                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 07-3658

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

E RNEST M YERS,
                                               Defendant-Appellant.



             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 06 CR 174—Milton I. Shadur, Judge.



       A RGUED M ARCH 31, 2009—D ECIDED JULY 1, 2009




 Before F LAUM, M ANION, and R OVNER, Circuit Judges.
  M ANION, Circuit Judge. Ernest Myers (a.k.a. “Tank”) was
convicted of attempted arson under 18 U.S.C. § 844(i) after
his business burned down. He appeals, claiming the
government’s closing statement deprived him of his right
to a fair trial and his Confrontation Clause rights. Myers
also asserts that he is entitled to a limited remand for
resentencing. He was acquitted on five of the six counts
2                                               No. 07-3658

related to the arson. Myers objects to the district court’s
consideration of the acquitted charges as relevant conduct
at sentencing. We affirm.


                             I.
  Ernest Myers rented a warehouse in the City of Joliet
(“the City”) to establish a for-profit recreation center for
teenagers, where the youth could shoot pool, play video
games, dance, and enjoy comedy shows. He dubbed the
business “Against All Odds.” Unfortunately, the odds were
against Myers. Shortly after opening the center in late 2000,
Myers had to apply to the City for permits to run pool
tables, video games, and dances. The City granted him a
permit for video games, but denied him permits for pool
tables and dances. Myers was forced to return the lucrative
pool tables he had rented. The City then demanded that
Myers pave the parking lot, erect a screen between his and
the adjoining lots, install a sidewalk, and conform to
landscape and setback ordinances. Myers was also forced
to make the bathrooms handicapped-accessible and to
install fire extinguishers and emergency exits. Squeezed at
one end by the denial of revenue-producing pool tables
and dances and at the other end by the required improve-
ments, Against All Odds closed on April 26, 2001.
  Having lost all his investment, and having received a
notice to quit the premises because of his failure to pay
over $7,000 in overdue rent, according to the government
Myers turned to arson. He had taken out $500,000 in
property damage insurance on the property, which was
owned by Ronald Schumacker. Myers’s nephew Rodney
No. 07-3658                                                3

Bew testified that Myers approached him and asked if he
could find someone to burn down the building because “he
was not going to let the City beat him out of his invest-
ment.” Bew also testified that a few days later Myers told
him that he had opened a gas pipeline in the building
hoping that it would blow up. Anthony Dunn stated that
Myers asked him for advice in starting a fire. Dunn sug-
gested blowing out the pilot light and placing a candle
nearby, and he and Myers went to the warehouse and did
so. However, the building failed to ignite. Will Pruitte
testified that Myers asked him how to start a fire. Pruitte
suggested loosening a gas line. According to Pruitte, on
May 5, 2001, he and Myers traveled to Against All Odds,
where Pruitte banged on a pipe but did not open the line.
He testified that he saw Myers pouring gasoline on the
floor and making a gasoline trail to the door.
  Although a fire was not lit on May 5, flames engulfed the
building on May 7. Pruitte testified that the next morning
Myers said, “Fuck you guys. I had to do it myself.” Myers
and Schumacker filed insurance claims after the fire and
collected approximately $35,000 and $197,000, respectively.
  Meanwhile, fire investigators scrutinized the debris. A
trained accelerant detection dog named Smitty sniffed the
scene and alerted at one location. Smitty also showed
interest in several other areas at the scene. When investiga-
tors tested samples from those areas, including carpet
fibers from the floor, no accelerant was found.
 Myers, Dunn, and Pruitte were indicted by a grand jury.
Dunn and Pruitte then pleaded guilty and testified against
Myers. In a separate case unrelated to the arson, Bew also
4                                                 No. 07-3658

pleaded guilty on the condition that he testify against
Myers. Bew, Dunn, and Pruitte testified at trial as outlined
above. A fire investigator testified regarding Smitty’s
reactions and the forensic findings, and concluded that the
fire was intentionally set because multiple fires had been
set in the building at different points. It was stipulated that
the only gasoline found on the site was in a plastic con-
tainer in a storage area. In his defense, Myers’s wife
testified that he had been at home from 6:30 p.m. to
10:00 p.m. on the night the center burned. Myers’s defense
attorney also attempted to cast suspicion on Anthony Hite,
who had invested money in Against All Odds and at-
tempted unsuccessfully to collect on the insurance policy.
  During closing arguments, Myers’s attorney highlighted
the fact that no forensic evidence supported the govern-
ment’s contention that Myers had poured gasoline on the
floor of Against All Odds. In its rebuttal closing argument,
the government responded with the following argument:
    [Defense counsel] says, “Well, the arson people didn’t
    find any gasoline when they went through.” Another
    thing, you’ve got to remember something, too.
    Firefighters were there that day. They’re pouring a lot
    of water into that building. It was water. They had
    hoses, they had to do a defensive attack. You heard
    about that. They had to break in the doors to fight the
    fire from the inside. So the fact you might—you didn’t
    see evidence of gasoline apart from the burned gaso-
    line can that you did hear testimony about, any specu-
    lation on the part of [defense counsel] about why or
    why there wasn’t gasoline can be easily explained by
No. 07-3658                                                5

    the fact that there were firefighters that were in there
    that night trying to extinguish that fire with water.
    Water has a tendency to sweep through and remove all
    sorts of different things that might have been on the
    ground. So, ladies and gentlemen, that’s an easy
    explainable different part of what [defense counsel]
    was trying to suggest.
Myers’s attorney did not object to that argument. Although
Myers had been charged with attempted arson, arson, use
of fire to commit a felony, and use of mail and wire
communications to commit insurance fraud, the jury
acquitted him on all counts except the attempted arson
charge which stemmed from the events that occurred on or
before May 5, a felony under 18 U.S.C. § 844(i). Thus,
Myers was acquitted on all counts related to the events of
May 7, when Against All Odds burned and the fire depart-
ment was brought in.
  At sentencing, the district court calculated the guidelines
range for the attempted arson count at 210 to 262 months.
This range reflected the court’s determination that Myers
was a career offender, based on 20-year-old convictions for
residential burglary and drug possession with intent to
deliver. The district court considered Myers’s acquitted
conduct in calculating his sentence. Defense counsel
argued that a lower sentence was warranted based on the
20-year lapse of time between Myers’s present offense and
his earlier convictions. The district court agreed and
sentenced Myers to 180 months. Myers appeals.
6                                                    No. 07-3658

                                II.
  On appeal, Myers challenges the government’s state-
ments in its closing argument that water from the fire
hoses could have washed away the gasoline that Myers
allegedly dumped. He claims that, by making this argu-
ment for the first time in its rebuttal closing argument with
no opportunity for him to respond, the government
deprived him of his right to a fair trial. Myers also claims
that his right under the Confrontation Clause was violated
by the government’s argument, because those comments
constituted a “phantom expert witness” that Myers could
not confront.
  Because Myers’s attorney did not object to the govern-
ment’s argument at trial, we review these claims for plain
error. United States v. Middlebrook, 553 F.3d 572, 577 (7th
Cir. 2009). Myers must show: “(1) that there was error,
(2) that the error was plain (in the sense of obvious),
(3) that the error affected his substantial rights, and
(4) that, if the first three points are established, the error
seriously affects the fairness, integrity, or public reputation
of the judicial proceedings.” United States v. Zawada, 552
F.3d 531, 535 (7th Cir. 2008).
  When a criminal defendant claims that a prosecutor
made improper remarks in his closing argument, we
evaluate the claim under the rubric of prosecutorial
misconduct to determine if a defendant has been deprived
of his right to a fair trial. United States v. Clark, 535 F.3d 571,
580 (7th Cir. 2008); United States v. Willis, 523 F.3d 762, 771
(7th Cir. 2008). A defendant must show both that the
remark was improper and that he was prejudiced. Clark,
535 F.3d at 580.
No. 07-3658                                                7

   We first consider the propriety of the part of the govern-
ment’s closing argument where Myers criticizes the
reference to the “phantom” expert. Under the Federal
Rules of Evidence, “expert testimony is appropriate if
‘specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue.’ ”
Simonson v. Hepp, 549 F.3d 1101, 1106 (7th Cir. 2008) (citing
Fed. R. Evid. 702). This court explained that “[a]lthough
these rules do not require expert testimony—they only say
when it is permissible—they point to a basic truth of trial
practice: expert testimony is often needed to eliminate
speculation.” Id. at 1106-07. Here, Myers argues that expert
testimony was necessary to eliminate speculation by the
jury regarding the absence of gasoline. On the one hand, it
is surely within the understanding of the reasonable juror
that water acts to clean surfaces such as carpets. Most
persons in our society have enough experience with
regular hygiene and common tools such as power-washers
to be able to judge the cleansing effects of water. Had the
government argued the mere possibility that water could
have cleaned or diluted the surface of the carpet so that
Smitty missed the scent of any accelerant, such an argu-
ment may have been permissible even without expert
testimony.
  On the other hand, the government did not couch its
argument in such hypothetical terms. Rather, the govern-
ment stated that the absence of gasoline was “easily
explained” by the water from the fire hoses and that water
“has a tendency” to “remove all sorts of different things”
from the ground. In other words, the government may
have crossed the line from suggesting that such a hypotheti-
8                                                No. 07-3658

cal event occurred to vouching for the fact that it did occur.
To the extent that the government did cross the line, its
argument was an invitation for the jury to speculate on the
absence of evidence and was impermissible in the absence
of expert testimony. Indeed, while a reasonable juror
presumably has firsthand knowledge of what happens
when water is splashed on a surface, that juror might not
know how water affects a substance like gasoline, espe-
cially if the gasoline was poured two days earlier.
  However, even supposing that the government’s argu-
ment was improper, Myers has not shown that he has been
prejudiced. “In determining prejudice, we consider the
following factors: (1) whether the prosecutor misstated the
evidence; (2) whether the remark implicated a specific
right; (3) whether the defendant invited the remark;
(4) whether the district court provided (and the efficacy of)
a curative instruction; (5) whether the defendant had an
opportunity to rebut the remark; and (6) the weight of the
evidence against the defendant.” Clark, 535 F.3d at 580-81.
Regardless of whether “ ‘the prosecutors’ remarks were
undesirable or even universally condemned[,] [t]he
relevant question is whether the prosecutors’ comments so
infected the trial with unfairness as to make the resulting
conviction a denial of due process.’ ” United States v.
Washington, 417 F.3d 780, 786 (7th Cir. 2005) (quoting
Darden v. Wainwright, 477 U.S. 168, 181 (1986)).
  The Clark factors show that Myers was not prejudiced
here. First, the district court instructed the jury that the
statements of the attorneys were not evidence. We have
frequently stated that “jurors are presumed to follow
No. 07-3658                                                9

limiting and curative instructions unless the matter
improperly before them is so powerfully incriminating that
they cannot reasonably be expected to put it out of their
minds.” United States v. Curry, 538 F.3d 718, 728 (7th Cir.
2008). Here, the government’s remark was not “so power-
fully incriminating” that jurors would have been unable to
set it aside, because the point was tangential to the thrust
of the government’s case. While this remark would have
been better left unsaid, there was nothing scientific about
noting that sprayed water sweeps through and removes
things on the ground. Second, the weight of the evidence
was against Myers for his conviction on the attempted
arson charge. Three witnesses testified that Myers ap-
proached them about setting a fire. Dunn testified that he
assisted Myers on one attempt to start a fire, and Pruitte
testified that he helped Myers on a second failed attempt
and that he saw Myers pouring gasoline on the floor. Police
found gasoline in the warehouse, thereby connecting
gasoline with the crime scene. Moreover, Myers had a
motive to collect insurance money to offset his losses in the
failed business. Thus, the weight of the evidence strongly
supported the jury’s guilty verdict on the attempt charge.
Although Myers was acquitted on the charge of arson, the
evidence related to that charge was not as strong as the
evidence related to the attempt charge. Third, the defen-
dant invited the remark by commenting upon the lack of
gasoline in the samples tested by the government. Al-
though Myers had no chance to respond to the govern-
ment’s argument concerning water’s potential effect on the
gasoline, on balance Myers was not prejudiced by the
government’s remark. Moreover, even assuming that there
10                                                    No. 07-3658

was plain error that was prejudicial to Myers, we cannot
conclude that the government’s statement was a “particu-
larly egregious error” that resulted in a “miscarriage of
justice,” or that the “fairness, integrity, or public reputation
of judicial proceedings” have been seriously compromised.
Therefore, under the plain error standard of review, Myers
has not shown error requiring reversal. 1
  Myers also argues that his case should be remanded for
resentencing in light of Kimbrough v. United States, 552 U.S.
85 (2007), which held that the crack cocaine sentencing
guidelines are advisory and not mandatory. Myers argues
that the crack cocaine guidelines were deemed advisory
because they were based on policy choices of the Sentenc-
ing Commission, rather than empirical evidence. Accord-
ing to Myers, because the career offender guidelines were
similarly based on policy choices, those guidelines are also
advisory and the district court was free to depart from



1
   Myers also claims that his right under the Confrontation
Clause was violated by the government’s rebuttal closing
argument. That is, Myers asserts that in its rebuttal closing
argument the government implicitly referred to a “phantom
expert witness.” Myers claims that because he was unable to
confront this phantom witness, he was denied his right “to be
confronted with the witnesses against him.” U.S. Const. amend.
VI. However, because there was no witness here, the Confronta-
tion Clause is not applicable. See, e.g., United States v. Irby, 558
F.3d 651, 655 (7th Cir. 2009) (stating that the Confrontation
Clause is implicated by testimonial hearsay). Myers’s Confronta-
tion Clause argument is thus subsumed into his prosecutorial
misconduct argument.
No. 07-3658                                                11

them. Hence, Myers asserts that we should remand to the
district court so that it may exercise its ability to depart
from the career offender guidelines. Because Myers did not
raise this precise argument in the district court, we review
this claim for plain error.
  The problem with Myers’s argument is that the district
court did depart from the career offender guidelines.
Rather than imposing a sentence within the range of 210 to
262 months, the district court instead imposed a sentence
of 180 months, based on the length of time since Myers’s
previous convictions. The district court thus clearly
considered the guidelines range to be advisory. Because the
district court considered the guidelines to be advisory, took
into account Myers’s apparent change in behavior and job
history, and imposed a sentence below the guidelines
range, no plain error occurred and a remand for
resentencing is unnecessary.
  Myers’s final argument is that his acquitted conduct
should not have been considered at sentencing. However,
we have stated that district courts may consider such
conduct if it has been proven by a preponderance of the
evidence. See, e.g., United States v. Price, 418 F.3d 771, 788
(7th Cir. 2005). Accordingly, we reject this final argument.


                             III.
  Even if we assume that the government made improper
statements during its closing rebuttal argument, Myers was
not prejudiced by these statements. Accordingly, he has
failed to show a violation of his right to a fair trial. More-
12                                             No. 07-3658

over, because it was not testimonial hearsay, the improper
argument did not constitute a Confrontation Clause
violation. The district court clearly considered the guide-
lines to be advisory; hence, a remand for resentencing is
unnecessary. Finally, the district court’s consideration
during sentencing of Myers’s acquitted conduct was
proper because it found those actions had been proven by
a preponderance of the evidence. For these reasons, the
judgment of the district court is A FFIRMED.




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