                                                           [DO NOT PUBLISH]




              IN THE UNITED STATES COURT OF APPEALS
                                                          FILED
                      FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                        ________________________   ELEVENTH CIRCUIT
                                                    FEBRUARY 11, 2008
                                                    THOMAS K. KAHN
                              No. 06-14494
                                                         CLERK
                           Non-Argument Calendar
                         ________________________

                     D. C. Docket No. 05-20718-CR-MGC

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                    versus

JOSE ELIGIO RIOS,

                                                     Defendant-Appellant.

                         ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                              (February 11, 2008)

Before DUBINA, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Appellant Jose Eligio Rios appeals his convictions and 240-month total
sentence for conspiracy to commit alien smuggling and alien smuggling, in

violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 371; possession with

intent to distribute marijuana in the form of hashish oil, in violation of 21 U.S.C.

§ 841(a)(1); attempt to import marijuana in the form of hashish oil, in violation of

21 U.S.C. § 963; and possession with intent to distribute marijuana in the form of

hashish oil aboard a vessel, in violation of 46 U.S.C. Appx. § 1903(a) (now

codified in 46 U.S.C. § 70503).

      On appeal, Rios first argues that the district court abused its discretion in

admitting evidence regarding his contemporaneous drug use and prior drug

conviction, under Fed.R.Evid. 404(b), to address his knowledge and intent

regarding the instant drug charges. Second, Rios argues that the district court

abused its discretion in denying his motion for mistrial based on prosecutorial

misconduct in the government’s closing arguments. Finally, he argues that the

district court violated his constitutional rights by making factual determinations

regarding the amount of drugs involved in the instant offenses, for the purposes of

sentencing.

                                          I.

      We review a district court’s decision to admit or exclude Rule 404(b)

evidence of extrinsic acts for an abuse of discretion. United States v. Matthews,



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431 F.3d 1296, 1311 (11th Cir. 2005). Although evidence of other crimes or bad

acts is not admissible to prove the character of a person, it may be admissible for

other purposes, such as to prove intent or knowledge. Fed.R.Evid. 404(b). In a

criminal case, upon the defendant’s request, the prosecution must provide

reasonable notice of the bad acts evidence it intends to use at trial. Id.

      Rule 404(b) evidence is admissible if: (1) it is relevant to an issue other than

the defendant’s character; (2) sufficient proof would allow a jury to find that the

defendant committed the extrinsic act; and (3) its probative value is not

substantially outweighed by its undue prejudice, and it meets the other

requirements of Rule 403. Matthews, 431 F.3d at 1310-11. Under Rule 403,

otherwise relevant evidence may be excluded if “its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” Fed.R.Evid. 403.

      Because Rule 403 allows the exclusion of otherwise probative evidence, it

must only be used sparingly and the district court must strike the balance in favor

of admissibility. United States v. Fortenberry, 971 F.2d 717, 721 (11th Cir. 1992).

If the government presents a strong case regarding the defendant’s intent and

knowledge, outside of the Rule 404(b) evidence, the court should be more willing



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to exclude the Rule 404(b) evidence as overly prejudicial. Matthews, 431 F.3d at

1312. If the issue of the defendant’s knowledge or intent is determinative, it is less

likely that Rule 404(b) evidence showing knowledge or intent would be needlessly

cumulative or prejudicial, under Rule 403. United States v. Gaskell, 985 F.2d

1056, 1063 (11th Cir. 1993).

      The district court should consider the following three factors in determining

whether the government’s notice of intent to use Rule 404(b) evidence was

reasonable: “(1) When the Government, through timely preparation for trial, could

have learned of the availability of the [evidence]; (2) The extent of prejudice to the

opponent of the evidence from a lack of time to prepare; and (3) How significant

the evidence is to the prosecution’s case.” United States v. Perez-Tosta, 36 F.3d

1552, 1562 (11th Cir. 1994). In Perez-Tosta, after considering the above-stated

factors, we found that the district court did not abuse its discretion in finding that

the government’s notice of intent to use Rule 404(b) evidence, provided

immediately before voir dire and six days before presentation of the evidence, was

reasonable. Id. at 1560, 1562-63.

      Based on our review of the record, we conclude that the district court did not

abuse its discretion in admitting evidence of Rios’s heroin use and possession,

which occurred contemporaneously with the instant offenses, and his prior cocaine



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conviction. The government was required to prove Rios’s knowledge and intent

regarding the hashish oil for convictions on the drug charges, and his defense

depended on the argument that the government did not prove those elements

beyond a reasonable doubt. Even though other evidence might have shown his

knowledge and intent, the record does not indicate that evidence of his heroin use

and possession and prior cocaine conviction was needlessly cumulative. Also, to

the extent that Rios preserved any error regarding the timeliness of the

government’s notice of intent to use Rule 404(b) evidence, we conclude that the

district court did not abuse its discretion in finding that notice was reasonable.

                                           II.

      We review a district court’s denial of a requested mistrial based on

prosecutorial misconduct for an abuse of discretion. United States v. Knowles, 66

F.3d 1146, 1163 (11th Cir. 1995). We review a claim of prosecutorial misconduct

by assessing “(1) whether the challenged comments were improper, and (2) if so,

whether they prejudicially affected the substantial rights of the defendant.” United

States v. Arias-Izquierdo, 449 F.3d 1168, 1177 (11th Cir. 2006), cert. denied,

Olivares-Samon v. U.S., 127 S. Ct. 521 (2006). The comments prejudicially

affected a defendant’s substantial rights if “a reasonable probability arises that, but

for the remarks, the outcome [of the trial] would be different.” United States v.



                                           5
Wilson, 149 F.3d 1298, 1301 (11th Cir. 1998) (citations omitted). In assessing the

prejudicial impact of comments, we evaluate them in the context of the entire trial

and any curative instructions, which may render them harmless. Id.

       During closing arguments, the prosecutor is forbidden from making

improper suggestions, insinuations, and assertions calculated to mislead or inflame

the jury’s passions. United States v. Rodriguez, 765 F.2d 1546, 1560 (11th Cir.

1985). The government may not rely on the defendant’s bad character for a

conviction, unless character is at issue. Id. at 1559. “A prosecutor’s remarks are

improper if they attempt to bolster the credibility of a witness based on the

government’s reputation or by alluding to evidence not formally before the jury.”

United States v. Chandler, 996 F.2d 1073, 1094 (11th Cir. 1993). Disparaging

remarks about defense counsel are also improper. United States v. Bourg, 598 F.2d

445, 449 (5th Cir. 1979).1

       A prosecutor acts improperly at closing argument if his argument exceeds

the evidence presented. United States v. Bailey, 123 F.3d 1381, 1400 (11th Cir.

1997). But a prosecutor may “urge[] the jury to draw inferences and conclusions

from the evidence produced at trial.” United States v. Johns, 734 F.2d 657, 663



       1
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior
to October 1, 1981.

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(11th Cir. 1984). “[A]n attorney’s statements that indicate his opinion or

knowledge of the case as theretofore presented before the court and jury are

permissible if the attorney makes it clear that the conclusions he is urging are

conclusions to be drawn from the evidence.” Id.

      The record here demonstrates that the district court did not abuse its

discretion in denying Rios’s motion for a mistrial due to prosecutorial misconduct

at closing arguments. First, the record does not reveal any remarks by the

prosecutor about the defense counsel or about Rios’s character that prejudiced

Rios’s substantial rights. Although the prosecutor referred to Rios’s character at

one point, the court sustained Rios’s objection to that statement, and instructed the

jury that Rios’s character was not at issue. The prosecutor’s only other references

to character were made in telling the jury that Rios’s character was not at issue and

the evidence of his drug use and prior conviction should not be used as evidence of

his character.

      Moreover, the record does not show that Rios’s substantial rights were

prejudiced by any improper comments made by the prosecutor regarding

inconsistencies in the witness testimony. The prosecutor and the court made clear

that the jury was responsible for drawing that conclusion based on the evidence,

and the statements by the lawyers were not evidence.



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                                          III.

      “We review constitutional challenges to a sentence de novo.” United States

v. Chau, 426 F.3d 1318, 1321 (11th Cir. 2005). In United States v. Booker, 543

U.S. 220, 125 S. Ct. 738 (2005), the Supreme Court held that a district court’s

enhancement of a defendant’s sentence based on facts neither found by the jury nor

admitted by the defendant violated the defendant’s Sixth Amendment rights under

a mandatory system of sentencing guidelines. Booker, 543 U.S. at 232-33, 125 S.

Ct. at 749. However, the Sixth Amendment violation would not occur if the

district court treated the guidelines as advisory rather than mandatory. Id. at 233,

125 S. Ct. at 749-50.

      Based on Booker, we have recognized that a district court may enhance a

defendant’s sentence based on facts outside of the jury verdict in a non-mandatory

guidelines system. United States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir.

2005). Therefore, a district court may enhance a defendant’s sentence based on

facts not found by the jury, without violating the defendant’s Sixth Amendment

right to trial by jury, if the guidelines are not treated as mandatory. Id. at 1297-98.

      Because the record makes clear that the district court treated the sentencing

guidelines as advisory, rather than mandatory, we conclude that the district court

did not violate Rios’s constitutional rights by imposing on him a greater sentence



                                           8
based on its finding that his drug charges involved 31.98 kilograms of hashish oil.

      For the above-stated reasons, we affirm Rios’s convictions and his 240-

month total sentence.

      AFFIRMED.




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