           Case: 16-17257   Date Filed: 10/05/2017   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-17257
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 2:15-cr-00524-WKW-WC-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

JAMES VERNON BATTLE,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Alabama
                     ________________________

                            (October 5, 2017)

Before TJOFLAT, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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      James Battle challenges his 61-month total sentence for aggravated identity

theft and wire fraud. On appeal, Battle argues that the government committed

prosecutorial misconduct at his sentencing hearing by making misleading

statements to the court and relying on a witness’s testimony that it knew to be

false. The government, in its response, argues that Battle’s claims are, in fact,

recast challenges to his guideline calculation and thus are barred by a

sentence-appeal waiver in his plea agreement.

                                          I.

      We review the validity of a sentence-appeal waiver de novo. United States

v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). A sentence-appeal waiver will

be enforced if it was made knowingly and voluntarily. United States v. Bushert,

997 F.2d 1343, 1351 (11th Cir. 1993). To establish that the waiver was made

knowingly and voluntarily, the government must show either that: (1) the district

court specifically questioned the defendant about the waiver during the plea

colloquy; or (2) the record makes clear that the defendant otherwise understood the

full significance of the waiver. Id. We have determined that a defendant may not

recast a waived challenge to his sentence as an ineffective-assistance-of-counsel

claim so as to fit within an express exception to the waiver for such claims. See

Williams v. United States, 396 F.3d 1340, 1342 (11th Cir. 2005).




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      Battle’s plea waiver expressly stated that it “does not include the right to

appeal on the ground of ineffective assistance of counsel or prosecutorial

misconduct.” (Doc. 46 at 8). In this appeal, Battle’s claim that the government

committed prosecutorial misconduct at his sentencing hearing falls directly within

this exception to the sentence-appeal waiver. Battle’s arguments that the

government committed prosecutorial misconduct at the sentencing hearing are not

barred by the appeal waiver in the plea agreement.

                                          II.

      We ordinarily review claims of prosecutorial misconduct de novo. United

States v. Merrill, 513 F.3d 1293, 1306 (11th Cir. 2008). However, where a

defendant did not object to the prosecutor’s conduct in the district court, we review

these claims for plain error. See id. at 1306-07. Under plain error review, the

appealing party bears the burden of establishing that: (1) the district court erred; (2)

the error was plain or obvious; (3) the error affected her substantial rights; and (4)

the error damaged the fairness, integrity, or reputation of the court proceedings.

United States v. Schmitz, 634 F.3d 1247, 1268 (11th Cir. 2011). To show that an

error was plain, the error must be contrary to an explicit statutory provision or

on-point precedent from this Court or the Supreme Court. United States v.

Hoffman, 710 F.3d 1228, 1232 (11th Cir. 2013).




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       To establish prosecutorial misconduct, a defendant must show that the

prosecutor made improper remarks that prejudiced his substantial rights. Merrill,

513 F.3d at 1307. A prosecutor’s remarks prejudice a defendant’s substantial

rights when there is a reasonable probability that, but for the remarks, the outcome

of the case would have been different. See id.

       We have determined that a prosecutor’s statements in opening, closing, and

rebuttal arguments at trial did not amount to prosecutorial misconduct where, even

considered cumulatively, the prosecutor’s comments did not deny the defendant a

fair trial. See United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006).

Under Model Rule of Professional Conduct 3.1, attorneys may not make assertions

in a proceeding that do not have a non-frivolous basis in law and fact. Model

Rules of Prof’l Conduct 3.1 (Am. Bar Ass’n 2014).

       Battle has failed to meet his burden of proof under plain error review. First,

Battle must demonstrate that the district court’s alleged error was plain or obvious,

which requires that the error be contrary to on point precedent from this Court or

the Supreme Court. However, Battle fails to point to a single circuit or Supreme

Court precedent that recognizes prosecutorial misconduct at the sentencing phase,

rather than at trial.

       Second, Battle must show that the government’s misconduct affected his

substantial rights. Battle contends that his rights were affected with regards to both


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the denial of a two-point sentence reduction for acceptance of responsibility and

the imposition of a two-point sentence enhancement for obstruction of justice. For

acceptance of responsibility, Battle argues that the government’s statement that

Battle tried to “sabotage some of the case” when he attempted to withdraw his

guilty plea constitutes misconduct and affected his substantial rights. The district

court gave four reasons for overruling Battle’s objection to the lack of a reduction

for accepting responsibility: (1) he violated his bond condition; (2) he failed to

terminate his criminal conduct by possessing a firearm while under indictment; (3)

he tampered with, and retaliated against, a witness; and (4) he moved to withdraw

his guilty plea. (Doc. 100 at 5-6). Further, the court noted that an enhancement for

obstruction of justice ordinarily indicates the defendant has not accepted

responsibility. Battle fails to demonstrate the government’s misconduct caused the

court’s denial of a sentence reduction for acceptance of responsibility.

       For obstruction of justice, Battle argues that the government’s reliance on

Ms. Webster’s testimony was misconduct that affected his substantial rights.

However, Ms. Webster’s testimony was supported by security footage.

Additionally, Battle has presented no evidence that the government knew Ms.

Webster’s testimony was false..

      Battle has not met his burden under plain error review in demonstrating

prosecutorial misconduct. He has not pointed to any on-point precedent that such


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statements during sentencing constitute prosecutorial misconduct, the

prosecution’s statements were based on facts on the record, and the statements did

not affect Battle’s substantial rights.

      AFFIRMED.




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