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                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-15622
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 5:12-cr-00026-RS-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

JEFFREY MONROE ROY,

                                                          Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Northern District of Florida
                     ________________________

                            (September 24, 2014)

Before TJOFLAT, WILSON and ROSENBAUM , Circuit Judges.

PER CURIAM:
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      A jury found Jeffrey Monroe Roy guilty of using a facility and means of

interstate commerce to entice a minor to engage in sexual activity, in violation of

18 U.S.C. § 2422(b), and traveling in interstate commerce with the purpose to

engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b), and the

District Court sentenced him to concurrent prison terms of 188 months. Roy

appeals his convictions and sentences. He challenges his convictions, and seeks a

new trial, on the ground that the District Court should have granted his motion for

a mistrial because the prosecutor, in opening statement, and a government witness

commented on his post-Miranda 1 silence, in violation of Doyle v. Ohio, 426 U.S.

610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). Roy challenges his sentences on the

ground that, in calculating his total offense level pursuant to U.S. Sentencing

Guidelines Manual [hereinafter U.S.S.G.] § 3C1.1, the District Court erred in

imposing a two-level obstruction of justice enhancement. Having carefully

considered Roy’s arguments, we affirm his convictions and sentences. We address

first the motion-for-mistrial issue.

                                                I.

      Immediately before the trial began, the court met with counsel for the parties

in its conference room to go over some of the Government’s exhibits, most of




      1
          Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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which defense counsel stipulated were admissible. When the court inquired

whether there were any “particular problems on the horizon,” the prosecutor said,

      [PROSECUTOR]: No, no, sir. The only thing I would
      somewhat bring your attention to, my understanding is at this
      point the Defendant does expect -- or is expected to testify. He
      does have two prior convictions, two prior felony convictions
      from 1986. One is for kidnapping and one is for an assault. He
      was released from prison on those convictions in about 2006. I
      do not plan to bring them in as 404(b), but I just want to make
      the Court aware of them, should he open the door when he
      takes the stand for impeachment purposes of his prior
      convictions.

      The court then said, “[b]ut if he testifies, it's -- you know, that's ---.” And, in

response, defense counsel said, “he’s fair game.” After the court repeated the

words “fair game,” defense counsel volunteered, “[a]nd he may change his mind

during the trial, Judge, I mean, you just never know.”

      During the prosecutor’s opening statement, she stated, in part, the following:

      And when he's done and when he's sitting in a room
      with Sergeant Daffin and he’s confronted about why he’s been
      arrested and he’s told what the charge is, he gets caught in
      several lies. He says, “Child? What child? I wasn't coming
      over here to meet with a child. I was coming over here to meet
      with a 30-year-old woman."

      You’ll see in the evidence Jaz and Alex mentioned
      Jaz’s age on multiple occasions, and at one point the Defendant
      himself recognizes her age.

      He also -- when Sergeant Daffin tells him, “No, no,
      she wasn’t 30, she was a child,” he said, “Oh, oh, wait, wait,
      well, I couldn't really hear. We were having some phone
      troubles.”
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       And when Sergeant Daffin says, “Uh-Uh, that’s not
       going to cut it, Mr. Roy, I’ve listened to those phone calls and
       they’re clear as day” -- and you're going to hear them, and they
       are clear as day -- at that point Mr. Roy hangs his head and
       says, “I don’t want to make a statement anymore. I’m done.”

Defense counsel objected on the ground that the prosecutor had improperly

commented on his right to remain silent, but he requested neither a mistrial nor a

cautionary instruction. 2

       Roy argues that the Constitution—specifically, the Fifth Amendment’s Due

Process Clause—required the court to grant a mistrial. Generally, we review

issues of constitutional law de novo. United States v. O’Keefe, 461 F.3d 1338,

1346 (11th Cir. 2006). We review for abuse of discretion a district court’s refusal

to grant a mistrial based on a comment regarding the defendant’s right to remain

silent. United States v. Reeves, 742 F.3d 487, 504 (11th Cir. 2014).

Abuse-of-discretion review grants the district court a range of choice. We will not

find an abuse even if we would have ruled to the contrary, so long as the district




       2
         Defense counsel moved for a mistrial after Sergeant Jason Daffin testified in the
prosecution’s case in chief. Regarding the post-arrest interrogation of Roy, Daffin said:

           There was one thing I brought up. When he was talking about meeting a 30-
           year-old female, I basically advised him it didn’t make sense for him to be
           asking a 30-year-old female to send nude photographs from the neck down, at
           which time he dropped his head and that ceased the conversation.

The court denied counsel’s motion and, instead, gave the jury an appropriate curative instruction.
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court did not commit a clear error in judgment. United States v. Drury, 396 F.3d

1303, 1315 (11th Cir. 2005).

      In Doyle, the Supreme Court held that the use of a defendant’s silence at the

time of his arrest for impeachment purposes violates due process because Miranda

warnings carry an implicit assurance that silence will carry no penalty. See Reeves,

742 F.3d at 504. Specifically, the prosecutor cannot comment on the defendant’s

post-Miranda silence to impeach exculpatory testimony on the ground that the

defendant did not explain his conduct at the time of his arrest. United States v.

Dodd, 111 F.3d 867, 869 (11th Cir. 1997). However, a “single comment alone”

does not necessarily constitute a Doyle violation where the Government does not

attempt to use the improper comment to impeach the defendant. United States v.

Stubbs, 944 F.2d 828, 835 (11th Cir. 1991). Moreover, where a defendant testifies

in contradiction with his post-arrest statement, the prosecutor is entitled to

challenge the defendant with that statement and to elicit for the jury whether the

defendant terminated that statement. Lofton v. Wainwright, 620 F.2d 74, 77–78

(5th Cir. 1980) (habeas context).

      Doyle errors are reviewed for harmless error. O’Keefe, 461 F.3d at 1346. A

Doyle violation is harmless where the error has “no substantial and injurious effect

or influence in determining the jury’s verdict.” See Reeves, 742 F.3d at 504

(quotation marks omitted). Such an error may be especially harmless where, as


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here, the prosecutor makes no further attempt to discuss the defendant having

exercised his right to remain silent. Id. The court’s use of a curative jury

instruction and the weight of the evidence of guilt may also render a Doyle error

harmless. United States v. Suggs, 755 F.2d 1538, 1541 (11th Cir. 1985).

         We find that the prosecutor technically erred under Doyle. Both her opening

statement and the interviewing officer’s testimony made reference to the fact that

the post-arrest interview stopped due to Roy’s conduct, and both references were

made before he testified. The opening statement in particular was against the spirit

of Doyle, since, as the Government points out, Roy stopped talking immediately

following an allegation that his phone calls with an undercover officer had been

recorded. The opening thus implied that Roy’s silence was a tacit admission of

guilt.

         However, the Doyle error was harmless. The first reason that the error was

harmless is that there was overwhelming evidence of Roy’s guilt. Police recorded

all of Roy’s telephone and e-mail communications with “Jaz,” the persona

assumed by an undercover officer. Those communications included Roy’s

repeated requests for pictures of “Jaz,” who he had been told was “almost

fourteen,” from the neck down, and explicit telephone conversations, in which Roy

discussed what sex acts he wanted to engage in with “Jaz.” Further, when arrested,

Roy had condoms, Viagra, handcuffs, and a set of cards depicting sexual positions


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in his truck. The error was also harmless because the prosecutor made no further

mention of Roy’s silence, and the court instructed the jury both that the lawyers’

statements should not be considered evidence and that it should not draw any

inference of guilt from Roy’s failure to talk with police.

                                          II.

      We review de novo the district court’s application of the Sentencing

Guidelines. United States v. Foley, 508 F.3d 627, 632 (11th Cir. 2007). We

review for clear error the findings of fact supporting the court’s application of a

particular guideline, including the obstruction of justice enhancement guideline,

U.S.S.G. § 3C1.1. United States v. Williams, 627 F.3d 839, 845 (11th Cir. 2010).

      The Guidelines provide for a two-level enhancement where a defendant

“willfully obstructed or impeded . . . the administration of justice with respect to

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

and where the obstructive conduct related to the offense of conviction. U.S.S.G.

§ 3C1.1. Perjury involves deliberately false testimony concerning a material

matter, not false testimony caused by confusion or mistake. Id. § 3C1.1, comment.

(n. 4(B)); see also Williams, 627 F.3d at 845.

      To ensure that it does not impose an obstruction enhancement reflexively

after the defendant has testified and has been found guilty, a district court must

find the facts necessary to establish the elements of perjury. United States v.


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Dunnigan, 507 U.S. 87, 96–97, 113 S. Ct. 1111, 1118, 122 L. Ed. 2d 445 (1993).

At sentencing, after the court finds that the defendant committed perjury, if the

defendant believes that the findings of fact on which it has found perjury are

inadequate, he must say so; otherwise, he cannot argue on appeal that the findings

were inadequate. United States v. Gregg, 179 F.3d 1312, 1317 (11th Cir. 1999).

Roy failed to request that the court make more detailed findings in support of its

finding of perjury; his challenge to the enhancement—on the ground that the fact

findings supporting it were inadequate—fails. See Gregg, 179 F.3d at 1317.

      Nevertheless, Roy preserved for appeal the argument that the court erred in

imposing the obstruction of justice enhancement. We find no error. Roy raised a

Good Samaritan defense and testified that he had no intention of having sex with a

child. His testimony was belied by evidence that, over the telephone, after having

learned that “Jaz” was a child, he discussed whether she would partake in specific

sex acts with him. He told her that he “want[ed] to do it a lot.” He also testified

that the condoms in his truck were not his. But he told “Jaz” that he had “stuff to

be safe with” to prevent her from getting pregnant. In sum, we find no error in the

court’s application of the enhancement.

      AFFIRMED.




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