                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________          FILED
                                                 U.S. COURT OF APPEALS
                              No. 09-16023         ELEVENTH CIRCUIT
                                                     AUGUST 17, 2010
                          Non-Argument Calendar
                                                        JOHN LEY
                        ________________________
                                                         CLERK

                 D. C. Docket No. 08-00462-CR-T-24-TBM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

JIMMIE LEE CREWS,

                                                          Defendant-Appellant.


                        ________________________

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

                              (August 17, 2010)

Before PRYOR, MARTIN and FAY, Circuit Judges.

PER CURIAM:

     Jimmie Lee Crews appeals from his conviction and 210-month sentence
imposed after a jury found him guilty of three counts of distributing a detectable

amount of cocaine base. He argues that his conviction should be reversed because

the district court erroneously denied his request for a mistrial based on a statement

made in the government’s closing argument. He also challenges his sentence,

arguing that the district court’s consideration of acquitted conduct violated his

Fifth and Sixth Amendment rights and that his sentence was erroneously enhanced

for obstruction of justice and possession of a firearm. After thorough review and

consideration of the parties’ briefs, we affirm.

                                           I.

      In the spring of 2008, the Polk County Florida Sheriff’s Office made a series

of undercover drug purchases from Jimmie Lee Crews. On April 24, 2008, an

undercover detective and a confidential informant met Crews at a home in Lake

Hamilton, Florida. The detective purchased $60 worth of crack cocaine from

Crews, who retrieved 0.52 grams of crack cocaine from his right shoe and handed

it to another individual to deliver to the detective. About a week later, on April 30,

2008, the detective again contacted Crews seeking to purchase crack cocaine. This

time, she met Crews at his apartment, where he was observed sitting at a table with

a scale and what appeared to be crack cocaine. Crews sold the detective 1.07

grams of crack cocaine for $100. And finally, on May 29, 2008, the detective



                                           2
called Crews to arrange a third purchase. This time she met Crews at a gas station,

where Crews exchanged 2.7 grams of crack cocaine for $200.

       Law enforcement officers then executed a search warrant at Crews’s

apartment. At the time, Crews was observed walking outside the apartment and

was ordered to the ground. In complying, he dropped a set of keys, which were

used to open the back door to his apartment. In the process of executing the

warrant, officers detected a strong odor of marijuana coming from a vehicle parked

outside. Again using the keys obtained from Crews, they opened the trunk. Inside,

officers found bags containing 755.5 grams of marijuana, 189.0 grams of crack

cocaine, 1,614.2 grams of cocaine, digital scales, a cutting agent, and a license

plate registered to Crews. In the backyard, officers found a white sock containing

a loaded .38 caliber revolver stuffed in the crook of a tree and, a few feet away, a

cooler containing 12 rounds of ammunition similar to the rounds in the loaded gun.

In Crews’s kitchen, they found a holster fitting the gun retrieved outside and a lid

fitting the digital scale found in the trunk of the car.

       Crews was charged in a six-count indictment. Based on the three sales to the

undercover detective, Counts One through Three charged Crews with distributing a

detectable amount of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(C), and 18 U.S.C. § 2. The remaining three counts related to the drugs



                                             3
found in the trunk of the car outside Crews’s apartment and charged him with

possessing with intent to distribute at least 50 grams of cocaine base, 500 grams of

cocaine, and marijuana, all in violation of §§ 841(a)(1) and (b)(1).

      Crews pleaded not guilty and trial was set for February 2009. On February

24, 2009, however, Crews filed a sealed motion for competency examination,

which a magistrate judge granted. He was then evaluated by a court-appointed

psychiatrist, Dr. Donald Taylor. In his report to the court, Dr. Taylor noted that it

was “possible that [Crews was] exaggerating his cognitive impairment in the hope

that it will diminish his level of criminal responsibility.” Nevertheless, Dr. Taylor

ultimately concluded that Crews was incompetent to stand trial because he was

impaired in “his ability to understand the nature and consequences of the charges

and proceedings against him and to consult with his attorney with a reasonable

degree of rational understanding.” Dr. Taylor also concluded, however, that Crews

was a candidate for further evaluation and that he could likely become competent

in one to three months with treatment.

      After his first report, Dr. Taylor was provided several recorded telephone

calls Crews made from the county jail. Those recordings caused Dr. Taylor to

revisit his initial conclusions regarding Crews and he submitted an amended

evaluation to the court. In it, Dr. Taylor observed that Crews expressed intellectual



                                           4
functioning “in the low average to average range.” He also observed that Crews

referred to reading and writing letters, despite reporting at the previous

examination that he could not read. He observed that Crews “was aware of [his]

upcoming psychiatric evaluation” and that Crews “made statements indicating that

he wanted to ‘win the evaluation’” because that meant “‘[t]hey can’t say I knew

what I was doing, like I’m basically retarded,’” adding that “‘[t]he jury can’t do

nothing to you.’” He also observed that Crews said: “‘Once they put down that

you’re crazy they can’t never say you changed’” and that “‘[t]hey can’t hold me

accountable for nothing I did.’” From this, Dr. Taylor concluded that Crews

“feigned cognitive impairment and ignorance of his charges and the legal process”

at the time of his initial evaluation and that it was “probable that [Crews] is

competent to stand trial.” Noting Dr. Taylor’s conclusion that Crews had feigned

cognitive impairment in an effort to avoid trial, the magistrate judge agreed with

Dr. Taylor’s assessment and declared him competent to stand trial.1

       Crews was then tried before a jury. The government presented its case and

Crews elected not to testify or put on any evidence in his defense. The district

court then instructed the jury prior to closing arguments and included the following

instruction regarding Crews’s decision not to testify or put on evidence:


       1
       At a status conference regarding Crews’s competency, Crews’s counsel stated that she
was “somewhat surprised by Dr. Taylor’s initial report, and obviously we now know why.”

                                              5
      It will be your duty to decide whether the Government has proven
      beyond a reasonable doubt the specific facts necessary to find the
      defendant guilty of the crimes charged in the Indictment.

                                      * * *
      [E]very defendant is presumed by the law to be innocent. The law
      does not require a defendant to prove innocence or to produce any
      evidence at all; and if a defendant elects not to testify, you cannot
      consider that in any way in your deliberations. The Government has
      the burden of proving a defendant guilty beyond a reasonable doubt,
      and if it fails to do so you must find the defendant not guilty.

      The jury then heard closing arguments. In her closing, Crews’s lawyer

reiterated that the law did not require the defense to put on any evidence. She

concluded her argument by stating: “Now, I don't get to, uh, get back up here and

talk to you, but what I would like you to do is listen to [counsel for the

government], but I would like you to keep in mind, what would [I (Crews’s

lawyer)] say in rebuttal to that?” The government then gave its rebuttal argument.

It opened by stating: “Ladies and gentlemen, there is no question that Jimmie Lee

Crews was a distributer of drugs, specifically cocaine. There’s no rebuttal, uh, no

other evidence to suggest otherwise for the first three buys.”

      Crews objected and moved for a mistrial, arguing that the government’s

statement that there was “no rebuttal” was an impermissible comment on his right

to remain silent and not to present evidence in his defense. The district court

observed that the government’s argument “could be construed [as referring] to



                                           6
what you [Crews’s lawyer] said in your closing argument.” The government

confirmed that was its intent, but acknowledged that it had been a “[b]ad choice of

words.” The district court denied the motion for mistrial. It granted Crews’s

request for a cautionary instruction, however, admonishing jurors that they should

“keep in mind the Government has the burden of proof in this case and the

defendant does not have any burden of proof.”2 The government reiterated this

point in its summation:

      We have the burden of proof beyond a reasonable doubt. It never
      leaves us. It is our burden. But we’re confident, ladies and
      gentlemen, and hope you agree with us, that we have, in fact, met that
      burden with compelling, solid, direct and circumstantial evidence.

After about an hour-and-a-half of deliberation, the jury found Crews guilty on

Counts One through Three (relating to the three hand-to-hand sales to the

undercover detective) but acquitted him on Counts Four through Six, which related

to the drugs found outside the apartment.

      The United States Probation Office then prepared its presentence report

(“PSR”). Probation found Crews culpable for both the crack cocaine Crews sold to

the detective and for the drugs found outside. As a result, Probation determined

that Crews was culpable for a total of 288.195 grams of crack cocaine, 1,647.3

grams of powder cocaine, and 1,236.1 grams of marijuana. Probation also

      2
          Crews did not object to the adequacy of the cautionary instruction.

                                                  7
determined that Crews was responsible for the gun found in the back yard, noting

that the holster found in Crews’s kitchen fit the gun and that the firearm was found

in close proximity to a large quantity of drugs hidden in the car outside. Based on

the drug quantities involved and, applying a two-level enhancement for possession

of a firearm, Probation determined that Crews’s base offense level was 34. With a

Criminal History Category of VI, Crews’s recommended guidelines range was 262

to 237 months.

      At sentencing, Crews objected to the two-level enhancement for possession

of a firearm and to consideration of the drugs found outside Crews’s apartment

because he had been acquitted of charges relating to those drugs. Probation also

informed the court that the day before, outside of the time for filing objections to

the PSR, the government had objected to its failure to include an enhancement for

obstruction of justice based on Crews’s feigned mental incompetency. Because the

government’s objection was not timely, the district court offered to continue the

sentencing hearing so that Crews’s counsel could prepare to address the issue.

Although she objected to the government’s late objection, Crews’s counsel

declined the district court’s offer of a continuance and indicated that she was

prepared to address the issue.

      After hearing from the parties, the district court sustained the government’s



                                           8
objection and applied a two-level enhancement for obstruction of justice under

U.S.S.G. § 3C1.1. Based on Dr. Taylor’s reports, the district court found that it

was “clear that Mr. Crews thought he was gaming the system,” that, although he

may have some mental issues, “he certainly had enough knowledge to know that he

was trying to game the system and get himself in a situation where the United

States could not prosecute this crime,” and that this resulted in several

continuances.

      The district court overruled Crews’s objections to consideration of acquitted

conduct and the application of the firearm enhancement. Regarding the acquitted

conduct, the district court observed that “having listened to the evidence at trial,

[it] was very surprised at the not guilty verdict,” and found by a preponderance of

the evidence that Crews possessed the drugs discovered in the trunk of the car.

The district court likewise found Crews responsible for the gun found outside.

Noting its proximity to the drugs discovered outside the apartment and the

matching holster located in Crews’s kitchen, the district court found that it was not

unlikely that the firearm was related to the offense and therefore a two-level

enhancement under § 2D1.1(b)(1) was appropriate.

      After resolving the objections to the PSR, Crews’s adjusted guidelines range

would have been 324 to 360 months. The district court, however, varied



                                           9
downward using a one-to-one ratio of crack to powder cocaine. This resulted in an

advisory guidelines range of 168 to 210 months in prison. Considering the § 3553

factors, the district court sentenced Crews at the top-end of the guidelines range.

According to the district court, it selected this sentence because Crews’s criminal

history was “just awful,” beginning at an early age, containing numerous similar

offenses, and reflecting a pattern that Crews resumes selling drugs as soon as he is

released from prison. This appeal followed.

                                          II.

      Crews argues that his conviction should be reversed because the district

court erroneously denied his motion for mistrial based on the government’s

statement in closing argument that there was no “rebuttal” to its case. According

to Crews, this statement shifted the burden of proving his innocence to him and

was an impermissible comment on his decision not to testify in his own defense.

      Because the district court “is in the best position to evaluate the prejudicial

effect of a statement,” we review a district court’s decision to deny a motion for

mistrial for abuse of discretion. United States v. Newsome, 475 F.3d 1221, 1227

(11th Cir. 2007). “A mistrial should be granted if the defendant’s substantial rights

are prejudicially affected. This occurs when there is a reasonable probability that,

but for the remarks, the outcome of the trial would have been different.” Id.



                                          10
      “As part of its obligation to prove guilt beyond a reasonable doubt, the

prosecution may not make comments that would shift the burden of proof to the

defendant.” United States v. Bernal-Benitez, 594 F.3d 1303, 1315 (11th Cir.

2010); see also United States v. Simon, 964 F.2d 1082, 1086 (11th Cir. 1992)

(“[P]rosecutors must refrain from making burden-shifting arguments which

suggest that the defendant has an obligation to produce any evidence or to prove

innocence.”). Likewise, the Fifth Amendment prohibits the government from

commenting directly or indirectly on a defendant’s failure to testify. Isaacs v.

Head, 300 F.3d 1232, 1270 (11th Cir. 2002). We have explained that

      [a] prosecutor’s statement violates the defendant’s right to remain
      silent if either (1) the statement was manifestly intended to be a
      comment on the defendant's failure to testify; or (2) the statement was
      of such a character that a jury would naturally and necessarily take it
      to be a comment on the failure of the accused to testify. The question
      is not whether the jury possibly or even probably would view the
      remark in this manner, but whether the jury necessarily would have
      done so. The defendant bears the burden of establishing the existence
      of one of the two criteria. The comment must be examined in context,
      in order to evaluate the prosecutor’s motive and to discern the impact
      of the statement.

United States v. Knowles, 66 F.3d 1146, 1162-63 (11th Cir. 1995) (quotations and

footnotes omitted).

      We readily conclude that the district court did not abuse its discretion in

denying Crews’s motion for a mistrial. As an initial matter, it is not clear that the



                                          11
government’s comment was improper. Crews’s counsel asked jurors in her closing

argument to consider what she would “say in rebuttal” to the government’s closing

argument. As the district court pointed out, the government’s statement could

reasonably be interpreted as a direct response to the argument by Crews’s counsel

that the jury should ask itself what she, as Crews’s lawyer, would say if given an

opportunity to rebut the government’s closing argument. Given that the

government confirmed that this was its intent and that this interpretation of the

government’s statement was reasonable in the context in which it was made, the

comment was not one that would necessarily be understood as a reference to the

defendant’s failure to testify. The prosecution’s comment therefore did not violate

Crews’s rights not to testify in his defense.3

        Moreover, even if the comment were improper, we have repeatedly

explained that improper remarks by the prosecution may be cured by an instruction

from the district court. See, e.g., United States v. Lopez, 590 F.3d 1238, 1256

(11th Cir. 2009); Newsome, 475 F.3d at 1227. Immediately after the prosecutor’s

statement, the district court instructed the jury that the prosecution has the burden


        3
         We note that the jury acquitted Crews on three of the counts, a result that was
“surprising” to the district court in light of the substantial evidence of his guilt presented at trial.
We think it obvious that the jury considered the evidence before it and held the government to its
burden of proof. The impact of the statement, if there was any, was negligible and Crews cannot
establish that the result of his trial would have been different absent the comment by the
prosecution.

                                                  12
of proof, a point the government reiterated at the conclusion of its closing

argument. The district court’s curative instruction was more than sufficient to

remedy the prosecutor’s statement. That being so, the district court did not err,

much less abuse its discretion, in denying Crews’s motion for mistrial.

                                           III.

      Crews raises three challenges to his sentence. First, he challenges the

district court’s consideration of acquitted conduct in calculating drug quantities for

purposes of sentencing. Second, he argues that the district court improperly

enhanced his sentence for obstruction of justice. And third, he complains that the

district court improperly enhanced his sentence for possessing the firearm found in

the tree outside his apartment. We address each of these challenges in turn.

                                           A.

      Crews argues that the district court improperly attributed the drugs found

outside his apartment to him, despite the fact that he was acquitted by the jury on

charges relating to those drugs. He argues that such consideration of acquitted

conduct at sentencing violates his Fifth and Sixth Amendment rights.

      We acknowledge Crews’s impassioned plea regarding the consideration of

acquitted conduct at sentencing, and we recognize that reasonable minds can and

do differ as to the constitutionality of the practice. See, e.g., United States v. Faust,



                                           13
456 F.3d 1342, 1349–53 (11th Cir. 2006) (Barkett, J., specially concurring). As

Crews concedes, however, binding precedent in this Circuit allows district courts

to consider acquitted conduct in sentencing, so long as the government proves the

conduct in question by a preponderance of the evidence and the sentence imposed

does not exceed what is authorized by the jury’s verdict.4 See, e.g., United States

v. Culver, 598 F.3d 740, 752–53 (11th Cir. 2010); Faust, 456 F.3d at 1347–48;

United States v. Duncan, 400 F.3d 1297, 1304 (11th Cir. 2005). These decisions

have not been overruled by an en banc decision of this Court or the Supreme Court

of the United States and we are not free to disregard them. See United States v.

Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009) (“We may disregard the holding of a

prior opinion only where that holding is overruled by the Court sitting en banc or

by the Supreme Court. To constitute an ‘overruling’ for the purposes of this prior

panel precedent rule, the Supreme Court decision must be clearly on point.”

(citation and quotations omitted)). The district court did not err in considering

conduct for which Crews was acquitted in determining his sentence.

                                                B.

       Crews contends that the district court erroneously applied a two-level

enhancement for obstruction of justice under U.S.S.G. § 3C1.1. Crews raises two


       4
         Crews does not assert that the government failed to satisfy its burden of proof or that
the sentence imposed exceeds the sentence authorized by the jury’s verdict.

                                                14
arguments. First, he argues that the government’s objection was untimely.

Second, Crews claims that the enhancement was unwarranted on the facts of this

case because it improperly punishes him for exercising his right to an examination

when there were bona fide concerns about his competency.

      We review a district court’s decision to consider untimely objections to the

PSR for abuse of discretion. See United States v. Edouard, 485 F.3d 1324, 1351

(11th Cir. 2007). We review a district court’s factual findings for clear error and

the application of an obstruction of justice enhancement based on those facts de

novo. United States v. Bradberry, 466 F.3d 1249, 1253 (11th Cir. 2006).

      The district court did not abuse its discretion in entertaining the

government’s untimely objection to the PSR’s failure to include an obstruction of

justice enhancement. The district court acknowledged that the objection was

untimely and repeatedly offered to continue the sentencing hearing to afford Crews

an opportunity to prepare to address this issue. Yet counsel for Crews declined

each of these offers, explaining that she was prepared to go ahead with sentencing,

and argued the point at length. On appeal, Crews does not claim that he suffered

any prejudice as a result of the untimely objection. On this record, we decline to

find the district court’s decision to entertain the government’s objection an abuse

of discretion.



                                          15
       Nor did the district court err by applying a two-level enhancement for

obstruction of justice. Section 3C1.1 of the sentencing guidelines provides for a

two-level enhancement if “the defendant willfully obstructed or impeded, or

attempted to obstruct or impede, the administration of justice with respect to the

investigation, prosecution, or sentencing of the instant offense of conviction,” and

“the obstructive conduct related to . . . the defendant's offense of conviction and

any relevant conduct.” U.S.S.G. § 3C1.1. The enhancement “is not intended to

punish a defendant for the exercise of a constitutional right.” Id. cmt. n.2.

       When a bona fide doubt exists as to the defendant’s competence to stand

trial, the defendant has a constitutional right to seek a competency hearing. Zapata

v. Estelle, 588 F.2d 1017, 1020 (5th Cir. 1979).5 We have explained, however, that

a defendant “‘surely does not have the right to create a doubt as to his competency

or to increase the chances that he will be found incompetent by feigning mental

illness.’” United States v. Patti, 337 F.3d 1317, 1325 (11th Cir. 2003) (quoting

United States v. Greer, 158 F.3d 228, 237–38 (5th Cir. 1998)). Therefore, we have

found the enhancement appropriate where a defendant’s feigned mental illness

forced his trial to be postponed and caused the government to waste resources on a



       5
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) ( en banc ), we
adopted as binding precedent the decisions of the former Fifth Circuit rendered before the close
of business on September 30, 1981.

                                               16
competency examination, explaining that enhancing a defendant’s sentence in

these circumstances would not chill a defendant’s right to a competency hearing.

Id.

      Here, the district court found that Crews feigned incompetency in an effort

to “game the system” and prevent his prosecution. This, the district court noted,

caused several continuances, thereby delaying his prosecution. It also resulted in a

waste of resources in that it caused Dr. Taylor to undertake a second analysis and

to submit an amended report to the court. Although we acknowledge that there

may have been legitimate concerns as to Crews’s competency, his decision to feign

incompetence in what his own words demonstrate was an effort to obstruct or

impede his prosecution supports an obstruction enhancement under § 3C1.1. The

district court properly enhanced his sentence.

                                         C.

      Finally, Crews challenges the district court’s two-level enhancement for

possession of a firearm under § 2D1.1(b)(1). “We review the district court’s

findings of fact [for a firearm enhancement] under U.S.S.G. § 2D1.1(b)(1) for clear

error, and the application of the Sentencing Guidelines to those facts de novo.”

United States v. Gallo, 195 F.3d 1278, 1280 (11th Cir.1999). Application Note 3

to § 2D1.1(b)(1) explains: “The enhancement for weapon possession reflects the



                                         17
increased danger of violence when drug traffickers possess weapons. The

adjustment should be applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1

cmt. n.3. “Once the government shows that a firearm was present, the evidentiary

burden shifts to the defendant to show that a connection between the firearm and

the offense is clearly improbable.” United States v. Pham, 463 F.3d 1239, 1245

(11th Cir. 2006) (quotation omitted).

      In this case, the district court found that the gun was discovered in the

backyard of the apartment where Crews engaged in the hand-to-hand sale of crack

cocaine, that it was located in close proximity to the substantial quantity of drugs

secreted in the car outside, and that a matching holster was found in Crews’s

kitchen. In view of these findings, which were plainly supported by the record, the

district court’s determination that it “was not clearly improbable” that the weapon

was connected with the offense was not clearly erroneous. The district court

therefore correctly enhanced Crews’s sentence under § 2D1.1(b)(1).

      AFFIRMED.




                                          18
