                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                 FILED
                                                        U.S. COURT OF APPEALS
                              No. 09-13536                ELEVENTH CIRCUIT
                                                           FEBRUARY 4, 2010
                          Non-Argument Calendar
                                                               JOHN LEY
                        ________________________
                                                             ACTING CLERK

                      D. C. Docket No. 08-00135-CR-S

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

LARRICK ROWE,

                                                          Defendant-Appellant.


                        ________________________

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

                              (February 4, 2010)

Before CARNES, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

     Larrick Rowe appeals his 84-month sentence, which was at the low-end of
his guideline range, for possession with intent to distribute cocaine, in violation of

21 U.S.C. § 841(a)(1). Rowe does not appeal his 60-month sentence for

possession of a firearm in furtherance of a drug trafficking crime, in violation of 18

U.S.C. § 924(c)(1)(A), which runs consecutive to his drug conviction. Rowe’s 84-

month sentence was based on his possession of both crack and powder cocaine.

      On appeal, Rowe argues that the prosecutor committed prosecutorial

misconduct at sentencing because, although he recited the United States

Department of Justice’s (“DOJ’s”) policy supporting the elimination of the

crack/powder cocaine disparity in the Sentencing Guidelines, he undermined the

DOJ’s policy by arguing for a sentence towards the middle of his guideline range.

He contends that, as a result, the district court refused to vary below the low-end of

his guideline range.

      Normally, we review “claims of prosecutorial conduct de novo.” United

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

failed to object to the prosecutor’s statements before the district court, we review

“for plain error that is so obvious that failure to correct it would jeopardize the

fairness and integrity of the trial.” Id. at 1306-07 (quotation omitted). “To

establish prosecutorial misconduct, (1) the remarks must be improper, and (2) the




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remarks must prejudicially affect the substantial rights of the defendant.” Id. at

1307.

        Because the prosecutor complied with the DOJ’s policy, which required him

to inform the district court that the DOJ and the Obama Administration supported

the elimination of the crack/powder cocaine disparity in the Sentencing Guidelines,

he did not commit prosecutorial misconduct, plainly or otherwise, by arguing for a

within-guideline sentence. Accordingly, upon review of the record and

consideration of the parties’ briefs, we affirm Rowe’s 84-month sentence for

possession with intent to distribute cocaine.

        AFFIRMED.




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