                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                 FILED
                                                        U.S. COURT OF APPEALS
                              No. 09-15116                ELEVENTH CIRCUIT
                                                              JULY 27, 2010
                          Non-Argument Calendar
                                                               JOHN LEY
                        ________________________
                                                                CLERK

                     D. C. Docket No. 08-20290-CR-JAL

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

JENNY MEJIA DE HERNANDEZ,

                                                          Defendant-Appellant.


                        ________________________

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

                             (July 27, 2010)

Before EDMONDSON, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

     Jenny Mejia de Hernandez (“Mejia”) appeals her convictions and sentences
for conspiracy to deliver firearms to a common carrier without notice and to export

firearms, delivery of firearms to a common carrier without notice, and illegally

exporting firearms. Mejia makes three arguments on appeal. First, she challenges

the sufficiency of the evidence with respect to all of her convictions. Second, she

argues that the prosecutor’s statements during closing argument, which she did not

object to at the time, were improper because they referred to her right to remain

silent. Third, she challenges the application of U.S.S.G. § 2M5.2(a)(1) to set her

base offense level.



                      I. SUFFICIENCY OF THE EVIDENCE

      We review de novo a district court’s denial of a motion for judgment of

acquittal on sufficiency of evidence grounds. United States v. Browne, 505 F.3d

1229, 1253 (11th Cir. 2007). In determining whether sufficient evidence supports

a conviction, we “must view the evidence in the light most favorable to the

government and decide whether a reasonable fact finder could have reached a

conclusion of guilt beyond a reasonable doubt.” United States v. Herrera, 931

F.2d 761, 762 (11th Cir. 1991). Furthermore, a “jury’s verdict cannot be

overturned if any reasonable construction of the evidence would have allowed the

jury to find the defendant guilty beyond a reasonable doubt.” Id.



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      To establish conspiracy under 18 U.S.C. § 371, the government must prove

beyond a reasonable doubt “(1) an agreement among two or more persons to

achieve an unlawful objective; (2) knowing and voluntary participation in the

agreement; and (3) an overt act by a conspirator in furtherance of the agreement.”

United States v. Ellington, 348 F.3d 984, 989 (11th Cir. 2003). To prove

participation in a conspiracy, the government must have proven beyond a

reasonable doubt that a conspiracy existed and that the defendant knowingly and

voluntarily joined the conspiracy. United States v. Charles, 313 F.3d 1278, 1284

(11th Cir. 2002). The government need not prove that the defendants knew all of

the details or participated in every aspect of the conspiracy. Id. at 1284. Rather,

the government must only prove that the defendants “knew the essential nature of

the conspiracy.” Id. (quotation omitted).

      Whether Mejia knowingly volunteered to join the conspiracy may be proven

by “direct or circumstantial evidence, including inferences from the conduct of the

alleged participants or from circumstantial evidence of a scheme.” United States v.

Garcia, 405 F.3d 1260, 1270 (11th Cir. 2005) (citation and quotations omitted).

“Indeed, because the crime of conspiracy is predominantly mental in composition,

it is frequently necessary to resort to circumstantial evidence to prove its

elements.” Id. (citation and internal quotations omitted).



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      In relevant part, 18 U.S.C. § 922(e) provides:

      It shall be unlawful for any person knowingly to deliver or cause to be
      delivered to any common or contract carrier for transportation or
      shipment in interstate or foreign commerce, to persons other than
      licensed importers, licensed manufacturers, licensed dealers, or
      licensed collectors, any package or other container in which there is
      any firearm or ammunition without written notice to the carrier that
      such firearm or ammunition is being . . . shipped.

18 U.S.C. § 922(e).

      Section 554(a) provides that:

      Whoever fraudulently or knowingly exports or sends from the United
      States, or attempts to export or send from the United States, any
      merchandise, article, or object contrary to any law or regulation of the
      United States, or receives, conceals, buys, sells, or in any manner
      facilitates the transportation, concealment, or sale of such
      merchandise, article or object, prior to exportation, knowing the same
      to be intended for exportation contrary to any law or regulation of the
      United States, shall be fined under this title, imprisoned not more than
      10 years, or both.

18 U.S.C. § 554(a).

      Here, the evidence supports the jury’s guilty verdict with respect to all of the

convicted counts. The evidence presented at trial showed that Mejia worked

closely with others to purchase a number of firearms for export and to deliver

several of the purchased firearms to a common carrier without notice to the

common carrier that weapons were delivered, and that several of these firearms

were actually exported by the common carrier. Viewing this evidence in the light



                                          4
most favorable to the government, we hold that a reasonable construction of the

evidence would have allowed the jury to find the Defendant guilty beyond a

reasonable doubt. Herrera, 931 F.2d at 762. We therefore reject Mejia’s argument

that the evidence presented at trial was insufficient to sustain her conviction.



                       II. PROSECUTORIAL MISCONDUCT

      Mejia argues that the prosecutor’s comments during closing argument

attempted to shift the burden of proof and constituted impermissible comment on

Mejia’s failure to testify. While we generally review a prosecutorial-misconduct

claim de novo, see United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006),

because Mejia did not object to the government’s statements during trial, we will

review her challenge only for plain error, see United States v. Wilson, 149 F.3d

1298, 1302 n.5 (11th Cir. 1998). Under the plain error standard, “there must be (1)

an error, (2) that is plain, and (3) that affects substantial rights.” United States v.

Williams, 469 F.3d 963, 966 (11th Cir. 2006). “If these three conditions are met,

we may notice the error only if the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. (quotation omitted).

      In reviewing claims of prosecutorial misconduct, we examine the context of

the entire trial to determine whether the prosecutor’s statements (1) were improper,



                                            5
and (2) prejudicially affected the substantial rights of the defendant. Wilson,

149 F.3d at 1301. A direct reference to a defendant’s failure to testify clearly

violates the defendant’s Fifth Amendment right against self-incrimination, entitling

her to a new trial, but an indirect reference to such failure is not reversible error per

se. United States v. Norton, 867 F.2d 1354, 1364 (11th Cir. 1989) (citing Griffin v.

California, 380 U.S. 609, 612-14, 85 S. Ct. 1229, 1232-33 (1965) (prohibiting

comments that suggest that a defendant’s silence is “evidence of guilt”)). Instead,

the impact of the statement must be assessed in terms of the context in which it was

made. Norton, 867 F.2d at 1364. A comment will not be deemed an

impermissible reference to a defendant’s silence unless “(1) it was the prosecutor’s

manifest intention to refer to the defendant’s silence or (2) the remark was of such

a character that the jury would ‘naturally and necessarily’ take it to be a comment

on the defendant’s silence.” Id. (citation omitted). Furthermore, it is not improper

to comment on the failure of the defense, as opposed to the defendant, to counter or

explain the evidence. United States v. Chirinos, 112 F.3d 1089, 1100 (11th Cir.

1997).

         To meet the substantial prejudice prong, the improper comments must have

“so infect[ed] the trial with unfairness as to make the resulting conviction a denial

of due process.” United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir. 1991)



                                            6
(quotation omitted). We have stated that “[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.” Eckhardt, 466 F.3d

at 947. “When the record contains sufficient independent evidence of guilt, any

error is harmless.” Id.

      Here, the prosecutor’s remarks did not specifically reference Mejia’s failure

to testify, the statements do not show a “manifest intent” to refer to her silence, and

the statements could not be interpreted as such comments. Instead, the government

implicitly commented on the failure of the defense, rather than the failure of the

defendant, to counter or explain the evidence. As such, we discern no plain error

in the prosecutor’s comments.



                           III. BASE OFFENSE LEVEL

      Third, Mejia argues that application of § 2M5.2(a)(1), which set her base

offense level at 26, was improper because only ten firearms were recovered from

the sofa and television and therefore her base offense level should have been 14.

U.S.S.G. § 2M5.2(a)(1) (directing that the base offense level for exportation of

arms, munitions, or military equipment or services without required validated

export licence shall be 26). We decline to address this argument because Mejia



                                           7
withdrew this objection before the district court and conceded that § 2M5.2(a)(1)

applied, thereby inviting any error. See United States v. Masters, 118 F.3d 1524,

1526 (11th Cir. 1997) (holding that where, as here, a defendant raises and then

knowingly withdraws an objection to her sentence, the objection may be deemed

waived and will not be reviewed on appeal); United States v. Ross, 131 F.3d 970,

988 (11th Cir. 1997) (“It is a cardinal rule of appellate review that a party may not

challenge as error a ruling or other trial proceeding invited by that party.”). In any

event, her sentencing challenge lacks merit because the record shows that her

offense involved more than 10 firearms, and, in fact, involved more than 100,

which she readily conceded at sentencing. Thus, she is not entitled to application

of § 2M5.2(a)(2), which reduces the base offense level to 14 “if the offense

involved only non-fully automatic small arms (rifles, handguns, or shotguns), and

the number of weapons did not exceed ten.”

      Accordingly, we affirm Mejia’s convictions and sentences.

      AFFIRMED.1




      1
             Appellant’s request for oral argument is DENIED.

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