                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       June 30, 2006
                                     TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                       Clerk of Court


 U N ITED STA TES O F A M ER ICA,

                Plaintiff - Appellee,                    No. 04-7003
           v.                                          E. D. Oklahoma
 RO M ON IA JEAN BLUNT,                          (D.C. No. CR -03-09-02-P)

                Defendant - Appellant,

 ------------------------------------------

 U N ITED STA TES O F A M ER ICA,

                 Plaintiff - Appellee,                   No. 04-7004

           v.                                          E. D. Oklahoma

 ED D IE K A Y CO PEM A N ,                          (D.C. No. 03-CR -9-P)

                 Defendant - Appellant.



                               OR D ER AND JUDGM ENT *


Before TA CH A, HA RTZ, and TYM KOVICH, Circuit Judges.


       *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      Romonia B lunt was charged in Count One of a nine-count indictment with

conspiracy to possess with intent to distribute more than 500 grams of

methamphetamine. Eddie Kay Copeman, her comm on-law husband, was charged

in the same count, and also in eight additional counts. At trial the district court

granted a motion for judgment of acquittal on two counts. Both were convicted

by a jury on Count One. M r. Copeman w as also convicted on the other remaining

six counts, all involving drug and firearms offenses. Both M r. Copeman and

M s. Blunt contend on appeal that their Fourth Amendment rights were violated by

police entry into their home following their arrest, and that they were sentenced

in violation of United States v. Booker, 543 U.S. 220 (2005). Each also raises

issues individually. M s. Blunt contends that two search warrants were exercised

with such flagrant disregard for their terms that all the seized evidence should be

suppressed. And M r. Copeman contends that prosecutorial misconduct denied

him a fair trial and that a mistrial should have been granted when a government

agent testified that it was difficult to get people to cooperate in the investigation

because they were afraid M r. Copeman w ould kill them. W e will summarize the

relevant facts as we address each issue.




                                           -2-
I.    FO URTH AM ENDM ENT CLAIM S

      A.     Background

      In October 2002 law enforcement officers went to the home of

M r. Copeman and M s. Blunt in Keota, Oklahoma, to execute arrest warrants for

them both. They came out of their home and were arrested without incident.

After they had been secured, two other individuals approached from behind the

residence. Agent Steve Fioretti of the Haskell County Sheriff’s Department asked

them if they had any weapons. One of them, M s. Rhonda Allen, said that she had

a knife. As she pulled it from her pocket, Agent Fioretti saw a bag of white

powder in her possession, which was seized. It field-tested positive for

methamphetamine.

      A third person, M s. Judy Harp, who was barefoot, then exited the

residence. After she was frisked she asked the officers if she could go back into

the home to get her shoes. According to Agent Fioretti, he “asked if she lived

there, and she stated ‘W ell, yeah, I’m kind of like the kids nanny and I do the

cleaning and I do the shopping.’” R. Vol. XVIII at 15. She offered to “take

somebody in with her to get her shoes.” Id. Agent Fioretti instructed Oklahoma

Highway Patrol Trooper Clint Craft to accompany her. Agent Fioretti testified

that he “had never had any dealings with” M s. Harp and was concerned about

weapons in the residence: “I didn’t know if she would go in and try to get a

weapon and come back outside or try to get a weapon and flee or what she was

                                         -3-
going to do.” Id. at 16. Trooper Craft testified that he was in the home for only

30 seconds, and simply followed M s. Harp to the bathroom where she put her

shoes on. W hen he first entered the home, he saw a jar on a dresser by the front

door with different types of syringes in and around it. Some of the syringes w ere

of a type he knew to be used to inject methamphetamine.

      Agent Fioretti obtained a search warrant for the home, relying in part on

the methamphetamine found on M s. Allen, the five additional small bags (one that

tested positive for methamphetamine) found on M s. Allen when she was booked

into jail, and Trooper Craft’s observation of the syringes. The warrant authorized

a search for evidence of drug distribution, particularly methamphetamine, and

weapons. According to the return on the warrant, officers seized several items

from the home, including “several bags with a white chunky substance,” a “9 M M

semi auto handgun,” a bag containing $64,5000, and “[s]everal plastic bottles

wrapped in black tape containing a total of $90,000.00.” R. Vol. I Doc. 18, Gov’t

Ex. One at 7. During execution of the warrant, Agent Fioretti saw a door that had

been taken off a black truck; its Vehicle Identification Number w as in plain view.

A check revealed that the vehicle had been reported stolen. He informed the

other officers on the scene to stop searching. They obtained a second warrant,

which authorized a search for evidence of drug-related activity, firearms, and

“stolen merchandise,” including, among other things, “electronics equipment,

hand tools, power tools, firearms and ammunition,” any evidence of stolen

                                        -4-
vehicles, and “[t]ools utilized in the renumbering of vehicles.” Id., Gov’t Ex.

Two at 10. The search yielded 85 seized items. Some of the items were seized

because police were able to verify on the scene that they were stolen. Other

seized items fit general descriptions of items that had been reported stolen. Agent

Fioretti testified that they seized many items that they “thought” w ere stolen with

the intention to “verify . . . at a later date.” R. Vol. XVIII at 72.

      A third warrant was obtained to search another residence for evidence of

drug-related activity and weapons. The return lists 35 items or, rather, categories

of items, that were seized; most were drug-related but officers also seized 110

cows, 2 pigs, 15 horses, a mule, 2 hay buggies, 5 trailers, a hay rake, and a Ford

semi truck and trailer. Agent Fioretti testified that these items were seized for

caretaking purposes, and to prevent theft.

      M r. Copeman and M s. Blunt both contend that the police entry into their

home with M s. Harp to obtain her shoes violated the Fourth Amendment, and that

without the illegal entry there was not sufficient probable cause to issue the first

search warrant. M s. Blunt also challenges the searches under the second and third

warrants, contending that the officers conducting the searches flagrantly violated

the terms of the warrants and conducted general searches.

      B.     Discussion

      “W hen reviewing the denial of a motion to suppress, we view the evidence

in the light most favorable to the government, accept the district court’s findings

                                          -5-
of fact unless clearly erroneous, and review de novo the ultimate determination of

reasonableness under the Fourth Amendment.” United States v. Apperson, 441

F.3d 1162, 1184 (10th Cir. 2006) (internal quotation marks omitted).

             1.     Initial Entry

      The district court denied the motion to suppress the items seized under the

first warrant, relying on United States v. Butler, 980 F.2d 619 (10th Cir. 1992), to

conclude that the police did not violate the Fourth Amendment by entering the

home with M s. Harp to retrieve her shoes. In Butler a shoeless man was arrested

outside his home when the arresting officer noticed broken glass on the ground.

To obtain shoes for the arrestee, the officer took him back into his home, where

the officer saw a gun next to the bed. W e held that when there is “a legitimate

and significant threat to the health and safety of the arrestee,” police may

accompany him back into the home to obtain clothes. Id. at 622.

      Although recognizing that there was no health or safety issue in this case

with respect to the arrestees (M r. Copeman and M s. Blunt), the district court

based its finding on the safety of the officers, stating that “there is no evidence

suggesting that Craft escorted Harp for any reason other than to ensure officer

safety while she retrieved her shoes.” R. Vol. I Doc. 29 at 6.

      In the alternative, the district court also found that “it w as entirely

reasonable for Fioretti to believe Harp had authority to consent to the entry.” Id.

M s. Harp said she lived there and was like a nanny. See Illinois v. Rodriguez, 497

                                          -6-
U.S. 177, 179 (1990) (“[A] warrantless entry . . . does not violate the Fourth

Amendment[ ] . . . if the officers have obtained the consent of a third party who

possesses common authority over the premises.”). She offered to take an officer

into the home with her. According to the court, her statement that she lived there

and her offer to take an officer in with her “made it reasonable for Fioretti to

conclude that she had the authority to enter the house herself and, moreover, to

consent to the entry into the house by law enforcement officials.” R. Vol. I Doc.

29 at 7. See Rodriguez, 497 U.S. at 186 (“The Constitution is no more violated

when officers enter without a warrant because they reasonably (though

erroneously) believe that the person who has consented to their entry is a resident

of the premises, than it is violated when they enter without a warrant because they

reasonably (though erroneously) believe they are in pursuit of a violent felon who

is about to escape.”).

      On appeal M r. Copeman and M s. Blunt have challenged only the first basis

for the district court’s ruling. M s. Blunt raises the apparent-authority issue in her

reply brief, but we generally do not address issues raised for the first time in a

reply brief. United States v. Holbert, 285 F.3d 1257, 1263 (10th Cir. 2002) (“The

general rule is that appellate courts will not entertain issues raised for the first

time on appeal in an Appellant’s reply.”). We therefore affirm the district court’s

ruling on Trooper Craft’s entry.




                                          -7-
             2.    Execution of Search W arrants

       M s. Blunt also contends that during the execution of the second and third

search warrants “officers seized numerous items . . . for which there was no

probable cause or source in the warrants for seizure. This converted the searches

into general searches and requires blanket suppression.” Blunt A plt. Br. at 11.

The district court rejected the argument, stating that other than the animals and

some stolen property “the items listed on the return were property falling under

one of the listed categories of the search warrant.” R. Vol. I Doc. 29 at 11. It did

state, however, that items that “w ere seized during the execution of these warrants

based on non-specific information from the Haskell County Sheriff and his

deputies that they had ‘heard or remembered’ general reports of stolen property”

should be suppressed Id.

      “If evidence is illegally seized, the general rule is that only the improperly

seized evidence, not all of the evidence, must be suppressed . . . .” United States

v. Hargus, 128 F.3d 1358, 1363 (10th Cir. 1997) (internal quotation marks

omitted). But “even evidence which is properly seized pursuant to a warrant must

be suppressed if the officers executing the warrant exhibit flagrant disregard for

its terms.” United States v. Foster, 100 F.3d 846, 849 (10th Cir. 1996) (internal

quotation marks omitted). “[W]hen law enforcement officers grossly exceed the

scope of a search warrant in seizing property, the particularity requirement is

undermined and a valid warrant is transformed into a general warrant thereby

                                         -8-
requiring suppression of all evidence seized under that warrant.” Id. at 849-50

(internal quotation marks and brackets omitted).

      Only “[i]n very rare cases” have we “applied the unusual remedy of blanket

suppression.” United States v. Le, 173 F.3d 1258, 1269 (10th Cir. 1999). In

Foster we held that blanket suppression was appropriate because “there was a

wholesale seizure of Foster’s property amounting to a fishing expedition.” 100

F.3d at 850. One officer testified that they “‘took anything of value’” and the

district court found that “‘no attempt was made to substantiate a connection

between the seizure of the majority of the seized items and the terms of the

warrant.’” Id. A similar “fishing expedition” was conducted in United States v.

M edlin, 842 F.2d 1194, 1199 (10th Cir. 1988). The warrant authorized seizure of

only firearms and the records of sales and purchases of firearms, id. at 1195, but

the officers “seized some 667 items of property none of which were identified in

the warrant authorizing the search,” id. at 1196. In contrast, in Hargus, 128 F.3d

at 1363, “[a]lthough we [were] given pause by the wholesale seizure of file

cabinets and miscellaneous papers and property not specified in the search

warrant, the officers’ conduct . . . was motivated by the impracticability of on-site

sorting and the time constraints of executing a daytime search warrant.”

M oreover, “[t]he officers were authorized to seize ten broad categories of records,

and those records were present in every drawer of both file cabinets.” Id.




                                          -9-
      In this case the district found that, with the exception of the seized animals

and some stolen goods, all the seized items were within categories described by

the warrants. As for the items seized on suspicion that they were stolen, Agent

Fioretti testified that they were seized generally because of reports of similar

items that were stolen. The officers seized some baseball, football, and basketball

cards, for example, because the sheriff assisting the search “had [received]

several reports of numerous baseball cards and basketball cards that were stolen

in and around Haskell County.” R. Vol. XVIII at 30. Several boxes of

arrowheads were also seized because “[t]here had been several burglaries where a

large amount of arrowhead collections had been stolen in Haskell County and [the

sheriff] believed these could be a part of that burglary.” Id. at 68. A brown

leather saddle with “Bar 99" on the back was seized for the same reason. Id. at

30. Agent Fioretti testified that on-scene confirmation would have been too time-

consuming. But when it could be verified that items were in fact stolen, the

officers apparently attempted to do so. Several class rings were seized, for

example, which had names on them that w ere recognized by officers on the scene.

Some of those people were called and confirmed that the rings had been stolen.

And many items w ere left behind because they did not appear to be stolen. All

the officers on the scene were provided a copy of the warrant, and Agent Fioretti

himself made the final decision whether an item should be seized.




                                         -10-
      The district court specifically suppressed items that were seized under only

a general belief that they were stolen. But even if some items w ere improperly

seized, the above account of police procedures shows that the warrants were not

executed with “flagrant disregard” for their terms, or that the officers “grossly

exceeded” the warrants’ authorization. Foster, 100 F.3d at 849.

      The seized animals are a different story. At the suppression hearing Agent

Fioretti explained the decision to seize the animals:

             The sheriff and I talked about it and we called the assistant
      district attorney and he advised that if we didn’t have anybody that
      could take care of them, that we knew would take care of them, that
      we needed to take them basically into protective custody. That way
      we knew they were taken care of.

R. Vol. XVIII at 33. Agent Fioretti testified that he did not know of any other

way to care for the animals. He further testified that he had no purpose in seizing

the animals other than to care for them. Even if their seizure was improper, the

circumstances do not exhibit a flagrant disregard for the warrant. The animals

w ere not seized as evidence and were not admitted into evidence, a factor we

found important in Hargus, 128 F.3d at 1363 (“[A] search is not invalidated

merely because some things are seized that are not stated in the warrant. This is

particularly true when the non-specified items are not admitted into evidence

against the defendant.”). Accordingly, we affirm the district court’s denial of the

motion to suppress.




                                         -11-
II.   PR EJU D IC IA L T EST IM ONY

      A.     Background

      M r. Copeman contends that the district court should have granted his

motion for a mistrial after FBI Agent Gary Graff testified that M r. Copeman’s

associates w ere afraid that he w ould kill them if they cooperated with law-

enforcement authorities. Some context is helpful to understand why we reject this

claim. Part of M r. Copeman’s trial strategy was to impugn the integrity and

competence of the officers who conducted the investigation. During his opening

statement, for example, counsel for M r. Copeman told the jury “that by the time

you have heard all of this evidence, you will come to the conclusion that [Agent

Fioretti] is not an honest police officer, that he will lie and cheat to get somebody

convicted.” R . Supp. V ol. I (O pening Statements, Aug. 5, 2003) at 28. He

accused Agent Fioretti of planting evidence, and suggested that the entire

investigation was retaliation because M r. Copeman had supported the wrong

candidate for sheriff. He also questioned why the government did not have

certain types of evidence:

      Our government, the FBI, could put a tape, could put a wire, on
      somebody where you could hear it. And wouldn’t that be grand if
      you had this kind of evidence that you could listen to and say, oh,
      yeah, I hear that. Oh, he did that. W ell, for two or three years they
      have had this ability. If [M r. Copeman] is such a big drug dealer,
      why not hook one of these people up w ith a w ire and send them in so
      that you wouldn’t even have to be asked to guess about whether or
      not he did or didn’t do this.



                                         -12-
Id. at 35-36.

      During cross-examination of Agent Graff, M r. Copeman’s counsel

continued on this theme, questioning Agent Graff about why the investigators

failed to use certain techniques, such as undercover buys, wiretaps, and

informants:

      Q     Okay. W ould it be a fair statement that back in 1999,
      you— the FBI opened an investigation into Eddie Copeman?

      A         That is correct.

      ....

      Q      And would it be a fair statement that in ‘99, 2000, 2001, up
      until October of 2002, he remained a target of the FBI, the DEA, and
      I assume the H askell County folks?

      ....

      A     At times, he was. I mean, I w orked 15 or 20 other cases.
      There would be times six or nine months w ould go by and I wouldn’t
      even think about M r. Copeman.

      Q      Okay. W ould it be a fair statement that you all attempted
      to— I mean, when they become a target, you like to get evidence, get
      them on video, get them on audio, make a buy, get one of your actual
      FBI agents or an undercover police officer, somebody to go in and
      actually buy from them; correct?

      A         If w e can do that, that’s great, yes, sir.

      ....

      Q     In other cases, do you send actual law enforcement officers
      who have beards and look like druggies, do they go in, and
      sometimes you have actual police officers who make these
      undercover buys?

                                              -13-
      A      Sometimes. Rarely, but sometimes.

      ....

      Q      And you didn’t do that in this case?

      A      The opportunity just did not present itself, no, sir.

R. Vol. X at 319-22.

      On redirect, Agent Graff had the following exchange w ith the prosecutor:

      Q     [Defense counsel] asked you about your ability to put wires on
      people and all of those sorts of things. Do you remember that kind
      of inquiry?

      A      Yes. Yes.

      Q     Did you attempt— during your investigation of this matter,
      attempt to introduce a law enforcement officer to M r. Copeman?

      A      Yes.

      Q      W ere you successful in that attempt?

      A      No.

      Q      W hy not?

      A      It was very difficult to get people to cooperate—

            [Defense Counsel]: Object, Your Honor, as— that he
      attempted to? I mean, I don’t know, are they going to say that, oh,
      everybody is just so scared? I mean, it could be very prejudicial,
      what’s fixing to come out, and its— the reason—

            The Court: Okay. I’ve heard enough. The objection’s
      overruled. You may answer.

      By the W itness:



                                         -14-
      A     It was very difficult to get anyone to cooperate, because people
      were terrified of M r. Copeman, and they were afraid he would kill
      them if they cooperated.

             [Defense Counsel]: See, Judge. See what I’m saying?

             [Prosecutor]: He opened the door, Your Honor.

            The Court: I— I sustained the— overruled the objection and let
      him answer, and you can cross examine him about it, if you choose
      to.

R. Vol. X at 380-81.

      Ultimately, the district court ruled that part of the answer had to be stricken

as hearsay: “W ell, I’ve already made the ruling. He can answer the question yes,

that he made an effort, but the— when the effort gets into hearsay, then it’s not

admissible.” Id. at 383. The jury was then “instructed to disregard the answer

given by this witness, other than the answer that he did make an effort. The rest

of the statement of the witness should be disregarded.” Id.

      On recross, defense counsel immediately began questioning Agent Graff

about the stricken answer:

      Q     That part we’re disregarding, you didn’t put it in any report;
      did you?

      A      I’m not aware of it, sir, no.

      Q       W ell, wouldn’t that be a pretty important part to put in there,
      that if you tried to w ire somebody up, and this is such a bad fellow,
      wouldn’t that go in a report?

              [Prosecutor]: You’re Honor, if they’re supposed to disregard
      it, I think further inquiry would—

                                         -15-
             [Defense Counsel]: Judge, that’s like throwing a skunk up
      there and telling them not to smell it.

            The Court: Do I take it that you’ve waived—

             [Defense Counsel]: No, I’m going to move for a mistrial,
      because I objected before it ever came in, because I know how they
      do, I knew what was coming, and that’s why I objected.

Id. at 383-84. Defense counsel then continued to question Agent Graff about why

this information was not included in any report. After the jury was dismissed,

defense counsel moved for a mistrial, w hich the court took under advisement.

The next morning the district court denied the motion:

             I think under the circumstances I w ould . . . note on review in
      my mind that the testimony that preceded that question that, perhaps
      invited error is too strong a word, but there was as I reviewed the
      testimony several questions by [defense counsel] to this witness and
      as I recall even other w itnesses as to why there was not a wire.
      Although I do not condone necessarily the response of the FBI agent
      on the stand, I think he could have chosen his words m uch better, I’m
      not altogether sure that it was not a question that had been
      overworked by defense counsel.

R. Vol. V at 4-5.

            B.      Discussion

      The district court “is in the best position to evaluate the effect of the

offending evidence on the jury.” United States v. Behrens, 689 F.2d 154, 162

(10th Cir. 1982) (internal quotation marks omitted). Therefore

      [w]e review a district court’s refusal to grant a mistrial for abuse of
      discretion. In reviewing a court’s determination for abuse of
      discretion, we will not disturb the determination absent a distinct



                                         -16-
      showing it was based on a clearly erroneous finding of fact or an
      erroneous conclusion of law or manifests a clear error of judgment.

United States v. Stiger, 413 F.3d 1185, 1194 (10th Cir. 2005) (internal quotation

marks and citation omitted).

      The district court did not abuse its discretion in denying the motion for a

mistrial. M r. Copeman contends that the court should have excluded under Fed.

R. Evid. 404(b) Agent Graff’s statement that officers w ere unable to find people

to cooperate in their investigation of M r. Copeman because they were afraid he

would kill them, and “that because this testimony was erroneously admitted, he is

entitled to a new trial.” Copeman A plt. Br. at 14. But the statement was stricken

and the jury was instructed to disregard it. The only issue before us is whether,

notwithstanding this instruction to the jury, M r. Copeman w as entitled to a

mistrial because his “right to a fair and impartial trial ha[d] been impaired.”

United States v. Caballero, 277 F.3d 1235, 1242 (10th Cir. 2002).

      W e do not believe there was such unfairness. First, the agent’s testimony

was responsive to defense counsel’s specific suggestion that law enforcement

officers were inept in not using particular investigative techniques. Second,

within minutes of the testimony the court instructed the jury to disregard the

portion of Agent Graff’s testimony concerning people being afraid of

M r. Copeman. “W e presume that jurors w ill follow clear instructions to disregard

evidence unless there is an overwhelming probability that the jury will be unable



                                         -17-
to follow the court’s instructions, and a strong likelihood that the effect of the

evidence would be devastating to the defendant.” Id. at 1243 (internal quotation

marks omitted). Although M r. Copeman complains that the jury did not receive

an additional instruction before it began deliberations, he neither objected to the

instructions given by the court, nor proposed another curative instruction. The

district court did not abuse its discretion in denying the motion for a mistrial.

III.   PR OSE CU TOR IA L M ISCONDUCT

       A.    Background

       M r. Copeman points to three statements that he contends represent

prosecutorial misconduct. First, during redirect examination of Agent Graff, the

prosecutor attempted to ask him about a report by Agent Fioretti. M r. Copeman’s

counsel objected that asking Agent Graff about the contents of A gent Fioretti’s

report called for hearsay. The prosecutor then stated that on cross-examination

defense counsel had tried to “mislead the jury as to what M r. Fioretti’s report

indicated.” R. Vol. X at 375. The second statement came at the beginning of

closing argument when the prosecutor stated:

       Also, at the beginning of this case I told you that all of that mattered
       was whether or not the defendants were guilty of the crimes charged.
       I submit to you the defendants continually attempt to divert you,
       confuse you, quite frankly bore you, all on and on and on to avoid
       that issue.

R. Supp. Vol. I (Closing Arguments, Aug. 18, 2003) at 83-84. M r. Copeman’s

counsel objected that “[t]o make these kind of attacks about the defense is

                                          -18-
improper.” Id. at 84. The court sustained the objection and instructed the jury to

disregard the comment. Finally, the prosecutor also said during closing argument:

      W hen my father was younger . . . he used to tell me . . . you could
      tell w hat kind of man you are by the enemies you make. It’s pretty
      clear that drug dealers don’t like the Steve Fioretti’s the Gary Graff’s
      and it’s a good thing because they are doing too good of a job. And
      that business isn’t pretty. It destroys people.

Id. at 99. Defense counsel objected that the prosecutor was raising a “societal

alarm argument” and the court sustained the objection. Id.

      B.     Discussion

      W e apply a tw o-part test to a claim of prosecutorial misconduct: “First, w e

decide whether the conduct was improper. Second, we decide whether the

conduct, if improper, warrants reversal. The general focus of the second part of

the test focuses on whether the prosecutor’s conduct affected the fairness of the

trial.” Apperson, 441 F.3d at 1207 (internal quotation marks and citation

omitted). “[I]n examining claims of prosecutorial misconduct, we have held that

reversal is required only if the improper conduct influenced the verdict.” United

States v. M aynard, 236 F.3d 601, 606 (10th Cir. 2000) (internal quotation marks

omitted). Furthermore, “in determining whether the misconduct had such an

impact, we consider the trial as a whole, including the curative acts of the district

court, the extent of the misconduct, and the role of the misconduct within the

case.” Id. (internal quotation marks omitted).




                                         -19-
      W e can quickly dispose of the challenges to the two comments made during

closing argument. On each occasion the district court immediately sustained an

objection and instructed the jury to disregard the comment. As previously noted,

we presume that such curative instructions are obeyed by jurors. Caballero, 277

F.3d at 1243. M oreover, with respect to the “societal alarm” argument, the

district court observed that “the objection was made quickly enough that if [the

prosecutor] was going there, he didn’t get there. . . . I don’t think we got to that

point in front of this jury, that there was any message communicated to the jury

about societal concerns. From my view, it was a term introduced and

characterized in your objection more than it was the statement actually made by

counsel” R. Vol. XVII at 1500.

      There remains the statement by the prosecutor that defense counsel was

attem pting to mislead the jury w ith respect to the contents of a police report. A s

with M r. Copeman’s claim of prejudicial testimony, the statement must be viewed

in context. During Agent Graff’s cross-examination by defense counsel, he was

questioned about the search of a 1983 Oldsmobile:

      Q    [Y]ou say that you found all of this stuff in the green
      Oldsmobile on October the 23rd?

      A      Yes.

      Q    And as far as your concerned, nobody had ever— he said
      nobody had tampered with it?

      A      Not that I’m aware of.

                                          -20-
      Q      W ere you aware that Agent Fioretti, on October the 22nd, in
      his search warrant return, listed and swore under oath that, “All the
      items were, on the 22nd day of October, found— ” and one of the
      items listed, that he says that he found “— one black bag containing
      several bundles wrapped in black tape containing white chunky
      substance, five bundles in plastic with white chunky substance, from
      trunk of car with Arkansas tag 552.” Now, that’s the same tag that
      we’re talking about, that you say you found with him on the 23rd?

      ....

      A      He has a typo on the date on that report. It should be the 23rd.
      I’ve seen the report.

R. Vol. X at 314-15. Defense counsel also questioned Agent Graff about why the

typo was not corrected, and why he had not prepared his own report concerning

the search. The prosecutor objected that defense counsel was trying to impeach

Agent Graff improperly: “He’s asking about someone else’s report. I believe it’s

a mischaracterization of the report, in any event.” Id. at 318.

      During redirect examination the prosecutor questioned Agent Graff about

the report:

      Q      [Defense counsel] asked you a number of questions about
      M r. Fioretti’s report. Do you recall that?

      A       Yes.

      Q       I’d like to get that cleared up and actually show you that
              report.

      ....

      Q     Does this appear to be the report— [defense counsel] never
      showed it to you, but does this appear to be the report that he was
      asking you about with M r. Fioretti.

                                         -21-
      A       Yes, it is.

      ....

      Q     Does— anywhere in that report, does it indicate that the vehicle
      was searched on October 22nd, 2002, as you read the report?

      ....

             [Defense Counsel]: Judge, see, that’s w hat he’s trying to do, is
      he’s w anting them— I don’t want to get in trouble, but he knows this
      is not admissible, and he’s w anting to make them think I’m trying to
      hide something, that I’m not trying to hide. He can’t interpret— he
      can give the dates. I mean, if he wants to say, yes, he put— the only
      date w as 10/22, there isn’t any 10/23 date on there, I don’t object to
      that. But to say I interpret this to mean something else, I object to
      that.

             [Prosecutor]: Your Honor, I believe that [defense counsel]— I
      wasn’t trying to say that he was hiding something, but mislead the
      jury. He w as trying to mislead the jury as to what M r. Fioretti’s
      report indicated. And I think based on that cross examination, it’s
      perfectly appropriate to introduce [Agent Fioretti’s report], so then
      the jury can determine what significance, if any, to give to the report.

Id. at 372-75. The prosecutor argued that because defense counsel had been

questioning the witness about the report, “I think, in fairness, to reflect what the

exhibit actually says, it’s important for the jury to examine it in its totality, and

that’s why I think it should be admitted.” Id. at 376. The report was admitted

into evidence and the prosecutor asked Agent Graff:

      Q     Does it reflect when the vehicle w as searched, that you were
      involved in searching?

      A       No, it doesn’t give a date.

Id. at 378.

                                            -22-
      To support his claim that the prosecutor’s “trying to mislead” statement

constitutes prosecutorial misconduct, M r. Copeman points us to United States v.

Linn, 31 F.3d 987, 993 (10th Cir. 1994), where we said “that comments by

prosecutors to the effect that a defense attorney’s job is to mislead the jury in

order to garner an acquittal for his client is not only distasteful but borders on

being unethical.” W e stated that such statements are improper, but that they did

not amount to plain error in that case. Here, we are faced with a prosecutor

attempting to question a witness about the contents of a police report that he

believed had been misrepresented by defense counsel. Rather than stating that it

was defense counsel’s job to mislead the jury, the statement merely indicated the

prosecutor’s belief that defense counsel was trying to mislead the jury about a

single report. The report was almost immediately thereafter admitted into

evidence, and defense counsel was given the opportunity to cross-examine the

witness about it. W e cannot say that the prosecutor’s statement— assuming it was

improper— compromised the fairness of the trial.

      Finally, M r. Copeman makes a cumulative-effect argument: “The trial was

lengthy, but the prosecutor made several improper statements. The cumulative

effect of these multiple incidents of prosecutorial misconduct was such that

M r. Copeman w as denied a fair trial.” Copeman A plt. Br. at 19. To the extent

that this argument refers to any statements other than the three specifically raised

on appeal, M r. Copeman has not pointed us to any such statements in the record

                                          -23-
and it is not our job to search the record for other possible prosecutorial

misconduct. See Apperson, 441 F.3d at 1204 (refusing to “sift through the case’s

voluminous record to find support for the defendants’ claims” (internal quotation

marks and brackets omitted)). If the argument is referring only to the three

comm ents actually raised on appeal, no showing has been made that the

comments, individually or cumulatively, prejudiced M r. Copeman’s right to a fair

trial.

IV.      SENTENCING CH ALLENGES

         A.    The Sentences

         Applying the United States Sentencing Guidelines (USSG ), the presentence

report (PSR ) for M r. Copeman calculated a base offense level of 38. This was

enhanced by two levels because “a firearm was recovered from the bathroom

where, according to witnesses, drug transactions had taken place,” R. Vol. II at 7,

see USSG § 2D1.1(b)(1), plus two additional levels because M r. Copeman w as a

leader in the criminal activity, see USSG § 3B1.1(c). This created a total offense

level of 42, which, combined with M r. Copeman’s criminal-history category I,

placed the Guidelines sentencing range at 360 months to life. M r. Copeman did

not object to the PSR. The district court imposed a sentence of 360 months’

imprisonment, stating that “[a] sentence at the bottom of the guideline range was

imposed to provide just punishment, to promote respect for the law, and to protect

the public.” R. Supp. Vol. II at 5-6.

                                         -24-
        The PSR for M s. Blunt also calculated a base offense level of 38, based in

part on a finding concerning drug quantity. A four-level reduction for

M s. Blunt’s minor role in the offense, see USSG § 3B1.2(a), and a criminal-

history category I, created a Guidelines sentencing range of 151-188 months. She

also did not object to the PSR and was sentenced to 151 months’ imprisonment,

the bottom of the G uidelines range, for the same reasons given in M r. Copeman’s

case.

        M r. Copeman and M s. Blunt contend that they were sentenced in violation

of Booker. They both concede that neither objected below and that our review is

only for plain error. “Plain error occurs when there is (1) error, (2) that is plain,

which (3) affects substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” United States v.

Gonzalez-H uerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc) (internal

quotation marks omitted). The first two prongs of the plain-error test are satisfied

when the sentencing judge applies the Guidelines in a mandatory fashion. Id.

        B.    Discussion

        M r. Copeman contends, and the government concedes, that the sentencing

in his case involved both constitutional and nonconstitutional Booker error. That

is, the sentence was increased based on facts found by the judge, and the

Guidelines were applied mandatorily. See United States v. Gonzalez-Huerta, 403




                                          -25-
F.3d 727, 731-32 (10th Cir. 2005) (en banc) (distinguishing between

constitutional and nonconstitutional Booker error).

      The first enhancement challenged by M r. Copeman was under USSG

§ 2D 1.1(b)(1), w hich provides that the offense level should be increased by tw o

levels “[i]f a dangerous weapon (including a firearm) was possessed.” The

district court granted a judgment of acquittal on Count Four of the indictment,

which charged a violation of 18 U.S.C. § 924(c), based on the same firearm.

M r. Copeman contends that the court’s judgment of acquittal is inconsistent with

the enhancement. W e disagree. Section 924(c) requires proof that the defendant

“during and in relation to any crime of violence or drug trafficking crime . . . uses

or carries a firearm, or . . . , in furtherance of any such crime, possesses a

firearm.” In contrast, § 2D1.1(b)(1) says, “If a dangerous weapon (including a

firearm) w as possessed, increase by 2 levels.” Application Note 3 to § 2D1.1

states: “The adjustment should be applied if the weapon was present, unless it is

clearly improbable that the weapon was connected with the offense. For example,

the enhancement would not be applied if the defendant, arrested at his residence,

had an unloaded hunting rifle in the closet.” Thus, under § 2D1.1(b)(1), “the

government has the burden of proving merely that a weapon was present in some

physical proximity to the offense. Once this burden is met, the commentary to the

Guidelines allows the defendant to demonstrate that it was ‘clearly improbable’

that the gun was connected to the offense.” United States v. Gomez-Arrellano,

                                         -26-
5 F.3d 464, 466 (10th Cir. 1993) (internal citation omitted). In considering

M r. Copeman’s motion for judgment of acquittal on the § 924(c) charge, the

primary dispute was not over the presence of the firearm where drug transactions

occurred. Arguing for acquittal on Count Four, M r. Copeman’s counsel said:

“[T]here has been no evidence that [the firearm] was in any way used in

furtherance— or possessed in any furtherance of the drug trafficking crime. W hat

you have basically is that it w as simply possessed.” R. Vol. XVI at 1333-34.

Counsel acknowledged that the government “put on [evidence] that at some other

time there had been some sales take place and that the gun was there because they

have brought that out with a witness or two, but . . . there is nothing that would

indicate that we used and carried and possessed in furtherance of.” Id. at 1334.

The dispute, therefore, regarded whether there was, in the district court’s words,

“active employment of the firearm,” R. Vol. XVII at 1459 (internal quotation

marks omitted), w hich is not required for the enhancement. Additionally,

M r. Copeman’s PSR , to which he did not object, states that the “firearm was

recovered from the bathroom where, according to witnesses, drug transactions had

taken place.” R. Vol. II at 7.

      M r. Copeman also challenges a two-level increase under § 3B1.1(c), based

on the district court’s finding that he “was an organizer, leader, manager, or

supervisor” in the offense. He argues that the jury would not have found the facts




                                         -27-
necessary for this enhancement beyond a reasonable doubt. Describing the

reasons for this enhancement, the unchallenged PSR states:

      [I]t appears as though Copeman’s primary role was that of a
      distributor of methamphetamine. However, witnesses did describe
      that M r. Copeman was the sole decision maker w ithin the conspiracy.
      He provided Ricky W illiams with a location to manufacture the
      drugs, instructed him when to manufacture the drugs and provided
      him with the money to purchase the precursors. Further testimony
      was provided that he would make a list of supplies for co-
      conspirators to purchase and provide them with the funds necessary
      to make the purchases.

R. Vol. II at 7. Section § 3B1.1(c) is “satisfied upon a showing that the defendant

exercised any degree of direction or control over someone subordinate to him in

the distribution scheme.” United States v. Backas, 901 F.2d 1528, 1530 (10th Cir.

1990). M r. Copeman argues: “W hile the judge found this was proven by a

preponderance of the evidence, it is not obvious that the jury would have found

that it was proven beyond a reasonable doubt. M r. Copeman was involved with

others, but it was not proven beyond a reasonable doubt that he was their leader,

organizer, manager or supervisor.” C opeman Aplt. Br. at 21-22. Beyond this

conclusory statement, however, M r. Copeman points to no evidence in the record,

nor does he attempt to impugn the PSR’s sources of information.

      W e resolve M r. Copeman’s claims on the fourth prong of the plain-error

test. “U nder the fourth prong of plain-error review , a court may exercise its

discretion to notice a forfeited error only if it seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Gonzalez-Huerta, 403

                                           -28-
F.3d at 736. Because the fourth prong imposes such a high burden,

Booker challenges are often resolved on the basis of the fourth prong rather than

the third. Gonzalez-Huerta, 403 F.3d at 736 (“W e need not determine whether

M r. Gonzalez-Huerta can satisfy this burden because even if he were to meet the

third prong, he must also satisfy the fourth prong to obtain relief.”).

M r. Copeman has not met the “demanding standard” imposed by the fourth prong.

Id. at 737.

       W e have . . . identified numerous non-exclusive factors that can
       guide our fourth prong analysis. First, we have noted that
       constitutional Booker errors will be noticed more freely. Another
       relevant inquiry is the relative strength or weakness of the evidence
       supporting the defendant’s sentence under the sentencing guidelines.
       Next, we may consider whether the Booker error substantially
       increased the defendant’s sentence. [O ther relevant factors include] a
       showing that objective consideration of the 18 U.S.C. § 3553(a)
       factors warrants a departure from the sentence suggested by the
       Guidelines, and other evidence peculiar to the defendant that
       demonstrates a complete breakdown in the sentencing process. . . .
       [and] whether the district court would simply reimpose the same
       sentence on remand, or whether instead the sentence would likely
       change to a significant degree if the case were returned to the district
       court for discretionary sentencing.

United States v. Lauder, 409 F.3d 1254, 1269-70 (10th Cir. 2005) (internal

quotation marks, citations, and brackets omitted).

       Starting with the last factor, although M r. Copeman w as sentenced at the

bottom of the G uidelines range, nothing in the record suggests that were this court

to remand, the district judge would not simply reimpose the same sentence. The

district court expressed no dissatisfaction with the Guidelines-required sentence.

                                         -29-
The second factor we have identified— the relative strength of the evidence

supporting the sentence— also cuts against a finding of plain error. M r. Copeman

made no objection at sentencing to the presentence report. Also, he has not

pointed to anything in the lengthy trial record that would call into question the

facts found by the judge for sentencing purposes. He points only to the district

court’s grant of a judgment of acquittal on the § 924(c) charge. But, as we noted

above, the evidence supporting the Guidelines enhancement appears undisputed.

      Another factor is whether an objective consideration of the § 3553(a)

factors would warrant a departure. M r. Copeman notes his lack of criminal

history, but that history, of course, is considered under the G uidelines. He also

points to his age (he was 52 at the time of sentencing), and health (the PSR

indicates that in October 2003 M r. Copeman w as hospitalized with congestive

heart failure and that he suffers from diabetes). Age and health may play some

role in sentencing, but this role should be minor absent extraordinary

circumstances. Cf. USSG §§ 5H1.1 (age), 5H1.4 (physical condition). Certainly,

nothing in the record suggests a “complete breakdown in the sentencing process.”

Lauder, 409 F.3d at 1269 (internal quotation marks omitted).

      The final factor is whether the Booker error substantially increased

M r. Copeman’s sentence. W ithout the four-level increase that resulted from the

two enhancements, M r. Copeman’s sentencing range would have been 235 to 293

months; with the enhancement the range was 360 months to life— an increase of

                                        -30-
125 months at the base of the Guidelines ranges. This is a substantial increase.

See id. at 1270 (increase of 84 months is substantial). But this is the only factor

that w eighs in his favor.

      W e conclude that M r. Copeman has not established that the constitutional

Booker error in his sentencing “seriously affect[ed] the fairness, integrity, or

public reputation of judicial proceedings.” Gonzalez-Huerta, 403 F.3d at 736.

As w e stated in a similar case, “[O]nly one factor w eighs in [his] favor, which is

that the judge-found facts substantially increased the applicable guideline

range. . . . Nonetheless, this one factor— like any of the factors we have

identified in our prior cases— is not dispositive, especially given the essentially

unrebutted evidence relied on by the district court.” Lauder, 409 F.3d at 1270-71.

      W e reach the same result with respect to M r. Copeman’s claim of

nonconstitutional Booker error, where the plain-error test is applied even more

rigorously. To satisfy the fourth prong of plain error on a nonconstitutional

Booker claim, M r. Copeman would have to show that allowing the sentence to

stand “would be particularly egregious and would constitute a miscarriage of

justice.” United States v. Dazey, 403 F.3d 1147, 1178 (10th Cir. 2005) (internal

quotation marks omitted). M r. Copeman has not made such a showing. See

United States v. Treto-M artinez, 421 F.3d 1156, 1161 (10th Cir. 2005). There

was no plain error in M r. Copeman’s sentencing.




                                         -31-
      M s. Blunt also contends that the district court comm itted constitutional

Booker error in finding the drug quantity and nonconstitutional Booker error in

applying the Guidelines mandatorily. W e conclude that she also has not satisfied

the fourth prong of plain error.

      The sole factor that cuts in favor of plain error in M s. Blunt’s case is the

substantial increase in the sentencing range that resulted from the district court’s

finding concerning drug quantity. The jury found that the conspiracy joined by

M s. Blunt involved more than 500 grams of methamphetamine. The

corresponding base offense level was 32. The PSR calculated a base offense level

of 38, based on a higher drug quantity, but then applied a four-level decrease for

M s. Blunt’s minimal role in the offense, leaving her at total offense level 34.

W ithout the court’s finding concerning drug quantity, but still considering the

four-level minimal-participant reduction, see United States v. Clark, 415 F.3d

1234, 1238 (10th Cir. 2005), M s. Blunt’s offense level would have been 28, with

a sentencing range from 78 to 97 months. The drug-quantity finding increased

the range to 151 to 188 months. This is a substantial increase.

      But none of the other factors support a finding of plain error. The evidence

supporting the drug quantity is undisputed. The jury did not find that the offense

involved only 500 grams of methamphetamine, but “in excess of” that amount.

R. Vol. I Doc. 119. Additionally, M s. Copeman raised no objection to the PSR

and points to nothing in the record that would indicate that the district court’s

                                         -32-
finding was in error. Nor would an objective view of the record show that a

departure w ould be appropriate under the § 3553(a) factors. Speaking on her ow n

behalf at sentencing, M s. Blunt pointed out that she had a seven-year-old daughter

whose mother and father were both going to jail. Her counsel added that she had

been convicted of only a single count of conspiracy and asked the court “to

recognize the relative difference in the defendants in this case and take into

consideration her family responsibilities and grant her w hatever leniency the court

can see fit in this case.” Supp. R. (Blunt Sentencing) at 3. But the difference

between the roles of M r. Copeman and M s. Blunt was reflected in the four-level

decrease M s. Blunt received for her minor role, and the two-level increase

M r. Copeman received for his role. A nd, like age and health, family

circumstances should be considered only in exceptional circumstances. Cf. USSG

§ 5H1.6. There is nothing in the record indicating that the district court would

impose a lesser sentence on remand, and there was no breakdown of the

sentencing process. W e conclude that M s. Blunt has not satisfied the fourth

prong of plain error with respect to either her constitutional Booker claim or her

nonconstitutional claim.




                                         -33-
V.   C ON CLU SIO N

     W e AFFIRM the judgment of the district court.

                                   ENTERED FOR THE COURT


                                   Harris L Hartz
                                   Circuit Judge




                                     -34-
