                                                                [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 03-15610
                             Non-Argument Calendar                  FILED
                           ________________________       U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                 June 9, 2005
                       D.C. Docket No.    03-00008-CR-3-RV THOMAS K. KAHN
                                                                   CLERK
UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

      versus

WILLIAM JEROME OVERTON,

                                                    Defendant-Appellant
                          __________________________

            Appeal from the United States District Court for the
                       Northern District of Florida
                      _________________________
                             (June 9, 2005)
Before BLACK, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

      William Jerome Overton appeals his conviction for theft from a licensed

firearms dealer of a firearm in and affecting interstate commerce, in violation of 18

U.S.C. §§ 922(u), 924(i)(1). He argues that (1) the district court erred by denying his

requested jury instruction that Count I of the indictment was “dismissed” and instead
charging the jury that “the indictment had a Count One, but that’s a matter that’s no

longer for your consideration,” and (2) the prosecutor’s closing argument improperly

inflamed the jury and, when coupled with the district court’s failure to give a separate

curative instruction, violated his right to a fair trial. Upon thorough review of the

record, and careful consideration of the parties’ briefs, we find no reversible error and

affirm.1

        1
             We deny Overton’s motion to file a supplemental brief to argue, for the first time, that
Blakely v. Washington, __ U.S. __, 125 S. Ct. 2531 (2004), applies to his case. It is well-established
that we will not consider such arguments when they are not raised in the initial brief. See United
States v. Duncan, 400 F.3d 1297, 1299 n.1 (11th Cir. 2005) (citing United States v. Levy, 379 F.3d
1241(11th Cir. 2004) (holding that defendant waived his Blakely claim as issue on appeal by failing
to raise it in his initial brief); United States v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000) (“Defendant
abandoned the [Apprendi] indictment issue by not raising the issue in his initial brief.”); United
States v. Ford, 270 F.3d 1346, 1347 (11th Cir. 2001) (“[O]ur well established rule is that issues and
contentions not timely raised in the briefs are deemed abandoned.”); United States v. Curtis, 380
F.3d 1308 (11th Cir. 2004) (declining to permit a supplemental brief raising a Blakely issue for the
first time)).

         We note that Overton not only failed to raise this issue in a timely manner on appeal, but also
failed to raise the issue in the district court or at sentencing. Therefore, even if the issue had been
adequately raised on appeal, we would review it only for plain error, which we correct only where
(1) there is an error; (2) the error is plain or obvious; (3) the error affects the defendant’s substantial
rights in that it was prejudicial and not harmless; and (4) the error seriously affects the fairness,
integrity, or public reputation of a judicial proceeding. See United States v. Chisholm, 73 F.3d 304,
307 (11th Cir. 1996). Overton cannot satisfy the third prong, which requires him to show that the
Blakely error affected his substantial rights, a standard that “almost always requires that the error
must have affected the outcome of the proceedings below.” See United States v. Curtis, 400 F.3d
1334, 1336 (11th Cir. 2005) (citing United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir.
2005)). “[I]n applying the third prong, we ask whether there is a reasonable probability of a different
result if the Guidelines had been applied in an advisory instead of binding fashion by the sentencing
judge.” Rodriguez, 398 F.3d at 1301. Overton has not argued, and our own review of the record
does not reveal, that the district court would have imposed a lesser sentence, even if it could have.
On this record, Overton has not shown a reasonable probability of a different result, within the
meaning of Rodriguez. Thus, even if he had properly raised this issue, we would not find reversible
error.

                                                    2
      The district court has “broad discretion in formulating a jury charge as long as

the charge as a whole is a correct statement of the law.” United States v. Schlei, 122

F.3d 944, 969 (11th Cir. 1997). We review a district court’s refusal to give a

proposed jury instruction for abuse of discretion. See United States v. Puche, 350

F.3d 1137, 1150 (11th Cir. 2003). A defendant is entitled to appellate relief on this

basis only where (1) the rejected instruction was substantively correct; (2) the actual

charge to the jury did not substantially cover the proposed instruction; and (3) the

failure to give the requested instruction substantially impaired the defendant’s ability

to present an effective defense. See United States v. Zlatogur, 271 F.3d 1025, 1030

(11th Cir. 2001), cert. denied, 122 S. Ct. 1338 (2002).

      To find prosecutorial misconduct, we apply a two-part test: “‘(1) the remarks

must be improper, and (2) the remarks must prejudicially affect the substantial rights

of the defendant.’” United States v. Gonzalez, 122 F.3d 1383, 1389 (11th Cir. 1997)

(quoting United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir. 1991)). “A

defendant’s substantial rights are prejudicially affected when a reasonable probability

arises that, but for the remarks, the outcome [of the trial] would be different.” United

States v. Hall, 47 F.3d 1091, 1098 (11th Cir. 1995).

      The relevant facts are these. On January 22, 2003, Overton was charged with

possession of a firearm in and affecting interstate commerce by a convicted felon, in

                                           3
violation of 18 U.S.C. § 922(g)(1) (Count I); theft from a licensed firearms dealer of

a firearm in and affecting interstate commerce, in violation of 18 U.S.C. § 922(u)

(Count II); and possession of a stolen firearm in and affecting commerce, in violation

of 18 U.S.C. § 922(j) (Count III). Without objection from the government, the district

court dismissed Count I of the indictment after agreeing that Overton was not a

“convicted felon” for the purposes of § 922(g) and Overton proceeded to trial on the

remaining two counts.

      The government presented the following evidence, inter alia, against Overton.

On November 21, 2002, at approximately 9:30 p.m., Deputy Sheriff Joseph Dixon of

the Escambia County Police Department was on routine patrol when he heard an

alarm sounding. After he had determined that the alarm was emanating from Jack’s

Super Pawn on the corner of “S” Street and Fairfield Drive, he parked his car along

the west side of the building and subsequently observed Overton walk around the

corner of the building. Overton was wearing blue jeans, a black T-shirt, black shoes,

a black hat, a grayish jacket, and holding a pair of black leather gloves in his hand.

Deputy Dixon approached Overton, who was standing directly outside the store

where the alarm was sounding, and asked Overton if he worked at the store. Overton

gave no response. Deputy Dixon then asked him if he saw anybody else in the area,

and if he knew why the alarm was sounding. Overton responded that he did not know

                                          4
anything and that he was “coming from Popeye’s,” which was in the same area of the

pawn shop. Deputy Dixon noticed that Overton was sweating, breathing heavily, his

clothes were “especially dirty,” and that his hat had a pinkish-yellow fiber on it.

Subsequent analysis determined that the fiber on his clothing, including his jeans,

shirt, and hat, was insulation.

      Soon after, other deputies and the manager of Jack’s Super Pawn arrived at the

scene. Once inside the store, the officers observed that the access panel from the attic

into the store had been forced open. The officers found a crowbar (that did not

belong to the pawn shop) just beneath the attic access area. The deputies also

observed pink and yellow insulation fibers, similar to the substance found on

Overton’s clothing, on the floor of the store, just below the opened access area of the

attic. Subsequent investigation revealed that there was a three- or four-foot hole in

the roof of the building, and that the only way to access the attic from the hole in the

roof was by crawling through insulation.          A microanalyst from the Florida

Department of Law Enforcement testified that the insulation found in the attic and on

the floor of the store and that found on several items of Overton’s clothing were the

same type.

      Located just below the attic opening was a three-gun rack with two firearms

missing from it and one firearm laying on the floor beneath it. The owner of Jack’s

                                           5
Super Pawn was federally licensed to sell firearms. A rifle and a shotgun, both items

from the pawn store’s inventory, were discovered outside of the store. The firearms

previously had been placed on the gun rack located just below the attic opening. Jack

Khorram, the owner of Jack’s Super Pawnshop, testified that he had seen Overton in

the store approximately two weeks prior to the burglary and that Overton had been

in the store for a “tremendous” period of time, walking from one end of the store to

the other. Overton told Khorram that he was “just looking.”

      Overton testified in his own defense. According to his testimony, on the night

of November 21, 2002, he was walking along Pace Street after having attended

church when a van pulled up and the driver called out his full name. The van

approached Overton with its side door open. Overton did not recognize the

individuals in the van. As the van passed Overton, the individuals “patted [him]

down from head to toe to [his] shoes” with insulation. They then ordered Overton to

walk “up Pace, down Fairfield to approximately S Street,” the intersection where

Jack’s Super Pawn was located. Overton testified that as soon as he crossed the street

in front of Jack’s Super Pawn, the alarm “went off,” and the van then “pulled off.”

After Overton testified, the defense rested.

      In its closing argument, the government argued the following:




                                          6
      [I]n order for the defendant’s version to be true, these men, these
      mystery men, had to break in, pull insulation out and go find someone
      to frame for this job while someone else is committing the rest of the
      robbery. I suggest to you that that’s ridiculous, that the only person who
      was there at this crime was the defendant, and that it’s virtually an insult
      to your intelligence to believe otherwise.

The government also argued that Overton knew where to pry a hole in the roof of the

pawn shop in order to steal the three firearms from the gun rack based on the

observations he had made during his previous lengthy visit to the pawn shop. The

government’s theory of the evidence, as argued to the jury, was that Overton crawled

through the attic to the attic access panel, reached down and removed two guns from

the gun rack, and then attempted to steal the third gun. The prosecutor argued: “If

he had just been satisfied with those two guns, he probably would have gotten away

with it. And he may still get away with it. It’s up to you.”

      Defense counsel then objected, arguing that the government’s comments that

“its virtually an insult to your intelligence” and “he may still get away with it” were

improper. Defense counsel then requested that the district court “remind[] the jury

that it’s up to them to make a decision as to what the evidence shows.” The district

court sustained the defense’s objection as to the comment that “he may still get away

with it,” but did not give the requested instruction. The district court overruled the

objection as to the “insult to your intelligence” comment, stating “I don’t think there



                                           7
is anything that I can instruct them that would be helpful to the jury as a matter of fact

or as a matter of law, so, request is denied.” Defense counsel then moved for a

mistrial, which also was denied. The government then continued with its closing

argument, asserting that Overton reached for the third firearm with his crowbar, the

gun rack fell to the floor taking the crow bar with it, Overton then jumped off the

roof, walked around the building right into the area where Deputy Dixon was located.

      The district court submitted a redacted indictment for the jury’s review during

its deliberations. The indictment redacted “Count One” and set forth “Count Two”

and “Count Three.” The defendant requested that the district court instruct the jury

that Count One had been “dismissed.” Over the defendant’s objection the district

court instead instructed the jury as follows:

      You will also have with you a copy of the indictment and the indictment
      shows the two charges, Count Two and Count Three. Now, I note that
      there is no Count One in this indictment. The original indictment had
      a Count One, but that’s a matter that’s no longer for your consideration.
      It’s not a matter that’s being tried before you, and the only two charges
      for your consideration at this trial.

The jury subsequently found Overton guilty as to both Counts II and III. After the

verdict, district court dismissed Count III as duplicitous of Count II. On Count II, the

district court sentenced Overton to a 66-month term of imprisonment, which was to




                                            8
run consecutive to an existing Florida state sentence related to the robbery. This

appeal followed.

       Overton first argues that the district court abused its discretion by denying his

request to instruct the jury that Count I of the indictment had been “dismissed” and

instead stating that “the indictment had a Count One, but that’s a matter that’s no

longer for your consideration.” Overton urges that this instruction, coupled with the

court’s decision to use a redacted copy of the indictment with “Count Two” and

“Count Three” as the listed offenses for the jury’s review, gave the misleading

impression to the jury that Count I was still at issue or that he had pled guilty to it

prior to trial.

       The district court has “broad discretion in formulating a jury charge as long as

the charge as a whole is a correct statement of the law.” United States v. Schlei, 122

F.3d 944, 969 (11th Cir. 1997). We assume “that a jury follows the instructions given

to it by the district court.” United States v. Bennett, 368 F.3d 1343, 1351 (11th Cir.

2004). We will not reverse a conviction based on a jury charge “‘unless the issues of

law were presented inaccurately, or the charge improperly guided the jury in a

substantial way as to violate due process.’” United States v. Anderson, 326 F.3d

1330, 1330-31 (11th Cir. 2003) (quoting United States v. Moore, 253 F.3d 607, 609

(11th Cir. 2001)). Moreover, the district court is “not bound to use the exact words

                                           9
and phrasing suggested by counsel in its charge.” United States v. Russell, 717 F.2d

518, 521 (11th Cir. 1983).

        Although Overton’s requested instruction that Count I was “dismissed” was a

correct legal statement, the district court nonetheless substantially covered the

requested charge (and in so doing correctly stated the law) by instructing the jury to

“not worry about” Count One. Moreover, the court accurately instructed the jury,

“The only counts that are for your consideration are Counts Two and Three, the only

two charges for your consideration in this trial.” Because the jury is presumed to

have followed the district court’s instructions, we can find no abuse of the district

court’s broad discretion on this issue.2

        We are likewise unpersuaded by Overton’s contention that the prosecutor’s

comments during closing argument -- that “he may still get away with it. It’s up to

you” -- and the district court’s refusal to give his requested curative instruction,

violated his due process and fair trial rights. To demonstrate that substantial rights

have been prejudiced, Overton must show that “there is a reasonable probability that,


        2
          Overton’s reliance on our decision in United States v. Artrip, 942 F.2d 1568 (11th Cir.
1991), is misplaced. In Artrip, the district court’s instruction “failed to provide guidance” to the jury
concerning its consideration of certain evidence. We found that this failure resulted in the
modification of an essential element of the charged crime and created a “substantial likelihood” that
Artrip was convicted of a crime other than the crime charged in the indictment. Id. at 1570-71.
Here, we can find no such failure to provide guidance and Overton does not argue (nor can we find)
a modification of essential elements.

                                                   10
but for the remarks, the outcome would have been different.” United States v.

Adams, 74 F.3d 1093, 1097 (11th Cir. 1996). “[A] criminal conviction is not to be

lightly overturned on the basis of a prosecutor’s comments standing alone, for the

statements or conduct must be viewed in context; only by doing so can it be

determined whether the prosecutor’s conduct affected the fairness of the trial.”

United States v. Young, 470 U.S. 1, 11, 105 S. Ct. 1038, 1044 (1985); see also United

States v. Hernandez, 145 F.3d 1433, 1438 (11th Cir. 1998) (in assessing the

prejudicial impact of the comments, the Court evaluates them in the context of the

trial as a whole and considers their probable impact on the jury).

       Viewing the record as a whole and the comment in its context, the prosecutor’s

argument that Overton “may still get away with it. It’s up to you,” did not prejudice

Overton’s substantial rights. First, the district court sustained the defense objection

to this comment. Before opening argument, the court instructed the jury that it would

have to rule on objections, and that regardless of how the court ruled, the jurors

should not be influenced by the court’s decision on an objection.3 Second, the court

twice instructed the jury -- once before opening arguments and another time before



       3
          The court further explained: “if I sustain an objection, for example, that means that’s an
improper question that should not be asked. Don’t in any way infer from that that I have any feelings
about one side or the other. And don’t speculate on what answer the witness might have given if I
had allowed the witness to answer the question itself.”

                                                 11
closing arguments -- that what the lawyers stated was not evidence, and that the jury

was to base its verdict on only the evidence presented in the case. The jury is

presumed to follow the district court’s instructions. See Bennett, 368 F.3d at 1351.

Simply put, Overton has not met his burden to show that there is “a reasonable

probability . . . that, but for the remarks,” the outcome of his trial would be different,

and thus, he has not shown prejudice to his substantial rights. See Hall, 47 F.3d at

1098. Accordingly, we affirm.

      AFFIRMED.




                                           12
