                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 22 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-10042

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00502-KJD-
                                                 PAL-1
  v.

DENNIS JAMES GRAVES,                             MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Kent J. Dawson, District Judge, Presiding

                     Argued and Submitted December 7, 2011
                            San Francisco, California

Before: ALARCÓN, CALLAHAN, and N.R. SMITH, Circuit Judges.




       Dennis Graves appeals his jury conviction for bank robbery and his

subsequent sentence. We have jurisdiction under 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a). We affirm.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. Under either abuse of discretion or de novo review, we conclude that the

prosecutor’s closing statements did not constitute prosecutorial misconduct.

      When the prosecutor makes comments about the reasonable doubt standard

in closing argument, this will “not constitute reversible error unless the[

statements] are so gross as probably to prejudice the defendant . . . .”      United

States v. Tucker, 641 F.3d 1110, 1121 (9th Cir. 2011). We analyze the

prosecutor’s statements in “context,” and viewed in light of other statements at

trial, to determine whether it was reasonably likely that the jury misapplied the

reasonable doubt standard. Id. at 1122; see also Victor v. Nebraska, 511 U.S. 1, 5

(1994); Estelle v. McGuire, 502 U.S. 62, 72 n.4 (1991).

      Taken in context, the prosecutor’s challenged statements did not incorrectly

describe the Government’s burden. The prosecutor himself stated on two

occasions that the Government had the burden of proof and that the defense had no

burden; the defense counsel correctly described the Government’s burden; and the

trial court correctly stated the reasonable doubt standard to the jury. Moreover,

even in isolation, the prosecutor’s analogy about rain and buckets of water did not

make it reasonably likely that the jury would misinterpret the Government’s

burden. Rather, it merely highlighted the speculative nature of the doubts the

defense was trying to cast on the Government’s case.


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      2. A district court “shall impose a sentence sufficient, but not greater than

necessary, to comply with the purposes set forth in [§ 3553(a)(2)].” 18 U.S.C. §

3553(a). While the district court must consider all factors set out in § 3553(a)

before imposing a sentence, “[t]he district court need not tick off each of the §

3553(a) factors to show that it has considered them.” United States v. Carty, 520

F.3d 984, 992 (9th Cir. 2008) (en banc). Under abuse of discretion review,

reversal based on substantive unreasonableness of a sentence is not warranted

unless, “upon reviewing the record, we have a definite and firm conviction that the

district court committed a clear error of judgment in the conclusion it reached upon

weighing the relevant factors.” United States v. Edwards, 595 F.3d 1004, 1015

(9th Cir. 2010) (internal quotation marks omitted).

      The district court did not abuse its discretion when it refused to grant a

variance, and it imposed a low-end, within-Guidelines sentence. In this case, the

district court considered Graves’ criminal history, as well as the dangerous nature

in which Graves committed the present crime, and found that there were no

circumstances to justify Graves’ request for a variance. The district court also

expressly found that Graves’ sentence was consistent with the factors set forth in §

3553(a). Graves’ argument that “studies” show a “disparity” in sentencing of

career offenders (raised for the first time on appeal) is irrelevant. The district court


                                           3
could have—but reasonably decided not to—exercise its discretion in favor of a

sentence below the career offender-based Guidelines range.

      AFFIRMED.




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