                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-21-2008

USA v. Boone
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2860




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"USA v. Boone" (2008). 2008 Decisions. Paper 344.
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                                                        NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT



                                       No. 07-2860


                           UNITED STATES OF AMERICA

                                            v.

                                   CALEEM BOONE,
                                          Appellant


                     Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                            (D.C. Criminal No. 06-cr-00475)
                    District Judge: Honorable Mary A. McLaughlin


                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 11, 2008

                  Before: McKEE, SMITH and WEIS, Circuit Judges

                                (Filed: October 21, 2008)


                              OPINION OF THE COURT



MCKEE, Circuit Judge.

     Caleem Boone appeals his conviction and the sentence that was imposed after he

was found guilty of possession of cocaine base with intent to distribute, possession of a
firearm in furtherance of a drug trafficking offense, and possession of a firearm by a

convicted felon in violation of 21 U.S.C. § 841(a)(1), and 18 U.S.C. §§ 922(g)(1), and

924 (c)(1)(A) and. For the reasons that follow, we will affirm.

                                               I.

        Since we write primarily for the parties, who are familiar with this case, we need

not recite the factual or procedural history in detail.      Boone argues that his conviction

should be vacated because of the prosecutor’s closing argument, and because the district

court erred in assessing criminal history points for a juvenile probation in 2000.

                                               A.

       Since Boone did not object to the prosecutor’s closing, we review for plain error.

In order to show plain error, Boone must show: (1) error, (2) that is plain, and (3) affects

substantial rights. If all three conditions are met, we may exercise our discretion to

address the error if, (4) the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings. Johnson v. United States, 520 U.S. 461, 467 (1997)

Error is plain when it is clear or obvious. Error affects substantial rights of the accused if

it affected the outcome of the trial.

       Boone’s intent was the central issue at trial. During the trial, the district court

repeatedly instructed the prosecutor not to elicit testimony about that ultimate issue. See

Fed.R. Evid. 704(b) (“No expert witness testifying with respect to the mental state or

condition of a defendant in a criminal case may state an opinion or inference as to

whether the defendant did or did not have the mental state or condition constituting an

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element of the crime charged or of a defense thereto. Such ultimate issues are matters for

the trier of fact alone.”).

       Detective Palmer was called as a witness for the prosecution and testified that

Boone did not possess the drugs in question in a manner that was consistent with personal

use. In referring to that testimony during the closing argument, the prosecutor

told the jury that the government’s expert had testified that “these [drugs] were

possessed with intent to deliver.” Boone argues that the prosecutor’s closing constituted

plain error and that the statement was sufficiently prejudicial to require a new trial. The

government maintains that the prosecutor was merely summarizing Detective Palmer’s

testimony.

       Although we agree that the prosecutor’s closing could have been more carefully

worded, the record simply does not support a finding that that single statement was so

egregious as to affect the outcome of the proceedings. See United States v. Olano, 507

U.S. 725, 734-35 (1993).

       The statement constituted only a single sentence in a lengthy closing, and trial

counsel did not think it sufficiently egregious to warrant an objection at the time. See

United States v. Sacony-Vacuum Oil Co., 310 U.S. 150, 238 (1940) (“[c]ounsel for the

defense cannot as a rule remain silent, interpose no objections, and after a verdict has

been returned seize for the first time on the point that the comments to the jury were

improper and prejudicial.”).




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       Moreover, the district court explicitly informed the jury that the closing arguments

were not to be considered as evidence. “Our theory of trial relies upon the ability of a

jury to follow instructions.” United States v. Newby, 11 F.3d 1143, 1147 (3d cir. 1993).

Accordingly, Boone cannot satisfy his burden of showing that the prosecutor’s comments

during closing argument amounted to plain error.

                                            B.

       Boone also argues that the district court erred in factoring his juvenile offenses

into the Guideline calculation. He claims that the record does not establish a sentence of

confinement for the juvenile transgressions. However, since Boone did not contest the

PSR’s conclusions when asked if he had any objection, the sentencing court was entitled

to accept the factual conclusions in the PSR as established fact. See Fed. R. Crim. P.

32(i)(3)(A). See also, United States v. Iglesias, 535 F.3d 150 (3d Cir. 2008); and United

States v. Siegel, 477 F.3d 87 (3d Cir. 2008). Accordingly, any challenge to the trial

court’s reliance on the juvenile convictions has been waived.

                                      II. Conclusion

       For the reasons noted above, we will affirm the judgment of conviction and

sentence.




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