                          NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 20a0058n.06

                                       Case No. 19-3111

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                  FILED
                                                                            Jan 28, 2020
UNITED STATES OF AMERICA,                          )                    DEBORAH S. HUNT, Clerk
                                                   )
       Plaintiff-Appellee,                         )
                                                   )       ON APPEAL FROM THE UNITED
v.                                                 )       STATES DISTRICT COURT FOR
                                                   )       THE NORTHERN DISTRICT OF
JOHN CHAPPLE,                                      )       OHIO
                                                   )
       Defendant-Appellant.                        )

____________________________________/

Before: GUY, SUTTON, and GRIFFIN, Circuit Judges.

       RALPH B. GUY, JR., Circuit Judge. A jury convicted defendant John Chapple of being

a felon in possession of a firearm. He now appeals, alleging constitutional violations and seeking

a new trial. We affirm.

                                      I. BACKGROUND

       John Chapple endured an exceptionally difficult life almost from the beginning.

Consequently, it seems, that life quickly became one of crime. Chapple committed burglary at the

age of twelve, assault at fourteen, aggravated robbery at fifteen, possession of crack cocaine at

sixteen, and kidnapping with a firearm at seventeen. A few months after his eighteenth birthday,

Chapple was sentenced to thirteen years in prison, stemming from a recent crime spree.
Case No. 19-3111, United States v. Chapple


        A little over twelve years later, he was released on parole, which came with conditions.

Among other things, he was required to wear an electronic ankle monitor and charge it each day.

His parole officer, Nicole Leligdon, was also allowed to conduct unannounced home visits. And

as a convicted felon, Chapple could not possess a firearm.

        Leligdon conducted a home visit on May 10, 2018, accompanied by “between eight and

ten” law enforcement officers.      The contingent arrived just as Chapple and a friend were

approaching his home. Chapple was carrying some bags and casually greeted Leligdon when he

saw her. She told him why they were there and then had him handcuffed and his bags searched.

One of the bags contained the charger for Chapple’s ankle monitor along with a handgun.

According to the officers, when Chapple was asked about the gun, he said it was his, and that he

used it for protection.

        A month later, a federal grand jury indicted him for being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g)(1). He pleaded not guilty and went to trial two months later.

The jury convicted him, and the court sentenced him to fifteen years in prison. He timely appealed.

                                         II. DISCUSSION

                                       A. Appointed Counsel

        Chapple’s first argument is about what happened at his arraignment. The Rules of Criminal

Procedure require the United States to take an arrested person before a magistrate judge without

unnecessary delay, and when the charge is a felony, the judge must inform the defendant at that

time of his right to retain counsel. Fed. R. Crim. P. 5(a)(1); 5(d)(1)(B); 9(c)(3). The judge who

arraigned Chapple did not inform him of this right. Rather, before the arraignment, the court

appointed the Federal Public Defender to represent Chapple. But then during the arraignment, the

judge did not mention Chapple’s right to retain someone else. The government concedes this was



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Case No. 19-3111, United States v. Chapple


error but argues that it was harmless. Chapple says it violated his Sixth Amendment right and

entitles him to a new trial.

        The general rule is “that a constitutional error does not automatically require reversal of a

conviction[.]” Arizona v. Fulminante, 499 U.S. 279, 306 (1991). Chapple raised his argument for

the first time on appeal, so the government asks us, without objection, to apply plain-error review.

See United States v. Dubrule, 822 F.3d 866, 882 (6th Cir. 2016) (“This Court reviews unpreserved

constitutional claims for plain error.”) Under that standard, Chapple would have to show that “(1)

an error occurred; (2) the error was obvious or clear; (3) the error affected his substantial rights;

and (4) the error seriously affected the fairness, integrity, or public reputation of the judicial

proceedings.” United States v. Cline, 362 F.3d 343, 348 (6th Cir. 2004).

        An error occurred, and it was obvious, but Chapple has not shown that the error affected

his substantial rights. In his sole brief before this court, he asserts only that the judge’s omission

caused the “possible denial of [his] right to counsel of his choice.” But when it comes to the right

to choose one’s counsel under the Sixth Amendment, the “[d]eprivation of the right is ‘complete’

when the defendant is erroneously prevented from being represented by the lawyer he wants[.]”

United States v. Gonzalez-Lopez, 548 U.S. 140, 148 (2006). Chapple has merely shown a violation

of Rule 5 and he speculates that a deprivation of his constitutional rights might have occurred.

Without knowing whether Chapple was already aware of his right, and without knowing whether

he was actually able to retain an attorney, we cannot conclude that the court prevented Chapple

from choosing his lawyer. Cf. id. at 154–55 (Alito, J., dissenting) (giving examples of when a

court can properly prevent a defendant from using his preferred attorney). Chapple has not shown

that his Sixth Amendment rights were violated, so we reject his claim.




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Case No. 19-3111, United States v. Chapple


                              B. Interruptions at Closing Arguments

       The district court twice interrupted Chapple’s attorney during his closing argument and

told the jury to disregard some of the attorney’s comments. After the jury rendered its verdict,

Chapple moved for a new trial, arguing that the interruptions “were improper and prejudiced Mr.

Chapple’s right to a fair trial.” The court denied the motion. Now on appeal, Chapple argues that

the interruptions deprived him of his “right to assistance of counsel.”

       The dispute hinges on the attorney’s so-called “golden rule” arguments. A golden rule

argument involves asking jurors to put themselves in the defendant’s position. Mich. First Credit

Union v. Cumis Ins. Soc., Inc., 641 F.3d 240, 249 (6th Cir. 2011). Such arguments are “improper

because they invite decision based on bias and prejudice rather than consideration of facts.” Id.

(quoting Johnson v. Howard, 24 F. App’x 480, 487 (6th Cir. 2001)). Chapple contends that his

lawyer’s remarks were not actually golden rule arguments. But even if they were not, Chapple has

not demonstrated that relief is warranted.

       According to Chapple, the court’s instructions to the jury to disregard certain arguments

violated his Sixth Amendment right to the assistance of counsel. Yet he offers no cases supporting

this theory. He does cite Herring v. New York, but that case cuts against him. There, the Supreme

Court held that a New York court rule was unconstitutional because it permitted a judge presiding

over a criminal bench trial “to deny absolutely the opportunity for any closing summation at all.”

422 U.S. 853, 863 (1975). But so long as the trial court allows closing arguments, it has significant

discretion in curbing those arguments:

       The presiding judge must be and is given great latitude in controlling the duration
       and limiting the scope of closing summations. He may limit counsel to a reasonable
       time and may terminate argument when continuation would be repetitive or
       redundant. He may ensure that argument does not stray unduly from the mark, or
       otherwise impede the fair and orderly conduct of the trial. In all these respects he
       must have broad discretion.

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Case No. 19-3111, United States v. Chapple


Id. at 862. Chapple’s attorney was given ample time to make a closing argument. Thus, even

assuming the court’s brief interruptions and instructions to the jury were misplaced, Chapple must

show that they had a “substantial and injurious effect or influence in determining the jury’s

verdict.” Batey v. Scutt, 460 F. App’x 530, 537 (6th Cir. 2012) (quoting Brecht v. Abrahamson,

507 U.S. 619, 638 (1993)). Chapple has not made such a showing, so his claim fails.

                                C. The Government’s Comments

       During the government’s closing rebuttal arguments, the following exchange occurred:

       GOVERNMENT: I can tell you this: The undisputed evidence is that the charger
       was found in the bag and that the defendant admitted possessing a firearm. The
       only speculation, that the defendant didn’t say it was his firearm or that the charger
       wasn’t in the bag, came from opening and closing arguments of [Chapple’s
       attorney]. There was nothing that came from the witness stand that ever --

       DEFENSE: Objection, Your Honor.

       THE COURT: You remember what the evidence is.

       GOVERNMENT: So the undisputed evidence, from my recollection, is that the
       charger was in the bag and the defendant admitted that the firearm was his. But to
       accept that the charger was in the defendant’s pocket, if you look at that picture, if
       the charger was in the pocket, that picture was clearly a staged photo of someone
       holding the charger by the bag.

It is not clear from the transcript what Chapple’s objection was, but when the verdict came back

guilty, Chapple moved for a new trial on the ground that the government’s statement was a

comment on Chapple’s decision to not testify. The court denied the motion and Chapple now

revives the argument on appeal.

       There are two ways to look at the government’s comment about “undisputed” testimony.

The way Chapple sees it, the government was pointing out that he never took the stand to dispute

the officers’ claims. The way the court and the government saw it, however, the government was

pointing out that all three of the officers who took the stand had the same recollection: Chapple



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Case No. 19-3111, United States v. Chapple


admitted that the gun was his. Even if Chapple’s interpretation is the better one, he is still not

entitled to relief.

           “[I]solated inappropriate remarks by the prosecutor, in an otherwise fair trial, do not

generally justify reversal of a criminal conviction.” United States v. Chalkias, 971 F.2d 1206,

1213 (6th Cir. 1992) (relying on United States v. Young, 470 U.S. 1, 11–12 (1985)). In determining

whether the prosecutor’s conduct was flagrant enough to warrant reversal, we consider:

“(1) whether the conduct and remarks of the prosecutor tended to mislead the jury or prejudice the

defendant; (2) whether the conduct or remarks were isolated or extensive; (3) whether the remarks

were deliberately or accidentally made; and (4) whether the evidence against the defendant was

strong.” United States v. Carter, 236 F.3d 777, 783 (6th Cir. 2001).

           The remarks in this case fail that test. They likely did not mislead the jury, particularly

given the jury instructions.1 They occurred only once. Admittedly, the evidence against the

defendant was limited—three officers gave similar testimony about what Chapple said to them and

no one made a record of those statements—but Chapple also presented no evidence to the contrary.

On balance, the government’s stray remarks during closing argument are not the flagrant type

justifying reversal.

                                                     D. Sentencing

           By statute, if a person has three prior violent felony convictions and is then convicted of

possessing a firearm, his minimum sentence is 15 years of imprisonment. 18 U.S.C. § 924(e)(1).

Chapple concedes that he is such a person. He has three prior convictions for felonious assault



1
    The court instructed them clearly:
           A defendant has an absolute right not to testify. The fact that he did not testify may not be considered
           by you in any way. Do not even discuss it in your deliberations. Remember it’s up to the
           Government to prove the defendant guilty beyond a reasonable doubt. It’s not up to the defendant
           to prove that he is innocent.

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Case No. 19-3111, United States v. Chapple


with a deadly weapon which we have previously found to be a predicate offense. See United States

v. Burris, 912 F.3d 386, 406 (6th Cir.) (en banc), cert. denied, 140 S. Ct. 90 (2019). Consequently,

Chapple does not suggest that the court erred in designating him an armed career criminal.

       Instead, Chapple argues that his sentence is nonetheless cruel and unusual, in violation of

the Eighth Amendment. His argument hangs on disproportionality. He was a teenager when he

committed the predicate offenses and spent the next 12 years in prison. He had been on parole for

only three months when he was caught with the handgun, which he claimed was for protection.

Now he sits in prison once again, merely for the possession, and will not be free again until he is

in his forties.   Chapple insists that the 15-year sentence he is now serving is “grossly

disproportionate to the crime of possession of a firearm” and is therefore a cruel and unusual

punishment.

       The trouble for Chapple, as he admits, is that we previously rejected a categorical

prohibition on “the consideration of juvenile-age offenses when determining the applicability” of

§ 924(e)’s fifteen-year mandatory minimum. United States v. Banks, 679 F.3d 505, 508 (6th Cir.

2012). Like Chapple, the defendant in Banks also received a 15-year sentence for possessing a

firearm based on predicate offenses he committed as a juvenile. We did point out that the Banks

defendant could have brought “an Eighth Amendment challenge targeting his particular

circumstances,” but he had “offer[ed] no argument to suggest that his actual sentence—the

statutory minimum of fifteen years—[was] grossly disproportionate to his crime and record.” Id.

So we affirmed the sentence.

       Chapple does argue a bit about his particular circumstances. He points out several times

that he was “a 17-year old [who] went on a crime spree during a four-month period of time” and

already “spent 13 years in prison for those crimes.” And there was no evidence that the firearm



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Case No. 19-3111, United States v. Chapple


he was caught with had been or would be used in a crime. But Chapple’s description is incomplete.

Although it took only three predicate offenses to qualify him for the 15-year minimum, his rap

sheet is much longer. That history matters. Cf. United States v. Young, 766 F.3d 621, 628 (6th

Cir. 2014) (taking into consideration the defendant’s recidivism and prior crimes, even though they

had occurred 20 years earlier). We have recognized, more than once, that “[t]he striking and

troublesome harshness of a fifteen-year sentence for felon in possession of a firearm is but a

particularly clear example of our sometimes difficult duty to apply the policy choices of Congress,

rather than our own.” Id. (quoting United States v. Nagy, 760 F.3d 485, 490 (6th Cir. 2014))

(alterations adopted). Chapple has not shown why his case is different than those that have come

before it. His Eighth Amendment argument thus fails.

                                              ***

       We AFFIRM the judgment of the district court.




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