 (1976) (opining that “it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used offered at trial”). to impeach Miranda an explanation assures a subsequently defendant that his silence or invocation of the right to counsel will not be used against him at trial; thus, the Supreme Court has explained, to allow the prosecution to comment at trial on the defendant’s decision to exercise that right violates the “implicit assurance [afforded by Miranda] ‘that silence will carry no penalty.’” Greer v. Miller, 483 U.S. 756, 762 (1987) (quoting Doyle, 426 U.S. at 618). In Greer, the Supreme Court articulated that the holding of Doyle, rather than prohibiting all reference to or mention of the defendant’s silence, was “that the Due Process Clause bars the use for impeachment purposes of a defendant’s postarrest silence.” omitted). Greer, 483 U.S. at 763 (internal citation Thus, “[w]hile a single comment alone may sometimes constitute a Doyle violation, the Supreme Court’s opinion in Greer makes clear that a single mention does not automatically suffice to violate a defendant’s rights when the government does not specifically and expressly attempt to use—as was attempted 3 Appeal: 16-4295 in Doc: 43 Doyle Filed: 02/10/2017 and defendant.” in Greer—the Pg: 4 of 8 improper comment to impeach the United States v. Stubbs, 944 F.2d 828, 835 (11th Cir. 1991). Such comments violate due process only if they “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” 637, 643 (1974). Donnelly v. DeChristoforo, 416 U.S. To obtain a new trial on this basis, Espinosa must show both “(1) that the government’s remarks were in fact improper and (2) that the remarks prejudicially affected the defendant’s substantial rights so as to deprive the defendant of a fair trial.” United States v. Higgs, 353 F.3d 281, 330 (4th Cir. 2003) (citation and internal quotation marks omitted). In determining whether Espinosa has made the requisite showing of prejudice with respect to any particular comment, we must look to a number of factors, including: (1) the degree to which the prosecutor’s remarks have a tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the remarks, the strength of competent proof introduced (4) whether jury to relevant the divert to to establish the comments were attention to this inquiry guilt of deliberately extraneous is “the the accused; placed before matters. issuance Id. of and the Also curative instructions from the court,” Humphries v. Ozmint, 397 F.3d 206, 4 Appeal: 16-4295 Doc: 43 Filed: 02/10/2017 Pg: 5 of 8 218 (4th Cir. 2005) (en banc), which the jury is presumed to follow, Richardson v. Marsh, 481 U.S. 200, 206 (1987). An attempted Doyle violation amounts to a claim of prosecutorial misconduct, which violates due process if it so egregious that it effectively denies the defendant a fair trial. Greer, 483 U.S. at 765. reviewing the Id. at 766 (internal quotation marks omitted). officer challenged claim, context.” testifying the a court the evaluate such reviewing Here, must When was asked remark what Espinosa made after he was read his Miranda rights. “in response The officer testified that Espinosa responded that he did not wish to speak with him. However, as the officer left the room he made a comment regarding Espinosa’s father. To this comment, which was not presented as a question, the defendant made an incriminating statement, which was properly admitted: “if you let me speak to my dad, Sergeant I’ll tell Weeks’ you where testimony the made other kilos reference to are.” the While Defendant’s post-arrest silence, the Government was not using or attempting to use the fact of the Defendant’s silence against him. Instead, the comment was “in the context of the officer[]’[s] narrative[] Noland v. regarding French, 134 [the F.3d defendant’s] 208, 216 (4th . . . arrest.” Cir. 1998). In addition, defense counsel recognized that there was no Doyle violation, and raised Espinosa’s 5 invocation of his right to Appeal: 16-4295 Doc: 43 Filed: 02/10/2017 Pg: 6 of 8 silence when cross-examining Weeks. We conclude that the court did not abuse its considerable discretion in denying the motion for a mistrial. See Noland, 134 F.3d at 216 (holding prosecutor’s argument that related to voluntary statement after Miranda, rather than to silence itself, was not a Doyle violation). Next, Sentencing afforded Espinosa Guidelines adequate particularly review a in if the range light sentence for of to his a have sentence been Espinosa’s limited reasonableness, below appropriate criminal criminal an and conduct, history. applying the abuse We of Gall v. United States, 552 U.S. 38, 46 We first review for significant procedural error, and sentence is free substantive reasonableness. his that would deterrence discretion standard. (2007). contends sentence is from such error, Id. at 51. substantively we then consider Espinosa contends that unreasonable. Substantive reasonableness is determined by considering the totality of the circumstances, and properly-calculated if the Guidelines sentence range, presumption of reasonableness. this is within court applies the a United States v. Strieper, 666 F.3d 288, 295 (4th Cir. 2012). “Any sentence that is within or below a properly calculated Guidelines range is presumptively [substantively] reasonable. Such a presumption can only be rebutted by showing that the 6 Appeal: 16-4295 Doc: 43 Filed: 02/10/2017 Pg: 7 of 8 sentence is unreasonable when measured against the 18 U.S.C. § 3553(a) [(2012)] factors.” United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014) (internal citation omitted). The district court considered that the offense involved Espinosa’s participation in a conspiracy to distribute a large amount of cocaine. Espinosa delivered a kilogram of cocaine to a deal involving a confidential informant, possessed a firearm, and hid 16 kilograms of cocaine, worth approximately location of which he did not disclose. $400,000, the The court noted the defendant’s age, his lack of prior criminal history, and the possibility Espinosa coconspirator. was motivated to protect his father, a The court determined that these circumstances were insufficient to mitigate the totality of the circumstances. The court recognized sufficient but sentencing purposes, factors of not its obligation greater and Espinosa’s than compared to impose necessary the coconspirators, to a sentence comply with sentencing ranges but the given and highly addictive nature of cocaine and the violence associated with it, and that disclose the the court location was of troubled 16 by kilograms Espinosa’s of failure cocaine, concluded that a sentence of 188 months was necessary. has not rebutted the presumption of reasonableness. sentence was not an abuse of discretion. 7 the to court Espinosa Thus, the Appeal: 16-4295 Doc: 43 Filed: 02/10/2017 Pg: 8 of 8 Accordingly, we affirm the judgment. We deny Espinosa’s motion to file a pro se supplemental brief. oral argument adequately because presented in the the facts and materials legal before We dispense with contentions this court are and argument would not aid the decisional process. AFFIRMED 8

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