           Case: 16-10571    Date Filed: 09/13/2017   Page: 1 of 6


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-10571
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 4:15-cr-00012-CDL-MSH-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

ARSENIO BRUNDIDGE,

                                                          Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Georgia
                     ________________________

                            (September 13, 2017)



Before MARCUS, WILSON and BLACK, Circuit Judges.

PER CURIAM:
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       Arsenio Brundidge appeals his convictions and total 235-month sentence for

possession of a firearm by a convicted felon and possession of cocaine, violations

of 18 U.S.C. §§ 922(g)(1) & 924(e)(1) and 21 U.S.C. § 844, respectively.

Brundidge asserts: (1) the Government’s statements during closing arguments were

improper and caused substantial prejudice; and (2) his prior conviction for Georgia

burglary did not qualify as a predicate offense under the Armed Career Criminal

Act (ACCA), 18 U.S.C. § 924(e). After review,1 we affirm.

                                     I. DISCUSSION

A. Prosecutorial misconduct

       “In determining whether there was prosecutorial misconduct, we examine

whether the prosecutor’s remarks were (1) improper and (2) prejudicially affected

the defendant’s substantial rights.” United States v. Azmat, 805 F.3d 1018, 1044

(11th Cir. 2015). “Prosecutorial misconduct must be considered in the context of

the entire trial, along with any curative instruction.” United States v. Lopez, 590

F.3d 1238, 1256 (11th Cir. 2009).

       “[A]lthough a prosecutor may not exceed the evidence presented at trial

during her closing argument, she may state conclusions drawn from the trial

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         We review Brundidge’s claim of prosecutorial misconduct for plain error because
Brundidge did not object to the Government’s closing arguments at trial. See United States v.
Azmat, 805 F.3d 1018, 1045 (11th Cir. 2015). We review for plain error when a defendant fails
to object to an ACCA enhancement before the district court. United States v. Jones, 743 F.3d
826, 828 (11th Cir. 2014). An error is “plain” if the asserted error is clear from the plain
meaning of a statute, constitutional provision, or from a holding of the Supreme Court or this
Court. United States v. Rodriguez, 627 F.3d 1372, 1381 (11th Cir. 2010).
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evidence.” United States v. Reeves, 742 F.3d 487, 505 (11th Cir. 2014). Thus, an

issue raised by a defendant during closing is fair game for the prosecution on

rebuttal. Id.; see also United States v. Bernal-Benitez, 594 F.3d 1303, 1315 (11th

Cir. 2010) (noting it is not improper for a prosecutor to mention the defendant has

the same subpoena powers as the government, particularly when done in response

to the prosecutor’s failure to call a specific witness).

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

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

defendant. Bernal-Benitez, 594 F.3d at 1315. However, the prosecutor may

comment on the failure of defense counsel, as opposed to the defendant, to counter

or explain evidence. See Bernal-Benitez, 594 F.3d at 1315 (holding the

prosecutor’s comment was merely a request the jury closely examine the record for

support of defense counsel’s attacks).

      Brundidge does not establish the Government’s statements during closing

arguments constitute plain error. The Government’s statement that Deputy Powell

previously knew Brundidge was not calculated to mislead or inflame the jury’s

passions. See Azmat, 805 F.3d at 1045 (“A prosecutor’s remarks, suggestions,

insinuations, and assertions are improper when they are calculated to mislead or

inflame the jury’s passions.”). Further, the Government was allowed to rebut

defense counsel’s argument on this issue. See Reeves, 742 F.3d at 505 (“[T]he


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prosecutor, as an advocate, is entitled to make a fair response to the arguments of

defense counsel.”).

      The Government also did not shift the burden of proof in addressing defense

counsel’s arguments on Deputy Powell’s credibility. The Government was

allowed to respond to defense counsel’s arguments on this issue. Id. Moreover,

the Government may request the jury closely examine the evidence for support of

defense counsel’s attacks. Bernal-Benitez, 594 F.3d at 1315. And the court cured

any undue prejudice by explaining the Government’s burden of proof in its jury

instructions. See id. (concluding the court, following closing argument, cured any

undue prejudice in its instruction on the government’s burden of proof).

      Although the Government speculated whether Brundidge stole the firearm,

the court quickly provided a curative instruction, stating the jury should not

speculate about that issue because it was not an issue in the case. We presume the

jury followed the district court’s curative instruction. Lopez, 590 F.3d at 1256.

Under a plain error standard of review, it is not plain the Government’s statement

was incurable. See United States v. Rodriguez, 627 F.3d 1372, 1381 (11th Cir.

2010).

      Brundidge does not establish the cumulative effects of the alleged errors

denied him a fair trial. See Lopez, 590 F.3d at 1258 (stating in addressing a claim

of cumulative error, we examine the trial as a whole to determine whether the


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defendant was afforded a fundamentally fair trial). Brundidge did not establish

plain error from the Government’s closing arguments, and there can be no

cumulative error where there are no individual errors. See Azmat, 805 F.3d at

1045. Thus, his convictions are affirmed.

B. ACCA

      At the time of Brundidge’s conviction in 2010, Georgia’s burglary statute

provided:

      A person commits the offense of burglary when, without authority and
      with the intent to commit a felony or theft therein, he enters or
      remains within the dwelling house of another or any building, vehicle,
      railroad car, watercraft, or other such structure designed for use as the
      dwelling of another or enters or remains within any other building,
      railroad car, aircraft, or any room or any part thereof . . . .

United States v. Gundy, 842 F.3d 1156, 1164 (11th Cir. 2016) (citing Ga. Code

Ann. § 16-7-1(a) (2011)). In Gundy, we held the Georgia statute was divisible, and

applying the modified categorical approach, we determined the defendant’s

burglary convictions qualified as ACCA predicate offenses because the

indictments charged that he burgled one dwelling house and two business houses.

Id. at 1168-69.

      The district court did not plainly err in counting Brundidge’s Georgia

burglary conviction as an ACCA predicate offense. We have held the statute is

divisible and the offense qualifies as an ACCA predicate offense under the

modified categorical approach. Gundy, 842 F.3d at 1168-69. Brundidge does not
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cite a contrary holding, as required under plain error review. See Rodriguez, 627

F.3d at 1381. Moreover, a court may rely on undisputed facts contained in the

presentence investigation report (PSI) in applying the modified categorical

approach. See United States v. Ramirez-Flores, 743 F.3d 816, 820 & n.3 (11th

Cir. 2014) (stating courts may consider undisputed facts contained in the PSI in

applying the modified categorical approach). Thus, we affirm Brundidge’s total

sentence.

                                II. CONCLUSION

      Brundidge did not establish plain error from the Government’s closing

arguments or in counting his prior conviction for burglary as a predicate offense

under the ACCA. Thus, we affirm his convictions and total sentence.

      AFFIRMED.




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