                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 09-16345                ELEVENTH CIRCUIT
                                                           JANUARY 5, 2011
                        Non-Argument Calendar
                                                             JOHN LEY
                      ________________________
                                                              CLERK

                  D. C. Docket No. 08-60309-CR-KAM

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus

RODOLFO MARTINEZ,

                                                        Defendant-Appellant.


                      ________________________

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

                            (January 5, 2011)



Before EDMONDSON, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:
      Rodolfo Martinez appeals his convictions for conspiracy to obstruct

interstate commerce, in violation of 18 U.S.C. § 1951; conspiracy to possess with

intent to distribute at least 500 grams of cocaine, in violation of 21 U.S.C. § 846;

conspiracy to use a firearm during the commission of a crime of violence and a

drug trafficking crime, in violation of 18 U.S.C. § 924(o); use of a firearm during a

drug trafficking crime and a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1); and possession of a firearm by a convicted felon in violation of 18

U.S.C. § 922(g)(1). Martinez also challenges his 60-month consecutive sentence

for using a firearm during a crime of violence.

                                           I.

      Martinez argues that comments made by the prosecutor during closing

arguments constituted prosecutorial misconduct. We review de novo a claim of

prosecutorial misconduct during closing arguments. United States v. Eckhardt,

466 F.3d 938, 947 (11th Cir. 2006). “To establish prosecutorial misconduct, (1)

the remarks must be improper, and (2) the remarks must prejudicially affect the

substantial rights of the defendant.” Id. (quotation marks omitted). “A

defendant’s substantial rights are prejudicially affected when a reasonable

probability arises that, but for the remarks, the outcome of the trial would have

been different.” Id. “When the record contains sufficient independent evidence of



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guilt, any error is harmless.” Id.

      Martinez asserts that the government engaged in prosecutorial misconduct

when the prosecutor said: “I don’t think there’s any question based on the evidence

you’ve seen, I don’t think there’s any reasonable doubt whatsoever. . . . I think

based on [the] evidence, as long as you keep your eye on the ball and don’t let the

defense lawyer distract you, which is his job.” Martinez argues that this statement

improperly injected the prosecutor’s personal opinion into the case and attacked

defense counsel’s character. We do not agree that this remark rises to the level of

prosecutorial misconduct. The prosecutor’s comment could also be characterized

as an attempt to argue the weight of the evidence. See United States v. Tisdale,

817 F.2d 1552, 1556 (11th Cir. 1987) (concluding that prosecutor’s remark—“I

believe the government has proven its case beyond a reasonable doubt”—went to

the weight of the evidence and was not improper). In any event, any problem

regarding this comment was cured by the district court’s instruction to disregard

the prosecutor’s statement. See United States v. Gonzalez, 122 F.3d 1383,

1388–89 (11th Cir. 1997).

      Martinez also asserts that it was improper for the prosecutor to say: “[I]f it

wasn’t a law enforcement investigation, who knows what might have happened.

Thank God it was a law enforcement investigation this time and that there wasn’t



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an actual victim.” He argues that the prosecutor’s statement improperly inflamed

the jury. We reject this argument as well. “The prosecutor, as an advocate, is

entitled to make a fair response to the arguments of defense counsel.” United

States v. Hiett, 581 F.2d 1199, 1204 (5th Cir. 1978).1 During his closing argument,

defense counsel encouraged the jury to acquit Martinez because the robbery was a

“fictional situation.” The prosecutor’s comment fairly responded to that argument.

                                              II.

         Martinez contends that the district court erred in denying his motion to

dismiss the indictment based on outrageous government conduct. A motion to

dismiss the indictment on the basis of outrageous government conduct involves a

question of law that we review de novo. United States v. Gupta, 463 F.3d 1182,

1191 (11th Cir. 2006); United States v. Savage, 701 F.2d 867, 868 n.1 (11th Cir.

1983).

         “Outrageous government conduct occurs when law enforcement obtains a

conviction for conduct beyond the defendant’s predisposition by employing

methods that fail to comport with due process guarantees.” United States v.

Ciszkowski, 492 F.3d 1264, 1270 (11th Cir. 2007). “Under this standard, the



         1
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.

                                               4
conduct must be so outrageous that it is fundamentally unfair.” Id.; see also United

States v. Haimowitz, 725 F.2d 1561, 1577 (11th Cir. 1984) (“Whether outrageous

government conduct exists turns upon the totality of the circumstances with no

single factor controlling and the defense can only be invoked in the rarest and most

outrageous circumstances.” (quotation marks omitted)).

      The government’s conduct in this case was within constitutionally permitted

limits. The evidence in the record shows that Martinez was a willing and active

participant in a scheme to rob a home believed to contain narcotics. The

government’s conduct in encouraging Martinez’s co-conspirators to keep him

involved in the scheme does not “violate[ ] fundamental fairness and shock[ ] the

universal cause of justice.” United States v. Costales, 5 F.3d 480, 487 (11th Cir.

1993) (quotation marks omitted). The district court did not err in denying

Martinez’s motion to dismiss the indictment based on outrageous government

conduct.

                                         III.

      Martinez also contends that the district court erred in refusing to give a jury

instruction on entrapment. “We review a district court’s refusal to give a particular

jury instruction for abuse of discretion.” United States v. Yeager, 331 F.3d 1216,

1222 (11th Cir. 2003) (quotation marks omitted).



                                          5
      Entrapment is an affirmative defense with two elements: “(1) government

inducement of the crime and (2) the defendant’s lack of predisposition to commit

the crime before the inducement.” United States v. Orisnord, 483 F.3d 1169, 1178

(11th Cir. 2007). Before an entrapment instruction may be presented to the jury,

the defendant must show “some evidence, more than a scintilla, that government

agents induced him to commit the offense.” United States v. Chirinos, 112 F.3d

1089, 1102 (11th Cir. 1997) (quotation marks omitted); see also United States v.

Mers, 701 F.2d 1321, 1340 (11th Cir. 1983) ( “A defendant cannot avail himself of

an entrapment defense unless the initiator of his criminal activity is acting as an

agent of the government.”).

      The record shows that Martinez was approached about the robbery by

Duhart, a co-conspirator, and not a government agent. Although government

agents encouraged Martinez’s co-conspirators to keep him involved in the robbery

scheme, there is no evidence in the record that he expressed reluctance to

participate and that the scheme had to be “pushed” on him. See Orisnord, 483 F.3d

at 1178. Because no evidence exists to support a claim of entrapment, the district

court properly denied Martinez’s request to give an entrapment instruction.

                                         IV.

      Martinez also argues that the district court erred in imposing a consecutive



                                           6
60-month sentence for his conviction under 18 U.S.C. § 924(c), because the plain

language of § 924(c) prohibits the imposition of consecutive sentences when the

defendant is subject to a greater mandatory-minimum sentence for another offense.

Because Martinez raises this issue for the first time on appeal, we review only for

plain error. See United States v. Raad, 406 F.3d 1322, 1323 (11th Cir. 2005). “To

establish plain error, [the defendant] must show that there was (1) error, (2) that is

plain, and (3) that affects his substantial rights.” United States v. Belfast, 611 F.3d

783, 815 (11th Cir. 2010). “If all three requirements are met, we may reverse only

if the error also seriously affects the fairness, integrity or public reputation of

judicial proceedings.” Id. (quotation marks and alterations omitted).

      Martinez’s argument is foreclosed by the Supreme Court’s decision in

Abbott v. United States, —U.S.— , 131 S. Ct. 18 (2010), holding that “a defendant

is subject to a mandatory, consecutive sentence for a § 924(c) conviction, and is

not spared from that sentence by virtue of receiving a higher mandatory minimum

on a different count of conviction.” Id. at 23; see also United States v. Segarra,

582 F.3d 1269, 1272–73 (11th Cir. 2009) (concluding that the plain language of §

924(c) requires consecutive sentences for a defendant convicted of a § 924(c)

offense and an underlying drug crime). No error occurred.

      AFFIRMED.



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