US v. Jorge Espinosa

Filing

UNPUBLISHED PER CURIAM OPINION filed.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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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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.”

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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

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in

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Doyle

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and

defendant.”

in

Greer—the

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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

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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

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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
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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

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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