                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                    No. 11-2545
                                 ________________

                          UNITED STATES OF AMERICA

                                          v.

                               COREY CRAWFORD,

                                            Appellant
                                 ________________

                     Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                    (D.C. Criminal Action No. 2-10-cr-00059-004)
                     District Judge: Honorable Harvey Bartle, III
                                 ________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 18, 2012


        Before: AMBRO, GREENAWAY, Jr., and TASHIMA, * Circuit Judges


                         (Opinion filed: September 24, 2012)

                                 ________________

                                     OPINION
                                 ________________



*
 Honorable A. Wallace Tashima, Senior Circuit Judge for the Ninth Circuit Court of
Appeals, sitting by designation.
AMBRO, Circuit Judge

       Following a four-day jury trial, Appellant Corey Crawford was found guilty of one

count of conspiracy to commit robbery in violation of 18 U.S.C. § 1951(a), three counts

of robbery in violation of 18 U.S.C. § 1951(a), and two counts of carrying a firearm, or

aiding and abetting the use and carrying of a firearm, in relation to a crime of violence in

violation of 18 U.S.C. § 924(c). Crawford was sentenced to 505 months’ imprisonment.

He appeals both his conviction and sentence. We affirm.

                                             I.

       Because we write solely for the parties, we note only those facts relevant to our

decision. In June of 2009, Crawford and three co-conspirators—Marques Reavis,

Michael Spivey, and Marcus Spivey—engaged in a series of armed robberies of

McDonald’s restaurants. The first robbery occurred at a McDonald’s restaurant where

Crawford was employed. During a late-night shift Crawford left a drive-through window

open. Reavis and the Spiveys entered the restaurant through the open window wearing

gloves and masks and carrying a plastic gun, a BB gun, and a bat. They hit and kicked

both of the employees working with Crawford that night, took cash and property from

them, and forced one of them to open the restaurant’s safe in order to steal cash from the

restaurant. Crawford played along with the robbery by lying on the ground with his co-

workers while the store was robbed, although his personal belongings were not taken nor

was he struck by any of the robbers. After the robbery, Crawford accompanied his two

co-workers to the police department and gave a signed statement about the robbery.



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       Using robbery proceeds, Reavis and Crawford purchased a gun and taser that they

used in the next two robberies. Both of those robberies followed the same course of

events. Reavis and the Spiveys entered the restaurant through an open drive-through

window wearing masks and gloves and carrying the BB gun, firearm, and taser. They

tied up the employees using plastic ties, took cash, cell phones and credit cards, and

forced the manager to open the restaurant’s safe. For both robberies, Crawford supplied

his taser and drove the getaway car.

       During the subsequent investigation, police searched the Spiveys’ residence and

Reavis’s car, where they found black clothing, the taser, and plastic ties similar to those

used to secure the employees. Crawford was arrested by FBI Special Agent Carpenter.

After being advised of his rights, he admitted to participating in all three robberies.

       At trial, the Government presented testimony from employees of each restaurant,

Reavis, and the investigating officers, as well as surveillance video of two of the

robberies, cell phone records showing communication between Reavis and Crawford on

the nights of the robberies, and the physical evidence discovered by police.

       Crawford also testified. He admitted to being friends with Reavis, but claimed

that he was not involved in any of the robberies. He explained that he did not confess to

Agent Carpenter. Rather, he told Agent Carpenter that Reavis had admitted committing

the robberies with the Spiveys. Crawford testified that he simply conveyed what he had

been told by Reavis about the robberies.

       During her closing argument, the prosecutor argued that the jury should not

believe Crawford’s trial testimony about his statement to Agent Carpenter:

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       And remember what he said, because I’ll be honest with you, it was truly
       laughable at the moment, and it made no sense to me. And I submit that it should
       not make any sense to you what he said about that statement.

The District Court interrupted “Don’t vouch for the witnesses or vouch for the

testimony . . . .” The prosecutor continued:

       And I certainly don’t want to vouch for the witnesses because your recall of the
       evidence is going to control. And remember what he said. He said that he thought
       he was just there as a witness when he was talking to Agent Carpenter. Ask
       yourself, does that make sense?

Supp. App. 617. She then discussed Agent Carpenter’s testimony and again asked

whether “it make[s] sense what Corey Crawford told you on Friday[.] I submit to you

that it doesn’t.” Id. 619. At other points in her closing argument and rebuttal to defense

counsel’s closing, the prosecutor stated that an argument or testimony did or did not

“make sense.”

       Crawford was convicted of all charged offenses. Based on an offense level of 29

and a criminal history category of IV, Crawford’s Guidelines range was 121 to 151

months’ imprisonment plus two consecutive mandatory minimum sentences, one for

seven years and the other for twenty-five years, for the use of a firearm during a crime of

violence. Crawford represented himself pro se at the sentencing hearing. He did not

object to the Guidelines calculation or the offense conduct described in the presentence

report. On June 7, 2011, the Court sentenced Crawford to 505 months’ of incarceration.

                                               II.

       Crawford raises three issues on appeal. He first argues that the prosecutor

engaged in misconduct by vouching for the credibility of witnesses during her closing


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argument by stating that some testimony made sense and other testimony did not.

Crawford also argues that the District Court misstated the law on conspiracy when

reading the jury instruction to the jury. Finally, he asserts that the 505-month sentence

imposed by the District Court was procedurally and substantially unreasonable.

                                            III.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

appellate jurisdiction under 28 U.S.C. § 1291.

       Crawford did not contemporaneously object to either the prosecutor’s statements

during closing argument or the District Court’s misstatement while reading the jury

instruction. Thus we review those statements for plain error. United States v. Brennan,

326 F.3d 176, 182 (3d Cir. 2003). We review sentences for both procedural and

substantive reasonableness, applying an abuse-of-discretion standard. Gall v. United

States, 552 U.S. 38, 51 (2007); United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009)

(en banc). The party challenging the sentence bears the burden of demonstrating

unreasonsableness. Tomko, 562 F.3d at 567.

                                            IV.

       Crawford asserts that the prosecutor engaged in misconduct when she made

comments such as Crawford’s explanation of his confession “made no sense to me” and

that his earlier confession did “make[] sense.”

       A prosecutor commits misconduct by vouching when she “(1) assures the jury that

the testimony of a government witness is credible” and (2) bases that assurance “on either

[her] claimed personal knowledge or other information not contained in the record.”

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United States v. Lore, 430 F.3d 190, 211 (3d Cir. 2005). A prosecutor “may state [her]

views of what the evidence shows and the inferences and conclusions that the evidence

supports.” United States v. Zehrbach, 47 F.3d 1252, 1265 n.11 (3d Cir. 1995) (en banc).

       The prosecutor’s arguments about Crawford’s trial explanation of his earlier

confession were based on evidence submitted at trial. She was contrasting Crawford’s

explanation with the testimony, videos, and other evidence submitted to the jury. Other

arguments that testimony or defense counsel’s arguments did or did not make sense were

likewise based on evidence submitted at trial. There is no error here. There is also no

error in the prosecutor’s use of the phrase “I submit to you.” United States v. Walker,

155 F.3d 180, 188 (3d Cir. 1998) (“The phrase, ‘I submit to you that,’ without more, does

not constitute vouching.”).

       Crawford next contends that the District Court’s instruction on conspiracy

misstated the law. During his reading of the jury charge, the District Court mistakenly

stated that the Government did not have to prove that the conspirators agreed to commit

one of the object crimes before realizing the mistake and restating that sentence of the

charge correctly.

       The indictment charges a conspiracy to commit several Federal crimes. The
       Government does not have to prove that the alleged conspirators agreed to commit
       at least one of the object crimes, and you must unanimously agree on which crime.
       I think I -- let me rephrase that. The Government charged a conspiracy to commit
       several crimes. The Government does not have -- does have to prove that the
       alleged conspirators agreed to commit at least one of the object crimes, and you
       must unanimously agree on which crime.
       You cannot find Corey Crawford guilty of conspiracy unless you unanimously
       agree that the same Federal crimes were the object of the conspiracy. It is not
       enough if some of you agree that one of the charged crimes was the objective of


                                             6
       the conspiracy and others agree that a different crime was the object of the
       conspiracy.

App. 6–7.

       “Jury instructions must be read as a whole.” United States v. Flores, 454 F.3d

149, 157 (3d Cir. 2006). An instruction is not in error if “the instruction fairly and

adequately submits the issues in the case to the jury without confusing or misleading the

jurors.” United States v. Simon, 995 F.2d 1236, 1243 n.11 (3d Cir. 1993) (internal

quotations and alterations omitted).

       Although the District Court incorrectly added the word “not” during the initial

reading of the charge, it realized this mistake and re-read the instruction correctly. The

Court reinforced the correct instruction in the next two sentences. The written charge

supplied to the jury correctly stated the law. As a whole, the instruction was not

confusing or misleading. We find no error here.

       Further, even if either the prosecutor’s statement and/or the District Court’s

misstatement (later corrected) in the jury charge were improper, they were harmless.

Neither the prosecutor’s statements nor the District Court’s slip of the tongue seriously

affected the “fairness, integrity or public reputation of [the] judicial proceedings.” United

States v. Peppers, 302 F.3d 120, 125 (3d Cir. 2002). Moreover, evidence of Crawford’s

guilt was substantial if not overwhelming.

                                             V.

       Crawford also contends that the sentence of 505 months’ imprisonment is

unreasonable because the District Court did not properly consider the factors enumerated


                                              7
in 18 U.S.C. § 3553(a) and failed to justify a sentence that amounts to a life sentence.

Crawford also argues that the length of the sentence is unconstitutionally disproportionate

and unreasonable.

       District courts must follow a three-step process in imposing a sentence: (1)

calculate the applicable Guidelines range; (2) formally rule on departure motions; and (3)

exercise their discretion by considering relevant factors from § 3553(a). United States v.

Gunter, 462 F.3d 237, 247 (3d Cir. 2006). If a sentence is “procedurally sound, we will

affirm it unless no reasonable sentencing court would have imposed the same sentence on

that particular defendant for the reasons the [D]istrict [C]ourt provided.” Tomko, 562

F.3d at 568.

       To the extent that Crawford challenges the mandatory sentences imposed under

section 924(c), we have held that 924(c)’s sentencing scheme does not violate the Eighth

Amendment. United States v. Walker, 473 F.3d 71, 84 (3d Cir. 2007). Nor is there

procedural or substantive error. After determining the aggregate Guidelines range to be

505 to 535 months’ imprisonment (taking into account the mandatory minimum

sentences to be applied consecutively), the District Court discussed the § 3553(a) factors,

including the Guidelines range, the nature of Crawford’s offenses, his criminal history,

and the need to protect the public and deter future criminal conduct. App. 8–9. Although

a sentence of over forty-two years for the offenses here is equivalent to a life sentence,

we do not conclude that the District Court abused its discretion by sentencing Crawford

as it did in the context we have before us.

                                      *   *   *   *   *

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We affirm Crawford’s conviction and sentence.




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