 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued February 11, 2013               Decided July 16, 2013

                        No. 11-3086

                UNITED STATES OF AMERICA,
                        APPELLEE

                              v.

         ANTONIO VALDEZ, ALSO KNOWN AS TONY,
                     APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                  (No. 1:09-cr-00281-10)


    Dennis M. Hart, appointed by the court, argued the cause
and filed the briefs for appellant.

     Peter S. Smith, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Ronald C. Machen Jr.,
U.S. Attorney, and Elizabeth Trosman, Chrisellen R. Kolb, and
John K. Han, Assistant U.S. Attorneys.

    Before: GARLAND, Chief Judge, ROGERS, Circuit Judge,
and SENTELLE, Senior Circuit Judge.

   Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
                               2

     SENTELLE, Senior Circuit Judge: Appellant Antonio
Valdez appeals his conviction for drug conspiracy and his 240-
month sentence, claiming errors by the district court, improper
closing argument by the government, and unresolved sentencing
issues. For the reasons stated below, we affirm the judgment of
the district court.

                         Background

     In 2009 law-enforcement authorities received information
that Mouloukou Toure was dealing heroin in the Washington,
D.C. area. The authorities wiretapped Toure’s phone and
conducted surveillance of his movements, noticing that Toure
interacted with appellant Antonio Valdez (known as “Tony”)
and an acquaintance of Valdez, David Diaz Garcia.
Subsequently, Valdez and several others, including Toure and
Diaz Garcia, were arrested and charged with, inter alia,
conspiracy to distribute heroin. After being arrested, Valdez and
Diaz Garcia were incarcerated in the same jail cell, at which
time Valdez allegedly threatened Diaz Garcia in an attempt to
prevent him from cooperating with authorities. Valdez was
subsequently indicted on counts of narcotics conspiracy and
witness tampering. Before trial, Valdez moved to sever the drug
conspiracy charge from the witness tampering charge. The
district court denied the motion.

    During trial, Toure and Diaz Garcia, both of whom had
pleaded guilty and cooperated with the government, testified
against Valdez.     Intercepted phone calls between the
conspirators were played for the jury, including one between
Valdez and Toure in which Toure called Valdez “Montana.”
Also introduced during trial was an arrest record of Valdez in
2004 in Maryland for distribution of cocaine. During closing
arguments the prosecutor, after reminding the jury that Toure
had called Valdez “Montana” in one of the intercepted phone
                                3

calls, made reference, over defense counsel’s objection, to: the
movie “Scar Face;” the character played by Al Pacino, Tony
Montana; and Tony Montana’s role in the drug business.
Valdez was found guilty by the jury of narcotics conspiracy but
acquitted of the witness tampering charge. At sentencing,
discussions were held concerning Valdez’s eligibility for a
safety valve exemption and/or a Smith departure as a deportable
alien. In the end, the district court sentenced Valdez to the
statutory mandatory-minimum of 240 months.

     Valdez appeals, arguing that the district court committed
two reversible errors; that the government made improper
remarks during its closing argument; and that two sentencing
issues were left unresolved.

                           Discussion

             Alleged Errors by the District Court

     Valdez asserts that the district court committed two errors,
each of which requires that his conviction be reversed. The first
error alleged by Valdez is that the district court should not have
permitted the government to introduce evidence, pursuant to
Fed. R. Evid. 404(b), of prior drug activity by Valdez unrelated
to the charges in this case. The prior drug activity concerned a
2004 conviction in Maryland for distributing cocaine. The
district court allowed the conviction to be introduced as relevant
to issues of Valdez’s knowledge and intent in the drug charge.
Valdez argues that knowledge and intent were not disputed, and
that the true use of the prior drug charge was to suggest that
Valdez was inclined to deal drugs, in violation of the
requirements of Rules 404(b) and 403.

    The second alleged error committed by the district court
was the denial of Valdez’s motion requesting that the drug
                                4

conspiracy charge and the witness tampering charge be severed
for purposes of trial. In denying the motion, the district court
determined that if there were separate trials, evidence of each
charge would be allowed in each trial for the purpose of proving
Valdez’s guilt on each charge. Consequently the court ruled that
severance was not required. Valdez argues that the drug
conspiracy verdict was impermissibly tainted by the jury’s
knowledge of the witness tampering allegation.

     Our review of both of these claims of error is for abuse of
discretion. See United States v. Pettiford, 517 F.3d 584, 588
(D.C. Cir. 2008) (a claim that a district court improperly
admitted evidence under Rule 404(b) reviewed for abuse of
discretion); United States v. Gooch, 665 F.3d 1318, 1326 (D.C.
Cir. 2012) (a district court’s denial of a motion to sever counts
reviewed for abuse of discretion). In both instances the district
court gave reasoned explanations for its decisions. In both
instances limiting instructions were given to the jury on use of
the evidence introduced. We conclude that the district court did
not abuse its discretion on either claim of error.

             Government’s Arguments to the Jury

    In the government’s initial closing argument, the prosecutor
played an intercepted call between Valdez and Toure in which
Toure addressed Valdez as “Montana.” The prosecutor then
argued, “Why Montana? Here’s the hint. What character did Al
Pacino play in the drug movie Scar Face.” Defense counsel
objected, and the district court overruled the objection. The
prosecutor continued:

         Out of all the Tonies to call Mr. Valdez, [Toure] calls
         him Tony Montana, the character in Scar Face who
         was leading the drug business there . . . [I]n this case,
         because of the association and relationship between
                                5

         Toure and Mr. Valdez, which is one of a drug nature,
         he makes a drug reference and calls him Tony
         Montana.

      Valdez argues that this comparison made by the prosecutor
was an assumption based on no evidence that was produced at
trial. Toure was never asked during his testimony about this
reference, and there was no evidence linking Toure’s calling
Valdez “Montana,” or Valdez himself, to the movie character.
Citing United States v. Maddox, 156 F.3d 1280 (D.C. Cir. 1998),
Valdez argues that it is well established that counsel in closing
argument may not refer to, or rely upon, evidence unless the trial
court has admitted it. Valdez contends that these improper
remarks by the prosecutor were especially prejudicial in that the
only direct evidence of Valdez’s membership in the conspiracy
was the testimony of Toure and Diaz Garcia, who were
contradictory to each other on their own roles and were
attempting to work off their own liabilities and sentences by
testifying for the government. Taking all of this into
consideration, Valdez argues, his guilty verdict should be set
aside and a new trial ordered.

     As we noted some time ago in United States v. Small, 74
F.3d 1276, 1282 (D.C. Cir. 1996), our decision in “Gaither [v.
United States, 413 F.2d 1061, 1079 (D.C. Cir. 1969)] has long
made clear that the prosecutor may not refer in the opening or
closing statement to evidence not admitted at trial.” Here, we
agree with Valdez that no factual basis for the prosecutor’s
comments was made during trial and that these remarks by the
prosecutor were improper.

     We review improper prosecutorial argument for substantial
prejudice. United States v. Moore, 651 F.3d 30, 50 (D.C. Cir.
2011). Our task is to “‘carefully examine the error committed
to determine whether it sufficiently prejudiced [the defendant]
                                 6

to call for reversal.’” Small, 74 F.3d at 1280 (quoting Gaither,
413 F.2d at 1079). In Small we identified three factors in
assessing prejudice: “‘the closeness of the case, the centrality of
the issue affected by the error, and the steps taken to mitigate the
effects of the error.’” 74 F.3d at 1280 (quoting Gaither, 413
F.2d at 1079). In this instance, the case against Valdez was
strong. The government’s evidence included the testimony of
Valdez’s co-conspirators that Valdez was a lower-level heroin
dealer. This testimony was corroborated by intercepted phone
calls and police surveillance. For the same reasons, the
prosecutor’s reference to “Tony Montana . . . who was leading
the drug business there” was not central to the government’s
proof of guilt. See Small, 74 F.3d at 1284. Furthermore, the
“Montana” reference was brief, made in passing by the
prosecutor during his closing argument. Finally, steps were
taken by both the prosecutor and the district court to mitigate the
effects of the prosecutor’s comments. During the government’s
rebuttal argument, the prosecutor reminded the jury that:

         Tony Montana is not my words; it’s the words of
         [Valdez’s] partner, Toure. He called him Tony
         Montana, not me . . . In the grand scheme of things,
         [Valdez is] not the big player. We never said he was.

     Additionally, the district court instructed the jury at the
beginning of trial and in its final instructions that the jury could
only consider evidence admitted into evidence at trial and that
the arguments of counsel were not evidence. We conclude that
the prosecutor’s improper remarks did not substantially
prejudice Valdez.

    But although we find no substantial prejudice in the
prosecutor’s remarks, we remind the United States Attorney of
the Supreme Court’s admonition that “[the United States
Attorney] may prosecute with earnestness and vigor – indeed, he
                                7

should do so. But, while he may strike hard blows, he is not at
liberty to strike foul ones . . . [I]mproper suggestions [and]
insinuations . . . are apt to carry much weight against the
accused when they should properly carry none.” Berger v.
United States, 295 U.S. 78, 88 (1935).

                           Sentencing

      Valdez argues that his case should be remanded to the
district court for a rehearing on sentencing. He claims that he is
entitled to a rehearing because two sentencing issues went
unresolved. The first alleged unresolved issue was whether he
was entitled to safety-valve relief pursuant to 18 U.S.C.
§ 3553(f), which permits the sentencing court to impose a
sentence below the statutory mandatory-minimum term when a
defendant, inter alia, “has truthfully provided to the Government
all information and evidence the defendant has concerning the
offense or offenses that were part of the same course of conduct
or of a common scheme or plan.” We need not consider this
issue long, since at Valdez’s sentencing hearing it was clear that
Valdez “did not successfully debrief with the government” and
“may want to debrief later on.” Sentencing Transcript, Sept. 12,
2011, at 10. Consequently, Valdez has not fulfilled all the
requirements of § 3553(f), and therefore is not entitled to safety-
valve relief. Alternatively, Valdez suggests that his trial counsel
failed to argue the safety-valve issue with appropriate vigor, and
consequently his counsel was ineffective. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). But Valdez was not
entitled to safety-valve relief, and consequently his trial counsel
was not ineffective in not arguing the issue with more vigor.
See United States v. Sayan, 968 F.2d 55, 65 (D.C. Cir. 1992)
(citation omitted) (“[A] lawyer is not ‘ineffective’ when he fails
to file a meritless motion.”).
                               8

     The second alleged unresolved issue was whether, as a
deportable alien, Valdez was entitled to a sentencing departure
under United States v. Smith, 27 F.3d 649 (D.C. Cir. 1994). In
Smith we held permissible a “depart[ure] below the range
indicated by the Sentencing Guidelines where the defendant,
solely because he is a deportable alien, faces the prospect of
objectively more severe prison conditions than he would
otherwise.” Smith, 27 F.3d at 649. Smith, then, concerned a
sentencing departure from the Sentencing Guidelines, whereas
here Valdez requested a departure from a sentence that was a
statutory mandatory-minimum. The district court correctly
opined that it did not have the discretion to award a Smith
departure of any length beneath the statutory minimum. A
district court is authorized to impose a sentence below the
statutory mandatory-minimum only when a defendant offers
substantial assistance to the government, see United States v.
Motley, 587 F.3d 1154, 1159-60 (D.C. Cir. 2009) (citing 18
U.S.C. § 3553(e)), or is eligible for safety-valve relief, see
United States v. Gales, 603 F.3d 49, 52 (D.C. Cir. 2010) (citing
18 U.S.C. § 3553(f)). As is evident from our discussion of the
first issue, Valdez does not meet those criteria. The district
court properly followed the statute by not imposing a sentence
reflecting the Smith departure.

                         Conclusion

    For the reasons stated above, the judgment of the district
court is affirmed.
