                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                     FILED
                        ________________________          U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                               AUGUST 28, 2007
                               No. 05-16493                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                     D. C. Docket No. 05-20487-CR-PCH

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

JOSE GARCIA-FRIAS,

                                                           Defendant-Appellant.


                         ________________________

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

                              (August 28, 2007)

Before DUBINA, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

     Jose Garcia-Frias appeals his conviction and sentence for 62 months of
imprisonment for conspiracy to possess with intent to distribute heroin, 21 U.S.C.

§ 846, and attempt to possess with intent to distribute heroin, 21 U.S.C. § 846.

Garcia-Frias presents three arguments in this appeal, each for the first time. First,

Garcia-Frias argues that he is entitled to a new trial because of statements the

prosecutor made during closing argument. Second, he argues that the district court

erred when it sentenced him for both conspiracy and attempt because the

convictions arose out of a single course of conduct. Third, he argues that the jury

instructions violated Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348

(2000). We affirm.

       Garcia-Frias first argues that the prosecutor’s suggestion during closing

rebuttal that the jury was being “duped” constituted a personal attack on his

counsel and entitles him to a new trial. The government argues that the

prosecutor’s comments were not a personal attack but a response to the repeated

arguments of defense counsel that the government “duped” Garcia-Frias in

executing the drug bust. Because GarciaFrias did not object to the statements of

the prosecutor, we review for plain error. See United States v. Arias-Izquierdo,

449 F.3d 1168, 1185 n.8 (11th Cir. 2006). We will reverse only if there is (1) error

that is (2) plain, (3) affects substantial rights, and (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings. United States v. Martinez,



                                             2
407 F.3d 1170, 1173 (11th Cir. 2005).

      Garcia-Frias cannot establish plain error. “A reversal is warranted when

prosecutorial misconduct was so pronounced and persistent that it permeated the

entire atmosphere of the trial.” United States v. Mueller, 74 F.3d 1152, 1157 (11th

Cir. 1996). It is not clear that the comments of the prosecutor were a personal

attack on defense counsel, and the comments did not affect the substantial rights of

Garcia-Frias. The district court twice instructed the jury that the arguments of

counsel were not evidence and the verdict of the jury had to be based on the

evidence. United States v. Bailey, 123 F.3d 1381, 1402 (11th Cir. 1997). We

cannot say, however, that the comments reached the level of plain error.

      Garcia-Frias next argues that, although he can be convicted of both

conspiracy and attempt, 21 U.S.C. § 846, he cannot be sentenced on both counts

because they arose out of a single course of conduct. Garcia-Frias’s argument is

foreclosed by our precedent in United States v. Cochran, 883 F.2d 1012, 1017–18

(11th Cir. 1989), in which we upheld the imposition of separate sentences for

conspiracy and attempt, even though they both arose from the same narcotics

transaction, because each offense requires proof of different facts. Garcia-Frias’s

argument, which we review for plain error because it was raised for the first time

on appeal, fails.



                                          3
      Finally, Garcia-Frias contends that the instruction to the jury that the

government need not prove that Garcia-Frias had knowledge of the quantity and

type of drugs involved “as long as he knew he was dealing with a controlled

substance,” violates the Sixth Amendment, under Apprendi v. New Jersey, 530

U.S. 466, 120 S. Ct. 2348 (2000). This argument fails. Garcia-Frias acknowledges

that the jury instruction was consistent with the law of this Circuit. See United

States v. Gomez, 905 F.2d 1513, 1514–15 (11th Cir. 1990); United States v. Mejia,

97 F.3d 1391, 1392–93 (11th Cir. 1996). Garcia-Frias raises the issue “purely for

purposes of preservation,” but we are bound by our precedents.

      Garcia-Frias’s conviction and sentence are

      AFFIRMED.




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