                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 09a0029p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                                 X
                           Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                  -
                                                  -
                                                  -
                                                      No. 07-6361
          v.
                                                  ,
                                                   >
                                                  -
                        Defendant-Appellant. -
 RUSSELL WIMBLEY,
                                                  -
                                                 N
                   Appeal from the United States District Court
                for the Eastern District of Tennessee at Knoxville.
             No. 06-00157-001—Thomas A. Varlan, District Judge.
                              Submitted: December 10, 2008
                          Decided and Filed: January 28, 2009
           Before: BATCHELDER, GILMAN, and SUTTON, Circuit Judges.

                                   _________________

                                        COUNSEL
ON BRIEF: Guy W. Blackwell, LAW OFFICE OF GUY W. BLACKWELL, P.C., Gray,
Tennessee, for Appellant. Debra A. Breneman, ASSISTANT UNITED STATES
ATTORNEY, Knoxville, Tennessee, for Appellee.
                                   _________________

                                        OPINION
                                   _________________

        RONALD LEE GILMAN, Circuit Judge. Russell Wimbley was charged with three
counts of distributing crack cocaine, in violation of 21 U.S.C. § 841(a), after allegedly
selling varying quantities of the drug to a police informant on three separate occasions. He
was convicted by a jury on all three counts and was sentenced by the district court to a
mandatory minimum life sentence under 21 U.S.C. § 841(b)(1)(A) as a result of both his
current and prior drug convictions. In this timely appeal, Wimbley contends that the district
court erred by twice denying his motions for a mistrial after (a) a drug task-force officer



                                             1
No. 07-6361         United States v. Wimbley                                          Page 2


testified that Wimbley had made “numerous” and “so many” sales to the informant, and
(b) the prosecutor commented that Wimbley could have introduced fingerprint or DNA
evidence if he had so chosen, but did not. Wimbley also argues that 21 U.S.C.
§ 841(b)(1)(A)’s mandatory life sentence requirement is unconstitutional. For the reasons
set forth below, we AFFIRM the judgment of the district court.

                                   I. BACKGROUND

A.      Factual background

        In July 2006, officers from the Blount County Sheriff’s Department executed a
search warrant at the home of William Jones, looking for drugs. The officers found a very
small amount of crack cocaine in the house. Jones admitted that he had been selling crack
and identified the sources of his supply. As a result, the officers opened a new investigation
in which Jones would act as a government informant, purchasing illegal drugs from his
suppliers under the close supervision and control of the officers.

        Prior to each purchase, the officers followed an established procedure of carefully
searching Jones and his vehicle to ensure that he did not possess any illegal narcotics. The
same search was repeated after each drug purchase. Jones was also fitted with a covert
recording/transmitting device and was given a cash incentive of $100 per purchase.

        In August 2006, Jones placed a recorded call to Wimbley (the defendant) during
which the officers recognized Wimbley’s “distinctive voice.” Jones agreed to meet Wimbley
at the latter’s house on Laurel Lane in Blount County. The two men met and went inside the
house, where Wimbley sold Jones crack cocaine. During the transaction, Wimbley could be
heard via Jones’s transmitting device saying “you’re killing me, I’m not making any money
on this.” After the purchase, Jones turned over 46.1 grams of crack cocaine to the officers.

        The second controlled purchase occurred in September 2006. Jones, again acting
under directions from the officers on the case, contacted Wimbley about buying more drugs.
Wimbley told him to go to a house on Belfast Street in Maryville, Tennessee. After
Wimbley didn’t show up to meet him, Jones called back and they arranged an alternative
meeting place at a house on Brown School Road in Blount County. Jones met Wimbley at
the house and attempted to purchase $2,300 worth of crack. Wimbley did not have that
No. 07-6361         United States v. Wimbley                                           Page 3


amount of crack ready for sale, but offered to make up the difference in powder cocaine. Per
his instructions from the officers, Jones said that he was interested only in crack. Jones
ultimately received 29.8 grams of crack in the purchase.

        In November 2006, Jones made a third and final controlled purchase from Wimbley.
He met Wimbley at a house on West Fulton Street in Alcoa, Tennesse and came away with
67.3 grams of crack cocaine.

        A federal grand jury indicted Wimbley on November 7, 2006 on three counts of
knowingly and intentionally distributing crack cocaine, in violation of 21 U.S.C. § 841(a).
The officers instructed Jones to persuade Wimbley to meet with him one more time on the
day following Wimbley’s indictment. After numerous attempts, Jones got Wimbley to agree
to meet him at a fast-food restaurant. When Wimbley arrived, local and federal law
enforcement officers surrounded him and placed him under arrest. Wimbley broke free and
fled, but was soon apprehended.

B.      The trial

        At Wimbley’s trial, the parties stipulated that the substances at issue were crack
cocaine, and also stipulated to the quantity of the substances as determined by laboratory
testing. The government presented the testimony of three members of the drug task force
that had arranged the controlled purchases, as well as the evidence custodian. Wimbley
presented no witnesses or other evidence.

        During the direct examination of Sergeant Shaffer, an officer with the drug task
force, the prosecutor asked if the second controlled purchase took place at the same location
as the first. Shaffer responded, “No sir. We had made numerous buys from [Wimbley] on
different occasions and it was usually different locations. He would tell different places, and
on this particular occurrence he said to come to a residence on Belfast Street.” (Emphasis
added.) Defense counsel did not raise a contemporaneous objection to Shaffer’s response.

        During Sergeant Shaffer’s cross-examination, the following exchange occurred:

        DEFENSE COUNSEL:                 You have learned that [crack cocaine is]
                                         usually packaged in plastic baggies?
        SGT. SHAFFER:                    Commonly.
No. 07-6361          United States v. Wimbley                                               Page 4


          DEFENSE COUNSEL:                And, in fact, in these cases, it’s alleged that
                                          they were sold in plastic baggies?
          SGT. SHAFFER:                   I don’t recall. I think one of the occasions
                                          that we returned it was in a piece of—we
                                          made so many buys off [Wimbley], it wasn’t
                                          always in plastic.
          DEFENSE COUNSEL:                We’re talking about three purchases. You
                                          have purchased—you’re alleged to have
                                          purchased three bags of cocaine?
          SGT. SHAFFER:                   Yes, sir.
          DEFENSE COUNSEL:                . . . And those three instances that we’re
                                          here on today were in—the drug was
                                          alleged to have been contained in those
                                          plastic bags, is that fair?
          SGT. SHAFFER:                   I specifically recall—I can’t testify to that,
                                          no, sir. There were occasions that he came
                                          back, and it was in, specifically, in his
                                          hands, is what it was given to him from.
          DEFENSE COUNSEL:                Nothing more than the cocaine, you say?
          SGT. SHAFFER:                   That’s correct.
          DEFENSE COUNSEL:                No bag?
          SGT. SHAFFER:                   That’s correct.
          DEFENSE COUNSEL:                Were there ever occasions where there was
                                          a bag?
          SGT. SHAFFER:                   Yes, sir.
(Emphasis added.) Defense counsel did not contemporaneously object to this testimony,
either.

          After returning from the mid-day recess, defense counsel moved for a mistrial,
alleging that Sergeant Shaffer had testified to “numerous buys that took place in addition to
the three” at issue. The district court held the motion for mistrial under advisement. Later
in the day, the court returned to the issue, stating in part:

          The Court, in considering this testimony, believes that at worst it is
          confusing and does not constitute grounds for a mistrial. The language as
          to “numerous buys,” if erroneously admitted, the Court would find was
          accidental and isolated.
No. 07-6361          United States v. Wimbley                                              Page 5


         The Court believes, based on a review and consideration of relevant Sixth
         Circuit jurisprudence, that a curative instruction will alleviate any confusion
         the jury might be under; and, as a result, the statement, if otherwise
         erroneous, would not be overly prejudicial.
         The district court informed the parties that it would tell the jurors upon their return
that Wimbley was on trial solely for the particular crimes charged in the indictment and that
they were to limit their consideration to those offenses. Defense counsel then asked the court
to delay its curative instruction until the close of trial. After confirming with counsel that
it had properly understood the request, the court agreed to give the instruction at the end of
the trial.

         Defense counsel stated in his closing argument that the police should have conducted
DNA or fingerprint testing on the bags of crack cocaine purchased by Jones, and that their
failure to do so was a fatal flaw in the government’s proof. He went on to tell the jury that
he was “offended that government officers would suggest that it’s too expensive . . . or that
it’s not necessary” to perform such testing. In rebuttal, the prosecutor addressed defense
counsel’s assertion as follows:

         [T]o suggest that the Government didn’t do enough to bring the proof to bear
         by virtue of not doing fingerprint analysis or DNA analysis, you heard the
         officers testify that it wouldn’t have done any good.
         What you didn’t hear is that the Defendant didn’t try to do it or have it done.
         The Defendant has the ability to have these things tested, too, for
         fingerprints and DNA. If it was such a big deal to him, why didn’t he have
         it tested, if he thought it would help him? But, no, he just wants to complain
         because we didn’t go and do these things that we don’t think are necessary
         to prove the guilt of Russell Wimbley.
Defense counsel did not object to the prosecutor’s rebuttal argument.

         The district court went on to charge the jury, cautioning repeatedly that the
government had the sole burden of proof, that Wimbley was presumed innocent, that he was
on trial only for the three crimes charged, and that Wimbley had an absolute right not to
testify or present any evidence. Neither party objected to the charge as given. After the jury
began deliberations, however, defense counsel moved for a mistrial on the grounds that the
prosecutor, in his rebuttal, had “made specific reference to Mr. Wimbley’s failure to testify.”
Defense counsel stated:
No. 07-6361         United States v. Wimbley                                            Page 6


        [M]y objection would be on counsel’s argument to the jury that we didn’t
        provide any fingerprint analysis or DNA analyis. The burden is on the
        Government, as the Court knows, and that was inappropriate . . . . He
        suggests to this jury that we had some obligation to bring this in here if we
        wanted to question anything about this case . . . .
The court denied Wimbley’s motion for a mistrial, noting that he had made no objection to
the closing argument and that, even if an objection had been raised, it would have been
meritless.

C.      The sentencing

        The Presentence Report (PSR) informed the district court that Wimbley was
responsible for 143.2 grams of crack cocaine, resulting in a base offense level of 32. But
because Wimbley had two prior felony drug convictions from 1974 and 2002, he was
classified as a career offender under the Sentencing Guidelines, resulting in an offense level
of 37. Given the total offense level of 37 and a criminal history category of VI, the
applicable Guidelines range was 360 months to life imprisonment. Wimbley was also
subject to a statutory mandatory minimum term of life imprisonment under 21 U.S.C.
§ 841(b)(1)(A) due to the amount of drugs involved and his two previous drug convictions.

        The sentencing hearing took place in October 2007. Defense counsel argued that the
mandatory minimum sentence was “far too harsh” in light of Wimbley’s history and
circumstances, but conceded that the court had no authority to impose a lesser sentence. The
district court concluded that the PSR accurately calculated Wimbley’s advisory Guidelines
range and that the statutory mandatory minimum controlled. After Wimbley admitted his
prior convictions, the court imposed the mandatory minimum sentence of life imprisonment.



                                      II. ANALYSIS

A.      Standard of review

        Wimbley argues that the district court erred on two separate occasions by failing to
grant a mistrial. We review a district court’s denial of a motion for mistrial under the abuse-
of-discretion standard. United States v. Davis, 514 F.3d 596, 613 (6th Cir. 2008). Wimbley
also argues for the first time on appeal that 21 U.S.C. § 841(b)(1)(A) is unconstitutional.
No. 07-6361          United States v. Wimbley                                           Page 7


This court does not ordinarily consider arguments not raised below, but this is a prudential
rule, not a jurisdictional one. United States v. Hayes, 218 F.3d 615, 619 (6th Cir. 2000).
Such arguments may be considered in order to address plain errors or defects affecting
substantial rights, id. at 619-20; Fed. R. Crim. P. 52(b), especially where, as here, the
argument has been fully briefed and involves a purely legal issue. United States v. Ellison,
462 F.3d 557, 560-61 (6th Cir. 2006).

B.      Sergeant Shaffer’s comments did not warrant a mistrial

        Wimbley contends that Sergeant Shaffer’s testimony indicating that the drug task
force had made “numerous” and “so many” controlled purchases from Wimbley constituted
a deliberate, intentional attempt to compromise the integrity of the trial. Following defense
counsel’s objection, the district court reviewed the transcript and found that the statements
were, at worst, confusing, and it offered to make an immediate curative instruction to the
jury. Defense counsel then requested that the court instead give the curative instructions
along with the rest of the jury instructions at the end of the trial.

        Sergeant Shaffer’s two comments were not so prejudicial as to warrant a mistrial.
Indeed, the comments might not have been prejudicial at all. Wimbley was charged with
selling crack cocaine to Jones on three separate occasions, so the jury could have easily
interpreted Shaffer’s references to “numerous” and “so many” purchases as referring to
nothing more than the charged incidents. In fact, defense counsel minimized the chance for
confusion when he clarified directly after the “so many buys” comment that “we’re talking
about three purchases.”

        Wimbley’s failure to accept the district court’s offer of an immediate curative
instruction also undercuts his argument that the comments compromised the integrity of the
trial. The court’s instructions to the jurors at the end of the trial clarified that Wimbley was
on trial only for the three crimes charged in the indictment and that each charge must be
proven beyond a reasonable doubt. Because Sergeant Shaffer’s comments could have done
no more than temporarily confuse the jury as to which purchases were being discussed, the
comments did not prejudice Wimbley. In sum, the district court did not abuse its discretion
in denying Wimbley’s motion for a mistrial based on Shaffer’s comments.
No. 07-6361         United States v. Wimbley                                           Page 8


C.      The prosecutor’s comments in rebuttal argument did not warrant a mistrial

        Wimbley next contends that he was prejudiced by the prosecutor’s argument that the
defense had the opportunity to test for fingerprints or DNA, but did not do so. He claims that
this argument violated his Fifth Amendment privilege against compelled self-incrimination.
See United States v. Robinson, 651 F.2d 1188, 1197 (6th Cir. 1981) (“A prosecutor who
attempts to define exactly the line between proper comment on . . . impeachment by
cross-examination and improper comment on [the] failure of [the] accused to testify or
present a defense does so at his peril.”) (quoting United States v. Hooker, 541 F.2d 300, 307
(1st Cir. 1976)).

        This court employs a two-step inquiry in deciding whether prosecutorial misconduct
has occurred. United States v. Francis, 170 F.3d 546, 549 (6th Cir. 1999). First, we must
determine whether a statement by the prosecutor was improper. Id. If the statement was
improper, we must next decide whether the statement was so “flagrant” as to warrant
reversal. Id.

        The district court correctly found that the prosecutor’s rebuttal argument was a
legitimate response to Wimbley’s closing argument and not an improper attempt to shift the
burden of proof. Several decisions by this court are instructive on this point. One is United
States v. Newton, 389 F.3d 631 (6th Cir. 2004), vacated on other grounds, 546 U.S. 803
(2005), where the defense asserted that the government had withheld an audiotape from the
jury. The prosecutor responded by arguing that Newton could have played the audiotape for
the jury if he deemed it crucial to the case. Id. at 635. This court held on appeal that the
prosecutor’s argument was a fair response to the defense’s assertions, which “opened the
door to [the] rebuttal.” Id. at 638. Likewise, in United States v. Hunt, 278 F. App’x 491 (6th
Cir. 2008), the defendant had insinuated in testimony that the government was deliberately
withholding evidence from the jury. Id. at 497. The prosecutor reacted by initiating the
following exchange:

        PROSECUTOR:             Mr. Hunt, you have got good attorneys, right? And
                                if you think there is other evidence you need to get
                                in, that’s kind of your job, right?
        DEFENDANT:              Yes . . . .
No. 07-6361         United States v. Wimbley                                              Page 9


        PROSECUTOR:              I don’t want you to try to suggest to the jury that
                                 there’s this other stuff no one is talking about.
Id. at 496.

        This court, addressing Hunt’s argument that the comment of the prosecutor amounted
to misconduct, held that the comment

        was invited by and responsive to defendant’s testimony. Read in context,
        it is clear that the prosecutor’s remarks were not intended to shift the burden
        of proof or otherwise mislead the jury or prejudice the defendant. They
        were intended simply to dispel the notion, suggested by defendant, that the
        government had improperly withheld information. The remarks were not
        improper and do not constitute prosecutorial misconduct.
Id. at 497; see also United States v. Clark, 982 F.2d 965, 969 (6th Cir. 1993) (holding, where
defense counsel argued that the prosecution had not presented the testimony of a law
enforcement agent because it would have been favorable to the accused, the prosecutor
properly argued, in rebuttal, that Clark could have called the agent as a witness on his own).
As in the cases cited above, the prosecutor’s comments here were a proper response to
defense counsel’s statements that the government had not performed proper testing of the
evidence.

        Because the prosecutor’s statement was not improper, there is no need for us to
evaluate whether it was flagrant. We accordingly reject Wimbley’s claim of prosecutorial
misconduct. In sum, whether viewed individually or collectively, the statements of Sergeant
Shaffer and the prosecutor underlying Wimbley’s two motions for a mistrial did not warrant
a grant of those motions.

        Wimbley also argues for the first time on appeal that the prosecutor improperly
mentioned Wimbley’s flight during the government’s rebuttal closing argument.
Specifically, the prosecutor posed the question to the jury: “[W]hy did Russell Wimbley run
away, run [500] or 600 yards away from these officers when he was told he was under arrest
for no reason?” Wimbley asserts that this statement was prejudicial and warranted a special
jury instruction. He did not, however, object to this statement below, raise it in a motion for
retrial, or request that the district court give the jury instruction that he now claims was
essential. Accordingly, we will review this claim under the plain-error standard. United
States v. Cromer, 389 F.3d 662, 672 (6th Cir. 2004).
No. 07-6361         United States v. Wimbley                                         Page 10


        This court has recognized that a defendant’s flight is evidence allowing an inference
of guilty knowledge. United States v. Jackson, 55 F.3d 1219, 1226 (6th Cir. 1995).
Wimbley has not shown that the prosecutor’s single mention of his flight—which the jurors
were already aware of due to evidence presented earlier in the trial—constituted error or
affected the proceedings in any way. This belated argument therefore lacks merit.

D.      The mandatory life sentence set forth in 21 U.S.C. § 841(b)(1)(A) is
        constitutional
        Wimbley next presents four arguments for why his sentence of life imprisonment,
as mandated by 21 U.S.C. § 841(b)(1)(A), is unconstitutional. First, he claims that
Kimbrough v. United States, 128 S. Ct. 558 (2007), which was decided after his sentence
was imposed, entitles him to a shorter sentence. Kimbrough addresses a district court’s
discretion under the Sentencing Guidelines, and explicitly allows the sentencing court to take
into account the Guidelines’ disparate treatment of crack versus powder cocaine. Id. at 564.
But Kimbrough is inapposite here because Wimbley’s sentence was set by a statutory
mandatory minimum, not the advisory Sentencing Guidelines.

        Second, Wimbley contends that the officers violated his rights by directing Jones to
purchase quantities of crack cocaine that would exceed § 841(b)(1)(A)’s 50-gram threshold
for the statutory life sentence. Wimbley reasons that this precluded the district court from
considering his unique circumstances, such as his alcohol and drug addiction, the fact that
he did not have a firearm or contraband when he was arrested, and his lack of prior
convictions for crimes of violence. He cites no caselaw to support this somewhat novel
argument, instead implying that the officers’ conduct and the resulting mandatory sentence
somehow run afoul of Kimbrough. But as stated above, Kimbrough does not apply to the
sentence in this case. Furthermore, there is no doubt that Congress has authority to limit
judicial discretion, or even eliminate it altogether, by imposing mandatory minimum
sentences. United States v. Dumas, 934 F.2d 1387, 1389-90 (6th Cir. 1990).

        Wimbley’s third argument is that § 841 violates his right to the equal protection of
the law under the Fifth Amendment because the quantity of crack cocaine that triggers the
mandatory life sentence is significantly lower than the quantity for powder cocaine, and
because the majority of the individuals convicted of offenses involving crack cocaine are
black. This court has previously considered and rejected this equal-protection argument.
No. 07-6361          United States v. Wimbley                                          Page 11


See United States v. Hill, 79 F.3d 1477, 1488 (6th Cir. 1996) (“This circuit has repeatedly
found that the challenged provision of section 841(b) does not violate equal protection
guarantees under the Fifth Amendment.”) (collecting cases).

        Finally, Wimbley claims that his life sentence is cruel and unusual punishment, in
violation of the Eighth Amendment. But a sentence is not cruel and unusual simply because
it is mandatory. Harmelin v. Michigan, 501 U.S. 957, 994-95 (1991) (holding that a
mandatory life sentence for cocaine possession is “not unusual in the constitutional sense”).
In fact, this court specifically held in United States v. John Hill, 30 F.3d 48, 50-51 (6th Cir.
1994), that the mandatory minimum life term for certain drug offenders set forth in
§ 841(a)(1)(A) does not constitute cruel and unusual punishment. Wimbley does not attempt
to distinguish his case from Hill, and his argument on this point should accordingly be
rejected. See United States v. Caver, 470 F.3d 220, 247 (6th Cir. 2006) (rejecting as
meritless an Eighth Amendment claim that failed to differentiate Hill).

        In sum, all four of Wimbley’s arguments regarding the constitutionality of his
sentence lack merit. We therefore decline to set the same aside.

                                    III. CONCLUSION

        For all of the reasons set forth above, we AFFIRM the judgment of the district court.
