                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4768


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ABDALLAH HUSSEIN FAKIH, a/k/a Abdullah Fakih,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:08-cr-00021-RLV-DCK-4)


Argued:   March 23, 2011                  Decided:   April 19, 2011


Before MOTZ and WYNN, Circuit Judges, and Ronald Lee GILMAN,
Senior Circuit Judge of the United States Court of Appeals for
the Sixth Circuit, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Matthew Segal, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.    Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.    ON BRIEF: Claire J. Rauscher,
Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC.,  Asheville,   North  Carolina,  Cecilia   Oseguera,  Emily
Marroquin, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina, for Appellant.     Anne M. Tompkins,
United States Attorney, Adam Morris, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

        A jury convicted Abdallah Hussein Fakih of bank robbery and

aiding     and    abetting           the   same,   in     violation         of    18     U.S.C.

§§ 2113(a)       and    2,     and    of   armed   bank    robbery      and      aiding       and

abetting the same, in violation of 18 U.S.C. §§ 2113(d) and 2.

The   district         court      sentenced    Fakih      to    a   235-month          term    of

imprisonment on each count, to be served concurrently, followed

by    three      years       of      supervised     release.            Fakih          appeals,

challenging both his convictions and sentence.                          For the reasons

that follow, we affirm.



                                              I.

      On   September         26,     2007,    Demond     Dixon      (“Demond”),         William

Donald Dixon (“Donnie”), and Anthony Fleetwood robbed the Bank

of America in Denver, North Carolina.                          Each man, armed with a

gun, entered the premises, held the tellers and customers at

gunpoint, threatened to kill them, robbed the bank, and left.

The   police     spotted       the     robbers,    who    in     response        ditched      the

money and        some    belongings        (including     a     pair   of    gloves),         and

fled.      The three robbers subsequently broke into the house of

Jimmy Woods, forced him at gunpoint into his van, and attempted

to escape.        After Mr. Woods somehow jumped out of the van, the

robbers crashed and the police then apprehended them.



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       All    three        robbers     testified          to    Fakih’s       substantial

involvement in the crime.              Indeed, all three testified that the

robbery was Fakih’s idea.             According to them, Fakih, who in 2007

worked with Demond at a Fuel Pizza Café, proposed to Demond and

his brother, Donnie, that they all rob a bank.                                    Fakih held

himself      out    as     having     particularized           knowledge          of     banks,

explaining that his father had worked at a bank.

       On the day prior to the robbery, Fakih picked Donnie up at

a     Charlotte      bus      terminal     after          Donnie     rode         down       from

Philadelphia.         Fakih put Donnie up in a hotel room for the

night.        At    approximately        the       same     time,     Demond           and   his

girlfriend, Eurania Young, picked Fleetwood up in Georgia and

they    drove      together      to   North       Carolina     to    join    the        others.

Fleetwood’s girlfriend, Valnissi Jackson, also met up with the

group.

       Shortly      before    the     robbery,      Fakih,     the        Dixon    brothers,

Fleetwood, Young, and Jackson met at a BP Mini Mart in Denver,

North Carolina.            The Government introduced surveillance video

showing Fakih’s BMW and Jackson’s gray PT Cruiser parked at the

gas    station.          While    there,      anticipating          the    eventual          bank

robbery, Fakih said to the group:                  “Are y’all ready to do this?”

       Then, Fakih left the group and went to case the bank.                                   He

entered the bank at 10:51 a.m., fumbled with his wallet for less

than a minute, and then left.                  The bank tellers, who testified

                                              4
at trial, did not recognize Fakih as a regular customer and did

not speak to him.            They viewed his behavior as odd, but did not

regard it as presaging a bank robbery.

       After casing the bank, Fakih returned to the group waiting

at the    BP    Mini       Mart   and    gave       the    men    the   “green      light”     to

proceed with         the    robbery,      specifically           noting     the    lack   of    a

security guard on the bank’s premises.                           The plan was for Young

and Jackson to drop off the Dixon brothers and Fleetwood at the

bank, and, after they robbed it, Fakih would pick them up.                                   The

robbery occurred ten minutes after Fakih cased the bank.

       As the designated getaway driver, Fakih waited in his car

behind the bank.             There, he encountered a police officer who

asked if Fakih had seen anything suspicious; Fakih answered no.

Fakih then drove away and never picked up the robbers, leaving

them without a getaway driver.                        The three robbers were thus

forced to run away from the bank; after they did so, they broke

into   Mr.    Woods’s       house,      Demond      then     called     Fakih,      but   Fakih

purported      to    renounce     his     involvement            in   the   enterprise       (“I

don’t know what you’re talking about”) and hung up on Demond.

       When    the    police      arrested          Fakih,       he   waived      his   Miranda

rights and agreed to answer questions related to the incident.

He confirmed many of the facts described above (including his

encounter with the police officer in the bank parking lot during

the robbery) but did not admit to casing the bank or to any

                                                5
other involvement in the robbery.       Fakih proceeded to trial on

the two counts of bank robbery and assault in the commission of

a bank robbery.    After a two-day trial, a jury deliberated for

forty-minutes and then found Fakih guilty of both crimes.             The

district   court   sentenced   Fakih   to   two   235-month   terms   of

imprisonment, to run concurrently.



                                 II.

     Fakih raises two challenges to his convictions.          We reject

both.

                                  A.

     First, Fakih contends that the district court should have

granted his motion for a mistrial after the prosecutor drew the

jury’s attention to Fakih’s pre-trial detention.

     Fakih premises this challenge on the following questions

that the prosecutor asked Demond Dixon on redirect examination:

     Q:    Okay.   Before that time [i.e. when Demond first
           mentioned Fakih to the police], were you ever
           housed in the jail with [Fakih]?

     A:    Yes, I was in Lincoln County with him.

     Q:    So he was already under arrest.

     A:    They came and got him, I think, a week after we
           got arrested.

     Q:    So he was physically in jail in Lincoln County
           before you even --



                                  6
At     this   point,   defense    counsel        objected    and   moved     for     a

mistrial, which the court denied.                 Instead, the court offered

the     defense    a   curative   instruction,        which    defense      counsel

declined, fearing that it would draw undue attention to Fakih’s

pre-trial custody.       Ultimately, the prosecutor promised to avoid

this line of questioning in the future and, in fact, did so.

Fakih now seeks reversal on the ground that the district court

erred in denying his motion for a mistrial.

       We review the denial of a motion for mistrial for abuse of

discretion.       United States v. Stockton, 349 F.3d 755, 762 (4th

Cir. 2003).       To determine abuse of discretion, we consider:                   (1)

whether the prosecutor’s remarks were improper and (2) whether

the     remarks    “prejudicially        affected    defendant’s     substantial

rights so as to deprive [him] of a fair trial.”                    Id.     Since we

have    previously     held   that   a    prosecutor’s      questions      about     a

defendant’s       pre-trial   custody     are    “clearly     improper,”     United

States v. Bennett, 984 F.2d 597, 608 (4th Cir. 1993), we proceed

to evaluate prejudice.

       In assessing prejudice, we look to:                  “(1) the degree to

which the prosecutor’s remarks have a tendency to mislead the

jury and to prejudice the accused; (2) whether the remarks were

isolated or extensive; (3) absent the remarks, the strength of

competent     proof    introduced    to       established   the    guilt    of     the

accused; and (4) whether the comments were deliberately placed

                                          7
before the jury to divert attention to extraneous matters.”                      Id.

(quoting United States v. Harrison, 716 F.2d 1050, 1052 (4th

Cir. 1983)).

       As to the first prong, the degree of prejudice resulting

from a single remark about a defendant’s custody is “minimal.”

Bennett, 984 F.2d at 608.          This is so because “[i]n most trials,

it is apparent that the defendant was arrested for the crime

with   which    he    has   been   charged.       The   majority   of    criminal

prosecutions     are   initiated    by   an   arrest.”      United      States   v.

Harris, 703 F.2d 508, 512 (11th Cir. 1983).

       With respect to the second prong, Fakih concedes that the

improper remarks were not “extensive,” but still contends they

were not isolated.          See Appellant’s Br. at 23.        He is mistaken.

In   Bennett,    we    considered    a   remark    about   pre-trial      custody

“isolated” where the “government never raised the matter again

and did not refer to it in closing argument.”                984 F.2d at 608.

This holding compels the conclusion that the improper remarks in

this case were also isolated, especially because the prosecutor

promised not to ask another question about Fakih’s pre-trial

custody and even offered to ask a “final question” to “get away




                                         8
from” the subject.      The prosecutor never again mentioned Fakih’s

custody, not even in closing argument. *

       As to the third prong, the Government offered overwhelming

evidence to support the charges against Fakih.                Specifically, it

offered the following evidence:               (1) four witnesses (Demond,

Donnie, Fleetwood, and Young) testified to Fakih’s substantial

involvement in the crime; (2) surveillance footage showed Fakih

at the bank and showed his car at the BP Mini Mart with the car

that   dropped   the   robbers   off;       (3)   phone   records   showed   that

Fakih called Jackson about 50 times; (4) a pair of gloves found

in Fleetwood’s pants matched gloves found in a box in Fakih’s

car; (5) a police officer testified as to his encounter with

Fakih near the bank’s premises at the time of the robbery; and

(6) Fakih himself admitted to authorities his presence at the

scene of the robbery at the time it occurred and his meeting

with the Dixon brothers at the BP Mini Mart.



       *
       At oral argument, Fakih’s counsel suggested that the
prosecutor elicited an additional reference to Fakih’s pre-trial
custody.    The record does not bear this out.         When the
prosecutor asked Fleetwood whether he had “any contact with
[Fakih] since the day of the bank robbery,” Fleetwood replied:
“No.   They had us in the same pod together, though.”        The
prosecutor subsequently clarified his question:   “Well, I mean
outside.” Fleetwood responded, “Oh, no, sir.” Fakih failed to
object to Fleetwood’s answer at trial and it is clear that this
remark -- initiated by Fleetwood as an after-thought to his
answer to a proper question from the prosecutor -- was not a
product of the prosecutor’s improper questioning.


                                        9
     Finally, as to the fourth prong, the prosecutor did not

deliberately attempt to divert attention to extraneous matters.

Rather,   the   prosecutor    sought    to    rebut   the   defense’s   cross-

examination by suggesting that Demond may have fabricated his

story together with Fleetwood and his brother Donnie.                     Thus,

this prong also weighs in favor of the Government.

     Accordingly,     the     district       court    did   not   abuse     its

discretion when it denied Fakih’s motion for a mistrial.

                                       B.

     Fakih’s second challenge to his conviction rests on the

contention that the district court plainly erred in permitting

the prosecutor to mention the box of gloves found in Fakih’s car

without admitting the box into evidence.

     At oral argument, however, the Government alerted us to an

exhibit list showing that the prosecutor had admitted as exhibit

nine a “box of blue latex gloves” found in Fakih’s car on the

second day of trial.        Thus, Fakih’s argument rests on a factual

premise -- that the prosecutor failed to admit the box of gloves

into evidence -- that was proven false.

     Moreover, even if the prosecution had failed to introduce

the box of gloves into evidence, Fakih’s argument would fail.

The officer who searched Fakih’s car testified that he found a

box of rubber gloves in the trunk, and Fleetwood testified that

he obtained the gloves from the inside of Fakih’s car.                    It is

                                       10
not error for a prosecutor to refer to evidence (including a box

of gloves) in closing argument where witnesses have testified as

to its existence and location.



                                    III.

     Fakih next contends that the district court procedurally

erred in sentencing him.      He argues that the court erred in two

respects.

                                     A.

     The Presentence Report (PSR) states that Donnie Dixon told

authorities “Fakih had two guns, a 9 mm and a .45 Ruger, and

that he gave them to Demond” Dixon before the robbery.                  At

sentencing, the district court relied on this fact, as supported

by the PSR, to find that it was reasonably foreseeable to Fakih

that the robbers, in attempting to escape, would injure, abduct,

and carjack Mr. Woods.

    Fakih    now   asserts   that   the    district   court   procedurally

erred by crediting the finding that Fakih “armed” the robbers in

the PSR.    He cites our holding in United States v. Carter that,

“[p]rocedural errors include . . . selecting a sentence based on

clearly erroneous facts.”       564 F.3d 325, 328 (4th Cir. 2009)

(quoting Gall v. United States, 552 U.S. 38, 51 (2007)).                He

contends that the finding that he armed the robbers was clearly



                                    11
erroneous   because     no   evidence     at    trial    supported      it.     The

argument fails.

     Fakih did not offer any evidence to rebut the finding in

the PSR.    Instead, he objected, in very general terms, to “those

paragraphs that do not comport with the evidence at trial.”                      A

“mere objection to the finding in a presentence report is not

sufficient.”      United States v. Terry, 916 F.2d 157, 162 (4th

Cir. 1990).      Rather, the “defendant has an affirmative duty to

make a showing that the information in the presentence report is

unreliable, and articulate the reasons why the facts contained

therein are untrue or inaccurate.”             Id.

     Here, Fakih lodged a “mere objection” and failed to rebut

this finding at sentencing with evidence of its unreliability or

inaccuracy.      Accordingly, we cannot conclude that the sentencing

court’s finding is clearly erroneous.                   Moreover, even though

evidence at trial did not show that Fakih armed the robbers, the

absence of evidence at trial does not in itself establish that

Fakih did not arm them.           Because Fakih was silent as to the

accuracy    of   this   finding   (which       was   based   on   the    PSR)    at

sentencing, the district court could accept it as undisputed.

See United States v. Revels, 455 F.3d 448, 451 n.2 (4th Cir.

2006) (where defendant is silent on a specific fact supported in

the PSR, such fact is undisputed).



                                     12
                                    B.

     Finally,     Fakih      contends     that      the   district      court

procedurally erred by enhancing his sentence by two points for

the carjacking of Mr. Woods.       See U.S.S.G. § 2B3.1(b)(5).

     Of course, the sentencing judge may enhance a defendant’s

sentence for “all reasonably foreseeable acts and omissions of

others   in    furtherance    of   the    jointly     undertaken     criminal

activity.”     U.S.S.G. § 1B1.3(a)(1)(B).        Fakih does not dispute

that “others” carjacked Mr. Woods “in furtherance of the jointly

undertaken criminal activity.”          Thus, Fakih’s argument rests on

whether the carjacking was “reasonably foreseeable” to him.

     At sentencing, the district court explained its rationale

for finding that the carjacking was reasonably foreseeable to

Fakih as follows:

     The acts that occurred in relation to the getaway were
     completely foreseeable and exactly what you would
     expect of people trying to flee a bank with money.
     And   to  the   extent  they   became  involved   in  a
     carjacking, it may be that the defendant’s failure to
     show up to take them away from the scene at the bank
     might have contributed to that, but that would be
     speculation.   The fact is that their activities were
     directly foreseeable to someone who fostered, set up,
     aided and abetted and participated in a robbery by
     bringing together the various participants, seeing to
     its they were delivered to the scene and arming them.

     We review a “reasonable foreseeability” determination for

clear error.     United States v. Banks, 10 F.3d 1044, 1057 (4th

Cir. 1993).      Fakih contends that it was clear error for the


                                    13
court to rely on “unsupported assumptions about bank robberies

in general, as opposed to relying on the particulars of this

case.”     Appellant’s Br. at 32.

       Fakih bases his argument on a single case, United States v.

Atwater,    272    F.3d       511   (7th    Cir.    2001).      There,         the    Seventh

Circuit vacated a sentence where the district court rested a

reasonable-foreseeability finding solely on a false intuition:

“I have never heard of a bank robbery without a firearm.”                                   Id.

at 512.     In vacating the sentence, the court reasoned that, in

fact,    many     bank    robberies        occur    without     a    firearm         and    the

district court needed to rely on something particular about the

bank     robbery         in    question       to      support        its        reasonable-

foreseeability finding.             Id.

       Fakih’s case is a far cry from Atwater.                      Here, the district

court supported the reasonable-foreseeability finding based on

the particular circumstances of Fakih’s involvement in this bank

robbery, not bank robberies in general.                       Thus, the court found

that Fakih “set up” and “fostered” the bank robbery as well as

“delivered”       and    “armed”     the    other    bank     robbers.          We    see    no

“unsupported       assumptions            about     bank     robberies”             from    the

sentencing        judge’s       particularized             assessment          of     Fakih’s

orchestration of the robbery and participation in it.                               Moreover,

since    Atwater,       the    Seventh     Circuit    has     upheld       a    reasonable-

foreseeability finding of a co-defendant’s carjacking where the

                                             14
district court relied on the defendant’s substantial involvement

in the conspiracy.        See United States v. Williams, 553 F.3d

1073,   1082   (7th    Cir.   2009).        This   case   is   much   closer   to

Williams   than   to    Atwater.       Accordingly,       we   reject    Fakih’s

challenges to his sentence.



                                       IV.

     For the foregoing reasons, the judgment of the district

court is

                                                                        AFFIRMED.




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