                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                              May 30, 2008
                                No. 07-11269                THOMAS K. KAHN
                            Non-Argument Calendar               CLERK
                          ________________________

                      D. C. Docket No. 06-20457-CR-MGC

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

JOSE PEDRON,

                                                           Defendant-Appellant.

                          ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                                (May 30, 2008)

Before ANDERSON, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      Jose Pedron appeals from his convictions and 175-month sentence for

possession with intent to distribute cocaine on July 14, 2006, in violation of 21
U.S.C. § 841(a)(1) (“Count 2”); possession with intent to distribute amphetamines

on July 14, 2006, in violation of 21 U.S.C. § 841(a)(1) (“Count 3”); possession

with intent to distribute amphetamines on July 17, 2006, in violation of 21 U.S.C. §

841(a)(1) (“Count 4”); and possession of cocaine on July 17, 2006, in violation of

21 U.S.C. § 844(a) (“Count 5”). Pedron raises four challenges to his convictions:

(1) the government committed prosecutorial misconduct in its closing argument;

(2) the district court abused its discretion in allowing a prior conviction to be used

to impeach Pedron’s testimony; (3) the district court abused its discretion in

allowing law enforcement officers to testify as lay witnesses; and (4) the evidence

was insufficient to sustain his convictions. As to his sentence, Pedron argues that:

(1) the district court improperly applied the obstruction-of-justice enhancement;

and (2) his ultimate sentence was unreasonable. After thorough review, we affirm.

      We review a preserved claim of prosecutorial misconduct de novo. United

States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006), cert. denied, 127 S. Ct.

1305 (2007). We review preserved evidentiary rulings for abuse of discretion.

United States v. Masferrer, 514 F.3d 1158, 1162 (11th Cir. 2008). When a district

court’s evidentiary ruling is erroneous, we will not reverse if the error was

harmless. United States v. Khanani, 502 F.3d 1281, 1292 (11th Cir. 2007). “An

error is harmless unless there is a reasonable likelihood that [it] affected the



                                          2
defendant’s substantial rights.”           Id. (internal quotation omitted). We review the

sufficiency of the evidence supporting a criminal conviction de novo, examining

the evidence in a light most favorable to the government and making all credibility

choices in the government’s favor. United States v. Garcia-James, 484 F.3d 1311,

1319 (11th Cir. 2007), petition for cert. filed (June 11, 2007) (No. 06-11863).

When a sentencing enhancement for obstruction of justice is imposed, we review

the district court’s factual findings for clear error and its application of the

Sentencing Guidelines to those facts de novo. United States v. Massey, 443 F.3d

814, 818 (11th Cir. 2006). Finally, we review the ultimate sentenced imposed by a

district court for “reasonableness,” which “merely asks whether the trial court

abused its discretion.”         United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir.

2008) (quoting Rita v. United States, 127 S. Ct. 2456, 2465 (2007)).1

        First, we find no merit to Pedron’s contention that the government engaged

in misconduct during its closing argument by making three “misstatements”: (1)

vouching for its position by stating “[o]f course [Pedron] knowingly possessed

those pills”; (2) “belittl[ing]” defense counsel and strategy by comparing a portion



        1
          As discussed below, however, several of Pedron’s claims relating to prosecutorial
misconduct, evidentiary rulings, and his sentence were not raised at trial. In these circumstances,
we review the challenges for plain error, and will only reverse if there is (1) error that is (2) plain,
(3) affects substantial rights, and (4) seriously affects the fairness, integrity, or public reputation of
judicial proceedings. United States v. Martinez, 407 F.3d 1170, 1173 (11th Cir. 2005).

                                                    3
of counsel’s defense to a “grade school playground tactic”; and (3) shifting the

burden of proof by telling the jury that it had to weigh the defense’s case in making

its decision. Notably, Pedron did not object to the first two of these comments at

trial. “To establish prosecutorial misconduct, the remarks must be improper, and

the remarks must prejudicially affect the substantial rights of the defendant.”

Eckhardt, 466 F.3d at 947 (internal quotation and punctuation omitted).        Here,

none of the comments were improper -- the vouching comment was simply an

argument based on the evidentiary circumstances, the alleged personal attack

comment was a valid remark on the defense strategy, and the burden-shifting

comment properly addressed the defense’s subpoena power. Moreover, even if

there was error concerning this last comment, any possible prejudice was obviated

since the prosecutor himself made clear that the burden was entirely on the

government, noting that only the government had an obligation to call any

witnesses. Accordingly, we find no error -- let alone plain error -- in Pedron’s

claims of prosecutorial misconduct.

      Nor did the district court abuse its discretion by allowing the government to

impeach Pedron with a prior conviction for conspiracy to distribute controlled

substances. If a criminal defendant chooses to testify, his credibility is placed in

issue, and can be impeached with evidence of prior convictions. United States v.



                                         4
Vigliatura, 878 F.2d 1346, 1350-51 (11th Cir. 1989). Federal Rule of Evidence

609 says that for purposes of attacking a testifying defendant’s character for

truthfulness, a prior conviction “shall be admitted if the court determines that the

probative value . . . outweighs its prejudicial effect to the accused. . . .” Fed. R.

Evid. 609(a)(1). At trial, Pedron put his credibility at issue by testifying, and the

district court limited the government to one question about the conviction and later

admonished the jury that a prior conviction could not be considered in determining

Pedron’s guilt in this case.    In so doing, the district court did not abuse its

discretion in admitting Pedron’s prior conviction.

      We also reject Pedron’s argument that the district court abused its discretion

by allowing two lay witnesses to testify as expert witnesses without being qualified

as experts.    Specifically, Pedron challenges: (1) Drug Enforcement Agency

(“DEA”) Special Agent Chad Hughes’s testimony, without the establishment of

background support, that “handwriting” was a code word for the quality of a

controlled substance; and (2) DEA Special Agent Michael Gannon’s testimony

about the inability to obtain fingerprints from plastic bags, even though he was not

a fingerprint expert. Federal Rule of Evidence 701 limits a witness’ testimony, if

not testifying as an expert, to opinions or inferences “which are (a) rationally based

on the perception of the witness, (b) helpful to a clear understanding of the



                                          5
witness’ testimony or the determination of a fact in issue, and (c) not based on

scientific, technical, or other specialized knowledge within the scope of Rule 702.”

Fed. R. Evid. 701. We have held that employees and officers may testify as lay

witnesses “based upon their particularized knowledge garnered from years of

experience within the field.”   Tampa Bay Shipbuilding & Repair Co. v. Cedar

Shipping Co., 320 F.3d 1213, 1223 (11th Cir. 2003). We can find no error, plain

or otherwise, in admitting Hughes’s lay testimony -- to which Pedron did not

object at trial -- as it was based on Hughes’s experience as a law enforcement

officer. While Gannon’s testimony may be the kind that should have been offered

by a fingerprint expert, we need not reach this issue because the error, if any, was

harmless -- that is, the evidence unaffected by this error supported Pedron’s

convictions.

      Indeed, contrary to Pedron’s arguments, the evidence was sufficient to

convict him of each count. A conviction under 21 U.S.C. § 841(a)(1) requires the

government to establish that the defendant “(1) knowingly (2) possessed [a

controlled substance] (3) with intent to distribute it.” United States v. Faust, 456

F.3d 1342, 1345 (11th Cir. 2006) (internal quotation omitted), cert. denied, 127 S.

Ct. 615 (2006). “The government may prove constructive possession if it shows a

defendant maintained dominion or control over the drugs or over the premises



                                         6
where the drugs are located.”      Id. (internal quotation omitted). To do so, the

government may rely on direct or circumstantial evidence and inferences drawn

from the circumstances. Id. at 1345-46. The evidence need not exclude “every

reasonable hypothesis of innocence or be wholly inconsistent with every

conclusion except guilt.” Id. at 1345 (internal quotation omitted).

      As for Counts 2 and 3, Special Agent Gannon testified that the government’s

source, Eli Slieman, provided drugs to the DEA on July 14, 2006. Transcripts of

subsequent phone calls between Slieman and Pedron indicated that: (1) Slieman

called Pedron to tell him that “it” would be “check[ed] out and then they’ll let me

know,” and Pedron responded that it was “A-1”; (2) Slieman asked how many pills

there were, and Pedron replied that there were two; and (3) Pedron said that it had

been four days and he needed the money, noting the perfect “handwriting,” which

Special Agent Hughes testified meant drug purity. In response, Pedron testified

that “A-1” referred to his roofing business, that the “pills” referred to prescription

medicine that he had previously found in Slieman’s car, and that the “money” was

in connection with his roofing business and house payments. The jury plainly

disbelieved Pedron’s explanations, as evidenced by its verdict, and his statements

explaining away his suspicious behavior can be considered substantive evidence of

his guilt.   United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995) (“[A]



                                          7
statement by a defendant, if disbelieved by the jury, may be considered as

substantive evidence of the defendant’s guilt.”) (emphasis omitted). In addition,

the testifying forensic chemist noted that the drugs recovered on July 14, 2006 and

July 17, 2006 shared appearance and purity level. Faust, 456 F.3d at 1345-46

(possession can be proved with circumstantial evidence).

      As for Count 4, Special Agent Gannon testified that the DEA searched

Pedron’s car and discovered 4,000 tablets of amphetamines in a briefcase in the

rear of the truck’s cabin.    Moreover, Special Agent Hughes testified that he

discovered Pedron’s drivers license and Social Security card in the briefcase, near

the drugs. At a minimum, the government established constructive possession in

as much as Pedron had control over the vehicle where the drugs were discovered.

Id. at 1345. In short, based upon the monitored phone transcripts, the Special

Agents’ testimony interpreting the phone calls, Pedron’s testimony, and the drugs

recovered from Pedron’s vehicle, there was abundant evidence from which a jury

could find Pedron guilty beyond a reasonable doubt of all counts.

      Finally, Pedron’s challenges to his sentence -- both of which we review for

plain error -- are also unsuccessful. Section 3C1.1 of the guidelines provides for a

two-level enhancement if:

      (A) the defendant willfully obstructed or impeded, or attempted to
      obstruct or impede, the administration of justice with respect to the

                                         8
      investigation, prosecution, or sentencing of the instant offence of
      conviction, and (B) the obstructive conduct related to (i) the
      defendant’s offense of conviction and any relevant conduct; or (ii) a
      closely related offense.

U.S.S.G. § 3C1.1. A § 3C1.1 enhancement is appropriate if the defendant has

committed perjury. Id. cmt. n.4(b). In defining perjury for purposes of § 3C1.1,

the Supreme Court has relied on the federal criminal perjury statute and described

perjury as “[a] witness testifying under oath . . . [who] gives false testimony

concerning a material matter with the willful intent to provide false testimony,

rather than as a result of confusion, mistake, or faulty memory.” United States v.

Dunnigan, 507 U.S. 87, 94 (1993). Four elements are required for a court to find

perjury under § 3C1.1: (1) the testimony must be under oath; (2) the testimony

must be false; (3) the testimony must be material; (4) the testimony must be given

with willful intent to provide false testimony and not as a result of mistake,

confusion, or faulty memory. United States v. Singh, 291 F.3d 756, 763 n.4 (11th

Cir. 2002). While “it is preferable for a district court to address each element of

the alleged perjury in a separate and clear finding,” Dunnigan, 507 U.S. at 95, a

district court’s decision to enhance is sufficient if the “court makes a finding of an

obstruction of, or impediment to, justice that encompasses all of the factual

predicates for a finding of perjury.” Id. Here, the district court made a factual

finding that the jury had to completely reject Pedron’s testimony in order to find

                                          9
him guilty. This finding -- which was not clearly erroneous -- encompassed the

factual predicates of perjury, and therefore, there was no error, plain or otherwise,

in the district court’s application of the enhancement.

       Turning to the ultimate sentence imposed, our reasonableness review

consists of two steps. Pugh, 515 F.3d at 1190. First, we must “‘ensure that the

district court committed no significant procedural error, such as failing to calculate

(or improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen sentence --

including an explanation for any deviation from the Guidelines range.’”

Id. (quoting Gall v. United States, 128 S.Ct. 586, 597 (2007)).2 If we conclude that

the district court did not procedurally err, we must consider the “‘substantive

reasonableness of the sentence imposed, under an abuse-of-discretion standard,’”

based on the “‘totality of the circumstances.’” Id. (quoting Gall, 128 S. Ct. at 597).

“The party who challenges the sentence bears the burden of establishing that the



       2
          The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed 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 the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).

                                                10
sentence is unreasonable in the light of both th[e] record and the factors in section

3553(a).” United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006) (internal

quotation omitted).

      Rather than disputing the substantive reasonableness of his sentence, Pedron

primarily argues that the district court committed procedural error by failing to

expressly apply the § 3553(a) factors.     However, “the district court need only

acknowledge that it considered the § 3553(a) factors, and need not discuss each of

these factors in either the sentencing hearing or in the sentencing order.” United

States v. Amedeo, 487 F.3d 823, 833 (11th Cir.), cert. denied, 128 S. Ct. 671

(2007) (internal quotation and punctuation omitted); United States v. Scott, 426

F.3d 1324, 1329 (11th Cir. 2005) (“nothing in Booker or elsewhere requires the

district court to state on the record that it has explicitly considered each of the §

3553(a) factors or to discuss each of the § 3553(a) factors”). In this case, the

district court correctly calculated Pedron’s guidelines range after applying the §

3C1.1 enhancement; it stated that the guidelines were advisory, and considered the

parties’ arguments and the statutory factors; it noted that Pedron had a lengthy

criminal history and that he was a fugitive from justice for ten years; and it then

made a downward variance by two offense levels, sentencing Pedron to 175




                                         11
months’ imprisonment, inside the advisory guidelines range of 151-188 months.3

Accordingly, Pedron has not shown that his sentence was unreasonable, nor that

the district court committed any error, much less plain error, in imposing it.

       AFFIRMED.




       3
         See Rita, 127 S. Ct. at 2462 (holding that a court of appeals may afford a presumption
of reasonableness to a within-Guidelines sentence); United States v. Campbell, 491 F.3d 1306, 1314
n.8 (11th Cir. 2007) (noting that, although we have not normally afforded a within-Guidelines
sentence a presumption of reasonableness, the Rita decision calls that policy into question).


                                               12
