                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT               September 21, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-60453
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

STEPHEN WISHORK,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
            for the Southern District of Mississippi
                       USDC No. 4:04-CR-32
                      --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Stephen Wishork appeals his conviction following a jury

trial for sexual assault of a child on an Indian reservation, in

violation of 18 U.S.C. §§ 1153 and 2241(c), and his resulting

180-month sentence.   He contends that the prosecutor made

impermissible closing remarks which deprived him of a fair trial;

that the district court erred in preventing him from cross-

examining Government witness Randal Hickman about any charges of

sexual assault Hickman faced; and that the sentence imposed

violates United States v. Booker, 543 U.S. 220 (2005).

     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                           No. 05-60453
                                -2-

     Wishork’s challenge to the prosecutor’s closing remarks

indicating that he and his girlfriend, Tonya Lillie, broke up

because she was aware he sexually assaulted the victim in this

case fails for lack of resulting substantial prejudice because

the challenged statements were not pervasive throughout closing

argument and were limited by the district court’s cautionary

instruction to the jury that argument by counsel was not

evidence.   See United States v. Holmes, 406 F.3d 337, 356 (5th

Cir.), cert. denied, 126 S. Ct. 375 (2005).   Moreover, the

evidence of Wishork’s guilt was strong, including the medical

evidence indicative of sexual assault; the victim’s testimony

that Wishork was her attacker, which testimony was corroborated

by the testimony of her family members, the investigating

officer, and the nurse who examined her; Officer Butler’s

testimony that, at his initial interview, Wishork denied being at

home on the night in question, then changed his story, saying

that he had gone out with Randal Hickman and returned home to

sleep in his room; and Hickman’s testimony that he spent the

night in Wishork’s room and did not see Wishork that evening,

which contradicted Wishork’s story to the police.   See id.

     To the extent that Wishork additionally challenges, for the

first time on appeal, the prosecutor’s comments regarding his

flight to New Mexico after his initial police interview, the

claim is similarly unavailing.   The remarks regarding Wishork’s

flight to New Mexico were made in explanation of why he had not
                            No. 05-60453
                                 -3-

been tested for chlamydia and were proper comments on the trial

evidence.    See United States v. Binker, 795 F.2d 1218, 1224

(5th Cir. 1986).    Moreover, the comments were proper rebuttal to

the defense counsel’s closing argument suggesting that the

investigators were at fault for failing to test Wishork for

chlamydia.    The remarks were not plainly erroneous.    See United

States v. Knezek, 964 F.2d 394, 400 (5th Cir. 1992).

     Wishork next contends, also for the first time on appeal,

that the district court improperly limited his cross-examination

of Hickman.    Even if it is assumed that the district court’s

ruling prohibiting Wishork’s proposed question on cross-

examination was error, Wishork’s substantial rights were not

affected, given the strength of the direct evidence of his guilt,

including the victim’s unwavering identification of him as her

assailant, as well as the lack of any evidence pointing to

Hickman as a suspect and the jury’s clear rejection of Lillie’s

alibi testimony.    See United States v. Olano, 507 U.S. 725, 732

(1993).

     Wishork additionally challenges his sentence.      For the first

time on appeal, he contends that the sentence violates Booker

because the district court apparently considered the guidelines

to be mandatory and because it increased his sentence beyond the

statutory maximum based on judicially determined facts.

     Wishork’s conclusional allegation that the district court

mistakenly considered the guidelines to be mandatory is
                            No. 05-60453
                                 -4-

unsupported by the record, which establishes that sentence was

imposed after Booker.    Because sentencing occurred post-Booker,

there is no Sixth Amendment violation in connection with the

district court’s factual findings.    See United States v. Mares,

402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).

Further, because the sentence imposed fell within a properly

calculated advisory guidelines range, it was neither unreasonable

nor plainly erroneous.    Id.

     The district court’s judgment is AFFIRMED.
