     Case: 09-30533     Document: 00511252370          Page: 1    Date Filed: 10/04/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           October 4, 2010
                                     No. 09-30533
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

GREGORY L. YOUNG, also known as Gregg Young,,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 5:08-CR-309-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Gregory L. Young appeals his sentence following his conviction for
possession of cocaine with intent to distribute. Young was sentenced to 240
months of imprisonment and eight years of supervised release. The sentence
represented both an upward departure under the Sentencing Guidelines and an
upward variance from the advisory guidelines imprisonment range, which
originally was 120 to 121 months of imprisonment.



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                No. 09-30533

      Young contends that the Government committed prosecutorial misconduct
because its sentencing memorandum contained inaccurate information and
misrepresented the facts concerning Young’s prior involvement in criminal
activity. “Improper prosecutorial comments constitute reversible error only
where the defendant’s right to a fair trial is substantially affected.” United
States v. Stephens, 571 F.3d 401, 407-08 (5th Cir. 2009). In analyzing a claim of
prosecutorial misconduct, this court first determines whether the prosecutor
made an improper remark and, if so, then assesses whether the prosecutor’s
impropriety prejudiced the defendant. Id. at 408. The Government does not
commit prosecutorial misconduct where it merely makes a vigorous plea for law
enforcement or states its contentions regarding the conclusions that should be
drawn from the evidence. See United States v. Thompson, 482 F.3d 781, 786 (5th
Cir. 2007); United States v. Caballero, 712 F.2d 126, 131-32 (5th Cir. 1983).
      Young’s labeling of the Government’s sentencing memorandum as
prosecutorial misconduct is unavailing because he cannot show that he was
prejudiced by the memorandum. See Stephens, 571 F.3d at 408; United States
v. Fogg, 652 F.2d 551, 559 (5th Cir. 1981).      First, the memorandum was
submitted to and reviewed by the district court judge rather than a jury. See
Fogg, 652 F.2d at 559. The judge reviewed the documentary evidence submitted
as exhibits to the memorandum and therefore was able to independently
determine the weight that should be afforded to the Government’s assertions in
its memorandum. Additionally, the district court was advised at sentencing of
Young’s interpretations of the evidence, as Young disputed the accuracy of the
sentencing memorandum through a chronological, page-by-page discussion of the
memorandum. The judge acknowledged that he was not permitted to consider
incidents that did not result in a conviction in deciding to depart upward and
made no mention of such incidents in his reasons for the upward departure.
Furthermore, even though “prior criminal conduct not resulting in a conviction
may be considered by the sentencing judge” when imposing an upward variance

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                                No. 09-30533

pursuant to 18 U.S.C. § 3553(a), United States v. Lopez-Velasquez, 526 F.3d 804,
807 (5th Cir. 2008), the judge also made no mention of such incidents when it
imposed the upward variance.       It is doubtful that any impropriety in the
Government’s sentencing memorandum made any difference in the severity of
the sentence imposed. See Fogg, 652 F.2d at 559.
      Young also contends that the district court erred in imposing the sentence
because the district court relied on its personal opinion that Young had received
too much leniency from prior courts. According to Young, the district court was
required to rely on fact-specific reasons and failed to do so. “[T]he sentencing
judge is in a superior position to find facts and judge their import under
§ 3553(a) with respect to a particular defendant.”            United States v.
Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). Here, the district court
provided individualized, case-specific reasons for imposing the 240-month
sentence, and Young has not shown that the sentence is unreasonable. See Gall
v. United States, 552 U.S. 38, 50 (2007).
      AFFIRMED.




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