                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 08-13525         ELEVENTH CIRCUIT
                         Non-Argument Calendar        JUNE 12, 2009
                       ________________________    THOMAS K. KAHN
                                                        CLERK
                    D. C. Docket No. 08-20002-CR-PAS

UNITED STATES OF AMERICA,


                                                           Plaintiff-Appellee,

                                  versus

ROBERT GLOVER,

                                                        Defendant-Appellant.


                       ________________________

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

                              (June 12, 2009)

Before CARNES, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

     Robert Glover challenges his conviction and 210-month sentence imposed
for being a felon in possession of a firearm and ammunition, in violation of

18 U.S.C. § 922(g)(1). On appeal, Glover argues that the district court erred when

it admitted testimony from police officers about out-of-court statements, in

violation of his Sixth Amendment right to confront witnesses against him. Next,

he argues that, when viewed cumulatively with the admission of these out-of-court

statements, the prosecutor’s improper arguments during closing deprived Glover

of his right to a fair trial. Finally, Glover argues that his 210-month sentence is

unreasonable because it resulted from the court’s undue focus on his criminal

history and its disregard for his significant mitigating circumstances.

                             I. The Sixth Amendment

      We review constitutional questions de novo. United States v. Brown,

364 F.3d 1266, 1268 (11th Cir. 2004). We also review de novo the question of

whether out-of-court statements are “testimonial” for purposes of the

Confrontation Clause. United States v. Lamons, 532 F.3d 1251, 1261 n.15 (11th

Cir.), cert. denied, 129 S.Ct. 524 (2008). Sixth Amendment Confrontation Clause

violations are subject to the harmless-error standard. United States v. Edwards,

211 F.3d 1355, 1359 (11th Cir. 2000).

      The Confrontation Clause of the Sixth Amendment provides a defendant in

a criminal trial the right “to be confronted with the witnesses against him.”

                                          2
U.S. Const. amend. VI. In Crawford v. Washington, the Supreme Court held that

when testimonial evidence is used against a defendant at trial, his Sixth

Amendment rights under the Confrontation Clause cannot be denied unless the

declarant is unavailable and the defendant had a prior opportunity to

cross-examine the declarant. 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d

177 (2004).

      The Confrontation Clause prohibits only statements that constitute

impermissible hearsay. The Supreme Court explained that “[t]he Clause . . . does

not bar the use of testimonial statements for purposes other than establishing the

truth of the matter asserted.” Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354; see

also Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425

(1985) (“The nonhearsay aspect of [the declarant's] confession-not to prove what

happened at the murder scene but to prove what happened when respondent

confessed-raises no Confrontation Clause concerns.”). In United States v. Baker,

we explained that if a hearsay statement is testimonial-“typically [a] solemn

declaration or affirmation made for the purpose of establishing or proving some

fact”-its admissibility is prohibited by the Confrontation Clause. 432 F.3d 1189,

1203-04 (quoting Crawford, 541 U.S. at 51, 124 S.Ct. 1354). Hearsay, of course,

“is a statement, other than one made by the declarant while testifying at the trial or

                                          3
hearing, offered in evidence to prove the truth of the matter asserted,” Fed.R.Evid.

801(c). But, if a trial court admits a statement, made by an available declarant

whom the defendant has not had the opportunity to cross-examine, for a purpose

other than for the truth of the matter asserted, the admissibility of that statement

does not violate the Confrontation Clause.

      The statements here were not introduced for the truth of the matter asserted

because they merely explained why the police sought to stop Glover and were not

testimonial because they were not given in solemn declaration or affirmation for

the purpose of establishing a fact. Therefore, we reject this argument.



                  II. Closing Arguments and Cumulative Error

      Where, as here, a defendant does not object to comments made by the

prosecution at trial, the standard of review is plain error. United States v.

Hernandez, 921 F.2d 1569, 1573 (11th Cir. 1991). To justify reversal under this

standard, the error must be “so obvious that failure to correct it would jeopardize

the fairness and integrity of the trial.” United States v. Mock, 523 F.3d 1299,

1302 (11th Cir. 2008).

      “The sole purpose of closing argument is to assist the jury in analyzing the

evidence.” United States v. Iglesias, 915 F.2d 1524, 1529 (11th Cir. 1990).

                                           4
“While a prosecutor may not exceed the evidence in closing argument, he may

state conclusions drawn from the evidence.” United States v. Bailey, 123 F.3d

1381, 1400 (11th Cir. 1997) (citation omitted). A prosecutor is not prohibited

from making “colorful and perhaps flamboyant” remarks if they relate to the

evidence adduced at trial. Id.; see also United States v. Frazier, 944 F.2d 820,

827-28 (11th Cir. 1991) (“A prosecutor may even describe a defense as ‘absurd’

and ‘a big fake’ as long as the trial record supports the prosecutor’s comments.”).

      The prosecution may not “place the prestige of the government behind a

witness by making explicit personal assurances of the witness’s veracity or by

indicating that information not presented to the jury supports the testimony.”

Hernandez, 921 F.2d at 1573. “The prohibition against vouching does not forbid

prosecutors from arguing credibility, which may be central to the case; rather, it

forbids arguing credibility based on the reputation of the government office or on

evidence not before the jury.” Id.

      We review for an abuse of discretion a party’s argument that a series of

errors by the district court, when viewed cumulatively, denied the party a fair trial.

Mock, 523 F.3d at 1302. The cumulative error doctrine “provides that an

aggregation of non-reversible errors (i.e., plain errors failing to necessitate

reversal and harmless errors) can yield a denial of the constitutional right to a fair

                                           5
trial, which calls for reversal.” United States v. Baker, 432 F.3d 1189, 1223 (11th

Cir. 2005) (quotation omitted). “The harmlessness of cumulative error is

determined by conducting the same inquiry as for individual error–courts look to

see whether the defendant’s substantial rights were affected.” Id. (quotation

omitted).

      Here, the statements made by the prosecutor were within the realm of

acceptable comments made in closing argument. The prosecutor’s comments on

the veracity of the police officers was based on an attack on their credibility and

did not invoke the prestige of the government. Additionally, his statements about

Glover’s rationale for fleeing were proper comments on the evidence. There was

no plain error.



                        III. Reasonableness of the Sentence

      We review a defendant’s sentence for reasonableness. United States v.

Booker, 543 U.S. 220, 264, 125 S.Ct. 738, 767, 160 L.Ed.2d 621 (2005); United

States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005). After Booker,

sentencing requires two steps: first, the district court must correctly calculate the

guideline range, and second, the district court must consider the factors listed in

18 U.S.C. § 3553(a) in arriving at a reasonable sentence. United States v. Talley,

                                           6
431 F.3d 784, 786 (11th Cir. 2005).

      The substantive reasonableness of a sentence is reviewed under an

abuse-of-discretion standard. Gall v. United States, 552 U.S. ___, ___, 128 S.Ct.

586, 597, 169 L.Ed.2d 445 (2007). Our reasonableness review is deferential, and

requires us to “evaluate whether the sentence imposed by the district court fails to

achieve the purposes of sentencing as stated in section 3553(a).” Talley, 431 F.3d

at 788. The party challenging the sentence “bears the burden of establishing that

the sentence was unreasonable in light of [the] record and the factors in section

3553(a).” Id.

      In arriving at a reasonable sentence, the district court is required to consider

the factors set out in 18 U.S.C. § 3553(a):

      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant; (2) the need to reflect the seriousness
      of the offense, to promote respect for the law, and to provide just
      punishment for the offense; (3) the need for deterrence; (4) the need
      to protect the public; (5) the need to provide the defendant with
      needed educational or vocational training or medical care; (6) the
      kinds of sentences available; (7) the Sentencing Guidelines range;
      (8) pertinent policy statements of the Sentencing Commission; (9) the
      need to avoid unwanted sentencing disparities; and (10) the need to
      provide restitution to victims.

Id. at 786 (citing 18 U.S.C. § 3553(a)). The district court shall impose a sentence

that is sufficient, but not greater than necessary, to comply with the purposes of



                                          7
factors two through five listed above. 18 U.S.C. § 3553(a). It is sufficient for the

district court to acknowledge that it has considered the § 3553(a) factors, but it

need not explicitly discuss each of them. United States v. Scott, 426 F.3d 1324,

1329 (11th Cir. 2005). We have recognized that “there is a range of reasonable

sentences from which the district court may choose.” Talley, 431 F.3d at 788.

Necessarily, there are also “sentences outside the range of reasonableness that do

not achieve the purposes of sentencing stated in § 3553(a) and that thus the district

court may not impose.” United States v. Martin, 455 F.3d 1227, 1237 (11th Cir.

2006).

      Because the district court sentenced Glover within the guidelines range and

considered the § 3553(a) factors, Glover has not satisfied his burden of

establishing that his sentence was unreasonable. In addition, the sentence was not

greater than necessary, as the district court took into account the seriousness of the

offense and the need to provide for just punishment, both of which are proper

considerations under § 3553(a)(2).

                                  IV. Conclusion

      Because there was no error at trial warranting a reversal and because the

district court properly sentenced Glover, we affirm.




                                          8
AFFIRMED.1




1
    Glover’s request for oral argument is denied.

                                     9
