                                                                   [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                        JUNE 12, 2012
                                            No. 11-12337
                                        Non-Argument Calendar            JOHN LEY
                                                                          CLERK
                                      ________________________

                              D.C. Docket No. 1:10-cr-20613-KMM-6



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff - Appellee,

                                               versus

ALFREDO BARRETO,

llllllllllllllllllllllllllllllllllllllll                         Defendant - Appellant.

                                     ________________________

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

                                           (June 12, 2012)

Before BARKETT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
      Alfredo Barreto appeals his convictions and total sentence for conspiring to

possess with intent to distribute a controlled substance involving five or more

kilograms of cocaine and one or more kilograms of heroin, in violation of 21

U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(i)-(ii), and possessing with intent to

distribute five or more kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)

and 841(b)(1)(A)(ii). Barreto first appeals the district court denial of his motion

for mistrial because the prosecutor improperly commented on his right to remain

silent. Barreto also appeals his sentence as substantively unreasonable. After

reviewing the parties’ briefs and the records, we affirm.

                                          I.

      Barreto’s motion for a mistrial was based on his assertion that the

prosecutor violated his Fifth Amendment rights during closing arguments. The

prosecutor, in reference to Barreto, stated: “Why did he do it? Truly only he can

tell you. But you do know he has a gambling problem.” Barreto claims that the

statement made a direct reference to his failure to testify and it is error to comment

on the failure of the defendant to counter or explain evidence. Alternatively, a

jury would naturally and necessarily have understood the statement to be such a

comment. Further, Barrato alleges that the evidence against him was scant;

therefore, it is fair to presume that the prosecutor’s comment had an effect on the

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outcome of the trial.

      We review a district court’s denial of a motion for mistrial under the abuse-

of-discretion standard. United States v. Knowles, 66 F.3d 1146, 1162 (11th Cir.

1995). “The Fifth Amendment prohibits a prosecutor from commenting directly or

indirectly on a defendant’s failure to testify.” Id. A defendant’s right to remain

silent is violated by a prosecutor’s comment when either “(1) the statement was

manifestly intended to be a comment on the defendant’s failure to testify; or (2) the

statement was of such a character that a jury would naturally and necessarily take

it to be a comment on failure of the accused to testify.” Id. at 1162–63 (internal

quotation marks omitted). The defendant must prove that one of the criteria exists.

Id. at 1163. Furthermore, in determining the prosecutor’s motive and the impact

of the statement, we examine the prosecutor’s statement in context. Id.

      We reverse a defendant’s conviction because of prosecutorial misconduct

“only if, in the context of the entire trial and in light of any curative instruction,

the misconduct may have prejudiced the substantial rights of the accused.” United

States v. Cordoba-Mosquera, 212 F.3d 1194, 1198 (11th Cir. 2000) (per curiam).

However, an error is harmless if the “record contains sufficient independent

evidence of guilt.” United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006).

We give “considerable weight to the district court’s assessment of the prejudicial

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effect of the prosecutor’s remarks and conduct.” Cordoba-Mosquera, 212 F.3d at

1198.

        Here, there is no evidence that the prosecutor “manifestly intended” to

comment on the defendant’s failure to testify. However, considering the context

of the entire trial, and the fact that the comment occurred during closing argument,

there is a significant risk that the comment was “of such a character that a jury

would naturally and necessarily take it to be a comment on the failure of the

accused to testify.” Knowles, 66 F.3d at 1162-63. The comment occured at the

conclusion of the trial, during the prosecutor’s closing argument. At that critical

stage in the proceedings, the jury was in the process of evaluating the evidence

against the defendant, and such a comment clearly highlights the fact that the

defendant has not taken the stand. Any lingering doubt about the defendant’s guilt

at this stage is highly susceptible to influence by a prosecutor’s closing statements.

        Even if the comment violated Barreto’s constitutional rights, however, such

violations are analyzed in terms of whether “on the whole record before us, the

error. . . was harmless beyond a reasonable doubt.” United States v. Hasting, 461

U.S. 499, 510 (1983). Here, the jury was presented with testimony of four co-

conspirators, all of whom testified that at least one shipment of drugs was taken to

Barreto’s house and several who indicated that Barreto was a heroin dealer.

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      Finally, a prejudicial remark may also be rendered harmless by curative

instructions to the jury. United States v. Smith, 918 F.2d 1551, 1562 (11th Cir.

1990) (stating “[b]ecause statements and arguments of counsel are not evidence,

improper statements can be rectified by the district court’s instruction to the jury

that only evidence in the case be considered”). The district court gave a proper

curative instruction to the jury by stating that the comments of attorneys was not

evidence and that the jury should not consider a defendant’s choice not to testify.

We presume that a jury follows a district court’s instructions. United States v.

McGarity, 23 Fla. L. Weekly Fed. C 478, at *46 (11th Cir. 2012) (holding that

prosecutor eliciting testimony regarding defendant’s failure to testify was harmles

error and was “overridden by both the overwhelming evidence of the defendants’

guilt, and by the court’s subsequent jury instructions”). The district court

therefore did not abuse its discretion in declining to grant Barreto’s motion for a

mistrial.

                                          II.

      Barreto next argues that his total sentence of 235 months, at the low end of

the guideline range, is substantively unreasonable. He argues that he is entitled to

a downward variance from the Guidelines range. Specifically he contends that the

district court did not fully consider the age and nature of Barreto’s prior

                                          5
convictions or his medical history. Barreto argues that his past convictions for

gambling unreasonably raised his criminal history score to a category III. Instead,

he claims that his criminal history score should have been a category I, resulting in

total sentence of 188 to 210 months.

      We review the reasonableness of a sentence under a deferential abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591

(2007). In reviewing sentences for reasonableness, we first ensure that the district

court committed no significant procedural error, such as failing to calculate or

improperly calculating the guideline range, treating the guidelines as mandatory,

failing to consider the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence. Gall, 552

U.S. at 51, 128 S. Ct. at 597. If we conclude that the district court did not

procedurally err, we must consider the substantive reasonableness of the sentence

imposed based on the totality of the circumstances. United States v. Pugh, 515

F.3d 1179, 1189 (11th Cir. 2008). This review is deferential, requiring that we

determine “whether the sentence imposed by the district court fails to achieve the

purposes of sentencing as stated in section 3553(a).” United States v. Talley, 431

F.3d 784, 788 (11th Cir. 2005) (per curiam). We reverse only if “left with the

definite and firm conviction that the district court committed a clear error of

                                          6
judgment in weighing the § 3553(a) factors by arriving at a sentence that lies

outside the range of reasonable sentences dictated by the facts of the case.” Pugh,

515 F.3d at 1191 (internal quotation marks omitted).

       The district court must impose a sentence “sufficient, but not greater than

necessary to comply with the purposes” listed in the statute. 18 U.S.C. §

3553(a)(2). Although we do not automatically presume a sentence falling within

the guideline range is reasonable, we ordinarily expect such a sentence to be

reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). We may

“set aside a sentence only if we determine, after giving a full measure of deference

to the sentencing judge, that the sentence imposed truly is unreasonable.” United

States v. Irey, 612 F.3d 1160, 1191 (11th Cir. 2010) (en banc), cert. denied, 131 S.

Ct. 1813 (2011).

       Barreto’s sentence is procedurally reasonable because the sentencing court

properly calculated the guideline range,1 treated the guidelines as advisory,

considered the § 3553(a) factors, and explained the reason it imposed a sentence

within the guideline range. Barreto’s sentence is also substantively reasonable.

The court’s total sentence of 235 months was well below the statutory maximum


       1
         Barreto contends that his two convictions for gambling should not have been included in
the Guidelines calculations. However, both of the convictions occurred less than fifteen years
ago and therefore were properly included. See U.S. Sentencing Guidelines Manual § 4A1.2(e).

                                               7
sentence of life and within the Guideline range. The sentencing court properly

considered Barreto’s argument that he should receive a variance based on his

medical history and rejected it. Additionally, it was not error for the district court

to not mention Barreto’s prior convictions when he explained the sentence because

Barreto did not raise the issue. See Gall, 552 U.S. at 53–54, 128 S. Ct. at 599

(discussing that where a party fails to raise a specific issue, it is “not incumbent on

the District Judge to raise every conceivably relevant issue on his own initiative”).

Accordingly, Barreto’s sentence was reasonable.

      AFFIRMED.




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