                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 14-1869
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                                  FRANCIS APONTE,

                                            Appellant
                                     _____________

            ON APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                    (D.C. Crim. Action No. 2-12-cr-00501-001)
                    District Judge: Honorable Paul S. Diamond
                                  _____________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  January 22, 2015
                                   _____________

           Before: FISHER, JORDAN, and GREENAWAY, JR., Circuit Judges.
                         (Opinion Filed: February 19, 2015)

                                     _____________

                                       OPINION
                                    ______________




       
       This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
GREENAWAY, JR., Circuit Judge.

          Appellant Francis Aponte appeals his conviction for unlawful possession of a

firearm by convicted felon on the basis of prosecutorial misconduct. Aponte also argues

that the District Court committed plain error by sentencing him under the Armed Career

Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). For the following reasons, we will

affirm.

     I.         BACKGROUND

          On June 17, 2012, Philadelphia police officers Christopher Sarris and Todd Lewis

(the “Officers”), members of the Special Weapons and Tactics (“SWAT”) unit, heard

gunshots while on patrol. The Officers immediately observed Aponte firing a handgun in

the air while another man stood next to him watching. The Officers approached the two

men, retrieved the handgun, and arrested Aponte.

          A federal grand jury returned an indictment charging Aponte with one count of

possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). At

trial, the jury found Aponte guilty of the charged offense; he was subsequently sentenced

to 240 months’ imprisonment. This timely appeal followed.

    II.         ANALYSIS1

                a. Prosecutorial Misconduct

          “[N]on-contemporaneous objections are reviewed for plain error.” United States

v. Lee, 612 F.3d 170, 193 (3d Cir. 2010) (citing United States v. Brennan, 326 F.3d 176,

182 (3d Cir. 2003)). “For reversible plain error to exist, there must be (1) an error; (2)

          1
       The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                              2
that is plain; (3) that affects substantial rights; and (4) which seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” United States v. Tai, 750

F.3d 309, 313–14 (3d Cir. 2014) (citing Johnson v. United States, 520 U.S. 461, 466–67

(1997)). “[W]e may reverse only if we find an error in the prosecutor’s comments so

serious as to ‘undermine the fundamental fairness of the trial and contribute to a

miscarriage of justice.’” United States v. Pungitore, 910 F.2d 1084, 1126 (3d Cir. 1990)

(quoting United States v. Young, 470 U.S. 1, 16 (1985)). As Aponte concedes, he did not

make a contemporaneous objection. Accordingly, we will review for plain error.

       Aponte argues that his conviction should be vacated because the government made

improper statements during its closing argument. Specifically, Aponte contends that the

government committed misconduct by: (1) appealing to the jury’s passion by invoking

the possibility of a shoot-out and injury to Aponte, the police, or bystanders;2 and (2)

vouching for the Officers’ credibility.3 After reviewing the entirety of the government’s

closing statement, we find Aponte’s arguments lack merit.

       At trial, Aponte’s counsel argued that the Officers did not see Aponte in

       2
        Such statements included, inter alia, that Aponte owed “a debt of gratitude [to the
Officers] . . . because of the remarkable professionalism and restraint” that the Officers
exhibited. The government added that “[e]very breath that this Defendant has taken up to
this moment has been a direct result of that professionalism and extraordinary restraint by
those Officers.” App. 199.
       3
         Among other things, Aponte objects to the government’s description of the
Officers as being “highly trained” and having exercised “extraordinary restraint” and
“remarkable professionalism” throughout the encounter with Aponte. App. 199. Aponte
also objects to the government’s statement that the “Officers got it right and [] followed
their procedures,” and took Aponte “into custody in conformance with the protocols of
the Philadelphia Police Department.” Id. 202–03.

                                               3
possession of the firearm and failed to conduct a proper investigation to identify the

actual shooter. Further, his counsel claimed that the Officers arrested him on the basis of

his prior criminal history. As a result, the Officers’ credibility, training, and adherence to

protocol were relevant issues. The government’s closing argument addressed these issues

in a manner consistent with, and supported by, the evidence introduced at trial. Further,

there is no basis to conclude that any of the government’s statements undermined the

fundamental fairness of the trial. Thus, there was no plain error and Aponte is not

entitled to a new trial.4

               b. Sentencing

       Aponte next argues that the District Court committed plain error by sentencing

him under § 924(e)(1) of the ACCA.5 Aponte did not object to this issue at sentencing;

we will accordingly only review for plain error.6 See United States v. Olano, 507 U.S.


       4
         Aponte also argues that 18 U.S.C. § 922(g)(1) is unconstitutional. Aponte
acknowledges that this argument is foreclosed by Third Circuit precedent, see United
States v. Singletary, 268 F.3d 196 (3d Cir. 2001) and United States v. Shambry, 392 F.3d
631 (3d Cir. 2004). These issues are raised for preservation purposes only.
       5
        That subsection requires a sentence of a minimum of fifteen years of
imprisonment for individuals found to have violated 18 U.S.C. § 922(g) who have “three
previous convictions . . . for a violent felony or a serious drug offense, or both . . . .”
Aponte also argues that an enhanced sentence under the ACCA violates his Fifth and
Sixth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne
v. United States, 133 S. Ct. 2151 (2013). Aponte acknowledges that this argument is
foreclosed by the Supreme Court’s ruling in Almendarez-Torres v. United States, 523
U.S. 224 (1998), and raises it here for the purpose of preservation only.
       6
        At sentencing, Aponte did not dispute the fact of his conviction, but only its use
in determining his sentence:

       THE COURT: He’s not disputing the fact of the conviction, just its use in –
       MR. STOSIC: Yes, Your Honor.
                                              4
725, 731–32 (1993). Here, the presentence report (“PSR”) included three prior

convictions that potentially qualified as predicate offenses under the ACCA: two drug

offenses and one robbery conviction. “Aponte does not dispute that the two drug

offenses qualify as ACCA predicates. Nor does he dispute that a robbery would qualify

as an ACCA predicate, if proven.” Appellant Br. 30 (footnote omitted). Instead, Aponte

argues that the District Court committed plain error by relying on the PSR as the only

evidence of the robbery conviction.

      Aponte makes no attempt on appeal to establish that the District Court committed

plain error by relying on the robbery conviction in the PSR. As noted, the District Court

inquired into this issue at sentencing and was assured by Aponte’s counsel that there was

no dispute as to the underlying conviction. Moreover, Aponte does not contend on

appeal that he was not convicted of the 1996 robbery. Lastly, Aponte offers no other

basis upon which to conclude that the District Court improperly relied on the PSR as

evidence of the robbery conviction. Accordingly, we reject Aponte’s claim of error.

                             III. CONCLUSION

      For the foregoing reasons, we will affirm the judgment of conviction.




      THE COURT: – determining his sentence?
      MR. STOSIC: Yes, Your Honor.
App. 327. The government argues that in light of Aponte’s concession at sentencing, he
has waived his right to pursue this claim. However, we will assume, arguendo, that
Aponte did not waive this claim.

                                            5
