                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                 FILED
                                                        U.S. COURT OF APPEALS
                              No. 09-15594                ELEVENTH CIRCUIT
                                                              JUNE 10, 2010
                          Non-Argument Calendar
                                                               JOHN LEY
                        ________________________
                                                                CLERK

                    D. C. Docket No. 09-20324-CR-WMH

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

MICHAEL PERICLES,

                                                          Defendant-Appellant.


                        ________________________

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

                               (June 10, 2010)

Before DUBINA, Chief Judge, CARNES and FAY, Circuit Judges.

PER CURIAM:

     Appellant Michael Pericles appeals his conviction and 96-month sentence
for possession of firearms and ammunition by a convicted felon, in violation of 18

U.S.C. § 922(g)(1).

                                             I.

       On appeal, Pericles argues that his conviction under 18 U.S.C. § 922(g)(1) is

unconstitutional because the possession of a firearm by a convicted felon does not

have a substantial effect on interstate commerce. However, Pericles concedes that

our binding precedent may foreclose his Commerce Clause argument.

       Constitutional challenges raised for the first time on appeal are reviewed for

plain error. United States v. Peters, 403 F.3d 1263, 1270 (11th Cir. 2005). Under

the plain error standard, a defendant must show (1) error, (2) that is plain, (3) that

affects substantial rights, and (4) that “seriously affect[s] the fairness, integrity, or

public reputation of judicial proceedings.” Id. at 1271 (quoting United States v.

Olano, 507 U.S. 725, 731, 113 S. Ct. 1770, 1776 (1993)).

       We have previously rejected both challenges to the facial constitutionality of

§ 922(g)(1) asserted by Pericles – that the statute fails to specifically define

commerce as “interstate or foreign commerce,” and that the statute does not require

that a felon’s possession of a firearm substantially affect interstate commerce. See,

e.g., United States v. Wright, 392 F.3d 1269, 1280 (11th Cir. 2004). Moreover, we

have continued to uphold the “minimal nexus” test, which provides that the



                                             2
interstate nexus requirement is met “once the government demonstrate[s] that the

gun had previously travelled in interstate commerce.” United States v. McAllister,

77 F.3d 387, 390 (11th Cir. 1996).

      Because we have previously held that § 922(g)(1) is not unconstitutional, we

reject Pericles’s contention that we should find it facially invalid. Moreover,

because, as discussed below, the government demonstrated that the firearm

possessed by Pericles previously traveled in interstate commerce, the statute is not

unconstitutional as applied to him.

                                          II.

      Pericles next argues that the government’s evidence was insufficient to

establish the required interstate nexus to convict him under § 922(g)(1).

      We review de novo the district court’s denial of a motion for judgment of

acquittal, “viewing the evidence in the light most favorable to the government and

drawing all reasonable inferences and credibility choices in favor of the jury’s

verdict.” United States v. Tampas, 493 F.3d 1291, 1297-98 (11th Cir. 2007)

(internal quotation marks omitted). “The jury is free to choose among alternative

reasonable interpretations of the evidence and the government’s proof need not

exclude every reasonable hypothesis of innocence.” Id. at 1298 (internal citations

and quotation marks omitted). We will affirm “if a reasonable juror could have



                                          3
concluded that the evidence established [the defendant’s] guilt beyond a reasonable

doubt.” Id.

      To convict under 18 U.S.C. § 922(g)(1), the government must prove the

following three elements beyond a reasonable doubt: (1) the defendant has been

convicted of a crime punishable by imprisonment for a term exceeding one year,

and (2) the defendant knowingly possessed a firearm or ammunition, (3) in or

affecting interstate commerce. United States v. Funches, 135 F.3d 1405, 1406-07

(11th Cir. 1998). For purposes of § 922(g)(1), a firearm is “(A) any weapon . . .

which will or is designed to or may readily be converted to expel a projectile by the

action of an explosive; (B) the frame or receiver of any such weapon; (C) any

firearm muffler or firearm silencer; or (D) any destructive device.” 18 U.S.C.

§ 921(a)(3).

      Here the defendant was charged with the possession of four firearms as well

as quantities of four types of ammunition. The jurisdictional element may be

satisfied by proof that a firearm or ammunition traveled in interstate commerce.

United States v. McAllister, 77 F.3d at 390. Generally, expert testimony that the

firearm traveled in interstate commerce is sufficient. See United States v. Scott,

263 F.3d 1270, 1274 (11th Cir. 2001) (noting that the prosecutor established the

required interstate nexus through expert testimony that the firearm was



                                          4
manufactured in another state and had moved in interstate commerce).

      Although direct evidence of movement in interstate commerce, such as

tracing the firearm’s serial number, may be the best evidence of movement in

interstate commerce, the government is not required to present this type of

evidence. See United States v. Clay, 355 F.3d 1281, 1287 (11th Cir. 2004). In

Clay, we held that the evidence was sufficient to meet the jurisdictional

requirement of § 922(g)(1), even without expert testimony, because the firearm had

the inscription “Colt Manufacturing Company, Hartford, CT,” and the firearm was

seized in Georgia. Id. Moreover, a “firearms expert may testify – based on his

examination of the weapons in question and his consultation of reference books –

about where the particular weapons had been manufactured, to establish the

required interstate nexus.” United States v. Floyd, 281 F.3d 1346, 1349 (11th Cir.

2002) (citation omitted) (rejecting a hearsay challenge to the admissibility of

firearm expert’s opinion).

      We conclude from the record that there was sufficient evidence to establish

that the firearms and ammunition traveled in interstate commerce because the

government presented testimony that they had been manufactured either in foreign

countries or in states other than Florida, where Pericles was arrested.

                                         III.



                                           5
      Pericles argues that the district court erred in denying his motion for a new

trial challenging the court’s earlier ruling excluding any reference to a robbery that

allegedly occurred prior to the officers arriving at Pericles’s home. He contends

that the exclusion deprived him of a meaningful opportunity to present a complete

defense in violation of his constitutional rights. In his motion, he also submitted

the results of a polygraph examination in order to convince the court that he had a

viable third party guilt defense. (Id.).

      We review the denial of a motion for a new trial for abuse of discretion.

United States v. Lee, 68 F.3d 1267, 1273 (11th Cir. 1995). “The trial court is

vested with broad discretion in ruling upon the relevancy and admissibility of

evidence.” United States v. Anderson, 872 F.2d 1508, 1515 (11th Cir. 1989).

When reviewing for abuse of discretion, we will affirm unless we find that “the

district court has made a clear error of judgment, or has applied the wrong legal

standard.” United States v. Lyons, 403 F.3d 1248, 1255 (11th Cir. 2005) (internal

quotation marks omitted). Moreover, “[a]n evidentiary ruling will stand unless the

complaining party has shown a substantial prejudicial effect.” United States v.

Breitweiser, 357 F.3d 1249, 1254 (11th Cir. 2004) (internal quotation marks

omitted). Finally, we will not reverse an erroneous evidentiary ruling if the

resulting error was harmless. United States v. Dickerson, 248 F.3d 1036, 1048



                                           6
(11th Cir. 2001). An error is harmless if it “had no substantial influence on the

outcome and sufficient evidence uninfected by error supports the verdict.” Id.

(internal quotation marks omitted).

      The Supreme Court has held that the constitution guarantees criminal

defendants “a meaningful opportunity to present a complete defense.” Holmes v.

South Carolina, 547 U.S. 319, 324, 126 S. Ct. 1727, 1731 (2006) (internal

quotation marks omitted). A relevant factual basis for the defense must exist under

Federal Rules of Evidence 401 and 402. United States v. Thompson, 25 F.3d 1558,

1564 (11th Cir. 1994). Federal Rule of Evidence 402 provides that only relevant

evidence is admissible. Fed.R.Evid. 402. “‘Relevant evidence’ [is] evidence

having any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence.” Fed.R.Evid. 401. Moreover, “well-established rules of

evidence permit trial judges to exclude evidence if its probative value is

outweighed by certain other factors such as unfair prejudice, confusion of the

issues, or potential to mislead the jury.” Holmes, 547 U.S. at 326, 126 S. Ct. at

1732 (citing Fed.R.Evid. 403).

      Additionally, “[m]otions for a new trial based on newly discovered evidence

are highly disfavored in the Eleventh Circuit and should be granted only with great



                                           7
caution. Indeed, the defendant bears the burden of justifying a new trial.” United

States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (en banc) (internal

quotation marks omitted). A new trial is warranted based upon circumstances

coming to light after trial only if the following five part test is satisfied: “(1) the

evidence was in fact discovered after trial; (2) the defendant exercised due care to

discover the evidence; (3) the evidence was not merely cumulative or impeaching;

(4) the evidence was material; and (5) the evidence was of such a nature that a new

trial would probably produce a new result.” United States v. Starrett, 55 F.3d

1525, 1554 (11th Cir. 1995) (internal quotation marks omitted). “Failure to meet

any one of these elements will defeat a motion for a new trial.” Id.

         We have restricted the use of polygraph evidence to only two contexts: (1)

when the parties stipulate in advance as to the test's circumstances and the scope of

its admissibility, or (2) “to impeach or corroborate the testimony of a witness at

trial.” United States v. Piccinonna, 885 F.2d 1529, 1535-36 (11th Cir.1989) (en

banc).

         We conclude from the record that the district court did not abuse its

discretion by denying Pericles's motion for a new trial because (1) any error in

excluding evidence relating to an alleged robbery that occurred prior to an officer

observing Pericles in possession of the firearms and ammunition was harmless, and



                                             8
(2) the results of Pericles's post-trial polygraph examination did not meet the test

for newly discovered evidence.

                                              IV.

      Pericles argues that it is improper for the government to argue that the jury

must find that an officer is lying in order to acquit the defendant, and that it is

improper for the prosecutor to vouch for an officer’s credibility by arguing that

they would not lie on the stand. The use of these improper techniques cannot be

justified as a response to defense tactics.

      We review allegations of prosecutorial misconduct de novo because it is a

mixed question of law and fact. United States v. Eckhardt, 466 F.3d 938, 947

(11th Cir. 2006). We assess whether the challenged comments were improper, and

if so, whether they affected the substantial rights of the defendant. Id. “A

defendant’s substantial rights are prejudicially affected when a reasonable

probability arises that, but for the remarks, the outcome of the trial would have

been different.” Id. (citation omitted). However, if “the record contains sufficient

independent evidence of guilt, any error is harmless.” Id.

      We examine the prosecutor’s comments “in the context of the entire trial and

in light of any curative instructions.” United States v. Wilson, 149 F.3d 1298, 1301

(11th Cir. 1998) (internal quotation marks omitted). Accordingly, to reverse on the



                                               9
basis of prosecutorial misconduct, “the misconduct must be so pronounced and

persistent that it permeates the entire atmosphere of the trial.” United States v.

Herring, 955 F.2d 703, 710 (11th Cir. 1992) (internal quotation marks omitted).

      A prosecutor may not personally vouch for the credibility of a witness.

United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir. 1991). The prohibition

against improper vouching, however, does not preclude prosecutors from arguing

about credibility. Id. at 1207. “[R]ather, it forbids arguing credibility based on the

reputation of the government office or on evidence not before the jury.” United

States v. Hernandez, 921 F.2d 1569, 1573 (11th Cir. 1991) (citation omitted).

Therefore, the prosecutor may “argue that the fair inference from the facts

presented is that a witness had no reason to lie.” Id. (internal quotation marks

omitted). Additionally, this Court has “recognized an exception to this prohibition,

the so-called ‘fair response’ rule, that entitles a prosecutor to respond to arguments

advanced by defense counsel in his or her statement to the jury.” United States v.

Lopez, 590 F.3d 1238, 1256 (11th Cir. 2009) (internal quotation marks omitted).

      Here, we conclude from the record that the prosecutor’s comments during

the redirect examination did not constitute improper vouching. First, the

challenged comments by the prosecutor were all made in her rebuttal argument and

in response to Pericles’s suggestion. Second, she was permissibly arguing that it



                                          10
could be inferred from the facts presented that the witness had no reason to lie.

Moreover, even if the comments were improper, we conclude they did not affect

Pericles’s substantial rights because the court twice instructed the jury that attorney

statements were not evidence and that it was up to the jury to determine whether to

believe each witness’s testimony.

                                          V.

      Pericles argues that his sentence was procedurally unreasonable because the

district court erred by calculating Pericles’s base offense level as 26 pursuant to

U.S.S.G. § 2K2.1(a)(1) and by imposing a four-level enhancement pursuant to

U.S.S.G. § 2K2.1(b)(4) for obliterated serial numbers on the weapons. Pericles

argues that the district court should not have applied these enhancements because

(1) there was no evidence supporting the enhancements presented at trial, (2) with

respect to the § 2K2.1(b)(4) enhancement, the issue was not raised in any

objections to the PSI, and (3) the sentencing testimony was based on hearsay,

which violated his Confrontation Clause rights.

      When reviewing the sentence imposed, we must first “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



                                          11
erroneous facts, or failing to adequately explain the chosen sentence.” Gall v.

United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007).

      We review a district court’s application and interpretation of the Guidelines

de novo, and its factual findings for clear error. United States v. Rhind, 289 F.3d

690, 693 (11th Cir. 2002). “For a factual finding to be clearly erroneous, this

court, after reviewing all of the evidence, must be left with a definite and firm

conviction that a mistake has been committed.” United States v. Rodriguez-Lopez,

363 F.3d 1134, 1137 (11th Cir. 2004) (internal quotations marks omitted).

          “The findings of fact of the sentencing court may be based on evidence

heard during trial, facts admitted by a defendant’s plea of guilty, undisputed

statements in the presentence report, or evidence presented at the sentencing

hearing.” United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989); see also

United States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir. 2005) (holding that

extra-verdict enhancements used “in a non-mandatory guidelines system [are]

constitutionally permissible”). Moreover, the “right to confrontation is not a

sentencing right.” United States v. Cantellano, 430 F.3d 1142, 1146 (11th Cir.

2005) (holding that Crawford1 does not extend to non-capital sentencing).

Therefore, the court may use “reliable hearsay at sentencing.” Id.



      1
          Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004).

                                               12
      The Federal Rules of Criminal Procedure provide that “[w]ithin 14 days

after receiving the presentence report, the parties must state in writing any

objections, including objections to material information, sentencing guideline

ranges, and policy statements contained in or omitted from the report.”

Fed.R.Crim.P. 32(f)(1). However, “[a]t sentencing, the court . . . may, for good

cause, allow a party to make a new objection at any time before sentence is

imposed.” Fed.R.Crim.P. 32(i)(1)(D).

      Under the Sentencing Guidelines, the base offense level for possession of a

firearm by a convicted felon is 26 if the offense involved a “semiautomatic firearm

that is capable of accepting a large capacity magazine” and the “defendant

committed any part of the instant offense subsequent to sustaining at least two

felony convictions of either a crime of violence or a controlled substance offense.”

U.S.S.G. § 2K2.1(a)(1). However, the base offense level is only 24 if the offense

did not involve a semiautomatic firearm capable of accepting a large capacity

magazine. U.S.S.G. § 2K2.1(a)(2). The guideline commentary clarifies that a

“semiautomatic firearm capable of accepting a large capacity magazine” means a

      firearm that has the ability to fire many rounds without reloading
      because at the time of the offense (A) the firearm had attached to it a
      magazine or similar device that could accept more than 15 rounds of
      ammunition; or (B) a magazine or similar device that could accept
      more than 15 rounds of ammunition was in close proximity to the
      firearm.

                                          13
U.S.S.G. § 2K2.1, comment. (n.2). Moreover, the sentencing level is increased by

four levels if any of the firearms involved had an altered or obliterated serial

number. U.S.S.G. § 2K2.1(b)(4)(B).

      We conclude from the record that the district court did not impose a

procedurally unreasonable sentence. First, the district court was free to consider

any sufficiently reliable information during the sentencing hearing, including

hearsay statements. Second, we conclude there was no Confrontation Clause

violation because the right to confrontation is a trial right that does not apply to a

non-capital sentencing hearing. Third, we conclude it was not error for the district

court to consider evidence presented at the sentencing hearing when making its

factual findings. Finally, we conclude the district court did not abuse its discretion

by allowing the government to raise a new objection to the PSI at the sentencing

hearing.

                                           VI.

      Pericles argues that the sentence imposed by the district court is

substantively unreasonable because the district court did not take into account all

of the § 3553(a) factors or the totality of the circumstances. Specifically, the

district court failed to seriously consider the results of the polygraph examination,

which supported his defense that he was innocent.



                                           14
      We review the final sentence imposed by the district court for

reasonableness. United States v. Williams, 526 F.3d 1312, 1321 (11th Cir. 2008).

The Supreme Court has clarified that the reasonableness standard means review for

abuse of discretion. Gall, 552 U.S. at 46, 128 S. Ct. at 594. “[T]he burden of

establishing that the sentence is unreasonable in light of the record and the

§ 3553(a) factors lies with the party challenging the sentence.” Williams, 526 F.3d

at 1322.

      Pericles has not shown that the sentence imposed by the district court, which

reflected a downward variance from the statutory maximum of 120 months to 96

months, was substantively unreasonable. While Pericles argues on appeal that the

district court should have given more weight to the exculpatory polygraph

examination results, the relative weight the district court afforded to each factor is

entitled to deference. Williams, 526 F.3d at 1322. Therefore, we affirm Pericles’s

conviction and sentence.

      AFFIRMED.




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