                United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-2433
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                Terrance C. Jackson

                    lllllllllllllllllllll Defendant - Appellant
                                    ____________

                   Appeal from United States District Court
                  for the District of North Dakota - Bismarck
                                 ____________

                          Submitted: December 15, 2016
                             Filed: March 27, 2017
                                  [Published]
                                 ____________

Before KELLY and MURPHY, Circuit Judges, and MONTGOMERY,1 District
Judge.
                          ____________

KELLY, Circuit Judge.




     1
       The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota, sitting by designation.
       A jury convicted Terrance C. Jackson of second-degree murder and assault
with a deadly weapon for the March 27, 2014, killing of Gerald Smith on the Fort
Berthold Indian Reservation in New Town, North Dakota. The district court2
sentenced Jackson to 480 months of imprisonment and five years of supervised
release. Jackson appeals the district court’s denial of his suppression motion, his
motion in limine to admit evidence of Smith’s violence, his request for surrebuttal
argument at closing, his motion to continue sentencing, and his requests for a
sentencing variance and a continuance of the sentencing hearing. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and, finding no reversible error, we affirm.

                                   I. Background

      On March 27, 2014, Smith and his friend Neal Hale were on the side of the
highway picking up trash. Jackson was driving in his pickup truck with his cousin
when he saw Smith, and he pulled over. Hale approached the truck, and Jackson told
him that Smith had pulled a gun on him a few days earlier and he just wanted to talk
to him. Jackson got out of the truck, removing his hat and sunglasses, and Jackson
and Smith approached one another. Smith hit Jackson in the face with his fist,
causing Jackson to stagger backward. The two men then began swinging at each
other with Smith making contact once more, elbowing Jackson in the body. Next,
Jackson reached into his pocket and pulled out a knife, which he swung at Smith
twice. The knife struck Smith in the chest on the second swing. Smith stumbled
toward the roadway and collapsed as Jackson jumped into the pickup, which his
cousin was now driving, and drove off. Smith died at the scene.

      As they drove away, Jackson said, while sobbing, “I think I killed him.”
Jackson’s cousin pulled over and got out of the car, and Jackson continued on to the


      2
       The Honorable Daniel L. Hovland, United States District Judge for the District
of North Dakota.

                                         -2-
apartment where his girlfriend was staying. When he entered, his girlfriend was lying
on the couch. Jackson laid the knife he used to stab Smith on her chest, and told her
he had stabbed Smith. A friend then braided and cut Jackson’s long hair. As is
traditional in his culture, Jackson gave the braid to his brother to give to their mother.
Shortly thereafter, the police arrived at the apartment, found Jackson hiding in a
closet, and arrested him.

      Officers arrested Jackson pursuant to a federal warrant for violations of
conditions of supervised release from a 2011 burglary conviction as well as on tribal
charges. A tribal officer read Jackson his Miranda warnings and took him to the
Gerald Tex Fox Justice Center (Justice Center) in New Town, North Dakota. A few
hours later, several officers questioned Jackson and received consent to swab his
hands. Prior to trial, Jackson moved to suppress statements he made during this
questioning, which the district court denied.

       Jackson pursued a self-defense theory at trial. Jackson presented evidence that
his family and Smith’s family had a history of violent altercations with one another.
Most recently, about two days prior to the stabbing, Smith pointed a gun at Jackson
while they were at Jackson’s cousin’s house. Prior incidents included Smith hitting
Jackson’s sister in the face earlier in 2014 and Smith stabbing Jackson in the torso in
2006 when the two were 15 years old. To support his self-defense claim, Jackson
moved in limine to admit these prior violent acts by Smith, among many others, as
well as evidence of Smith’s reputation for violence. The district court permitted some
evidence of Smith’s prior violence at trial but excluded certain specific acts and
related evidence.

       A four-day jury trial commenced on December 14, 2015, at which the
government called seventeen witnesses and the defense called six, including Jackson.
Prior to trial and again before closing, Jackson moved to present a surrebuttal closing
argument, contending that Federal Rule of Criminal Procedure 29.1, which controls

                                           -3-
the order of closing arguments, was unconstitutional as applied to him. In each
instance, the district court denied the request for surrebuttal argument. After asking
a question regarding the elements of the lesser-included voluntary manslaughter
charge, the jury found Jackson guilty of second-degree murder and assault with a
deadly weapon.

      Using the 2015 Sentencing Guidelines, the Presentence Investigation Report
(PSR) determined Jackson had an offense level of 38 and a criminal history category
of VI for a sentencing range of 360 months to life. Jackson’s criminal history
category was raised from V to VI because he was designated a career offender due
to convictions for burglary and aggravated domestic assault. Even without career
offender status, Jackson’s sentencing range would have been unchanged at 360
months to life. After the issuance of the PSR, Jackson moved to continue the
sentencing hearing for one month to obtain a mental health evaluation to support an
argument for a variance from the Guidelines range. The government opposed the
continuance, and the district court denied it.

      At the May 16, 2016, sentencing hearing, the government presented testimony
from Smith’s family and a witness to the crime, and the defense offered the testimony
of Jackson’s mother and cousin. After hearing the arguments of counsel, including
Jackson’s request for a variance based on Smith’s violent history, the district court
sentenced Jackson to 480 months imprisonment on the second-degree murder count
and 120 months imprisonment on the assault with a deadly weapon count, to be
served concurrently, followed by five years of supervised release.

    Jackson now appeals his conviction and sentence, arguing the district court
committed multiple errors before, during, and after trial.




                                         -4-
                                    II. Discussion

       Jackson appeals rulings made by the district court at four stages of the
proceedings. First, Jackson argues the district court erred in denying his motion to
suppress statements he made to officers six hours after his arrest as the product of
unlawful interrogation in violation of his Miranda rights. Second, Jackson contends
the district court erred in excluding certain evidence of Smith’s violence. Third,
Jackson challenges the district court’s refusal to permit his counsel to offer a
surrebuttal closing argument. Finally, Jackson asserts that his sentence is
procedurally and substantively unreasonable and that the district court erred in
refusing to continue his sentencing hearing. The court addresses these arguments in
turn.

A. Motion to Suppress

       Before trial, Jackson moved to suppress all the statements he made to
interviewing officers on the day of his arrest as a violation of his Miranda rights. The
court held a suppression hearing at which tribal officer Jacob Gadewoltz, Federal
Bureau of Investigation (FBI) Agent Chad Coulter, and the defendant testified.
Following the hearing, the district court denied the motion, concluding that the
officers’ questions did not amount to interrogation and thus did not violate Miranda.
We review the district court’s factual findings for clear error and its legal conclusions
de novo. See United States v. Laurita, 821 F.3d 1020, 1023 (8th Cir. 2016).

        Jackson was arrested at 5:13 p.m., two hours after Smith’s death, pursuant to
tribal charges and a federal warrant dated March 19, 2014, for violating the terms and
conditions of supervised release from a 2011 burglary conviction. Officer Gadewoltz
arrested Jackson, read him Miranda warnings, and took him to the Justice Center.




                                          -5-
       FBI Agents Coulter and Bruce Bennett and Bureau of Indian Affairs Agent
Gerald White went to the Justice Center to swab Jackson’s fingers for DNA evidence
and to attempt to interview him. They set up in the jail administrator’s unoccupied
office, arranging four chairs for the three agents and Jackson. Jackson was escorted
to the office at 9:53 p.m. and was seated, unrestrained, in the empty chair closest to
the door. Agent Coulter described Jackson as looking “sick and exhausted,” sitting
with his arms folded and bent over.

       Agent Coulter, who took notes during the interview and later drafted a report,
asked Jackson for information about his family, address, and date of birth, which
Jackson provided. Agent Bennett showed Jackson a copy of the federal warrant and
asked him if he knew why he was detained. Jackson said he knew of the warrant, but
that he did not understand why he was in jail. Jackson also provided the name of his
probation officer at the agent’s request.

       Then, Agent Coulter asked and received Jackson’s consent to swab his hands.
Toward the end of the swabbing process, Agent Bennett asked about the events from
earlier in the day, and Jackson responded that he would prefer to have an attorney
present to discuss it. According to Agent Coulter’s testimony, Jackson then
“voluntarily blurted out” that he had been “slamming meth,” that he had been up for
several days since his birthday, and that the only sleep he had was in the jail just prior
to the interview. Agent Coulter also testified that Jackson used the phrases “fucked
up” and “don’t remember.” Contrary to Agent Coulter, Jackson testified that these
statements were made in response to questions from the officers regarding his drug
use and how long he had been awake.

       Following these statements, Jackson pulled his knees to his chest and clutched
his arms around them. Agent Coulter testified that at this point the officers tried to
ascertain Jackson’s mental and physical state. They asked him about medications and
allergies and to rate his well-being on a scale of one to ten. Jackson responded he

                                           -6-
was not taking any prescription medications, had no allergies, and rated his well-
being at a level three. Agent Bennett also asked Jackson, “Do you know when you
last cut your hair?” Jackson answered that he did not know. Agent Coulter testified
that this question was posed because Jackson’s t-shirt had a substantial amount of hair
along the shoulders and the officers were trying “to determine if he even knows what
that day’s date was.”

      At the end of the interview, the conversation returned to the revocation warrant
and Jackson stated that he wanted an attorney present to discuss it. Jackson was
returned to his cell at 10:14 p.m.

        On appeal, Jackson challenges the district court’s conclusion that the officers’
questions during this interview did not amount to interrogation in violation of his
Miranda rights. Once an accused who is in custody “expresse[s] his desire to deal
with the police only through counsel,” he shall not be “subject to further
interrogation by the authorities until counsel has been made available to him, unless
the accused himself initiates further communication, exchanges, or conversations
with the police.” Edwards v. Arizona, 451 U.S. 477, 484–85 (1981). It is undisputed
that Jackson was in custody at the time of the interview, that Officer Gadewoltz read
Jackson his Miranda rights immediately following his arrest, and that Jackson
invoked his right to counsel twice during the interview. Counsel was not made
available to Jackson during the interview, nor does the government argue that Jackson
initiated further communication with the officers. Therefore, if the interview of
Jackson amounted to interrogation, then it was in violation of Jackson’s Fifth
Amendment right to counsel, and his statements should have been suppressed. See
id. at 486 (“Absent such interrogation, there would have been no infringement of the
right [to counsel] that Edwards invoked . . . .”); see also Arizona v. Mauro, 481 U.S.
520, 527 (1987) (holding that an officer’s actions following the defendant’s
invocation of right to counsel did not amount to interrogation in violation of Miranda
and upholding admission of the conversation).

                                          -7-
       Interrogation occurs when a law enforcement officer engages in “either express
questioning or its functional equivalent,” which includes “any words or actions on the
part of the police (other than those normally attendant to arrest and custody) that the
police should know are reasonably likely to elicit an incriminating response from the
suspect.” Rhode Island v. Innis, 446 U.S. 291, 300–01 (1980) (footnotes omitted).
“The latter portion of this definition focuses primarily upon the perceptions of the
suspect, rather than the intent of the police.” Id. at 301. Because Jackson made
several statements purportedly in response to separate questions from the officers, we
analyze each statement separately. See Pennsylvania v. Muniz, 496 U.S. 582,
590–605 (1990).

      1. Drug Use and Lack of Sleep

       Jackson argues that the district court should have suppressed his statements
regarding drug use and lack of sleep. At the hearing, Agent Coulter and Jackson
offered contrary testimony: Agent Coulter testified that Jackson volunteered that he
had been awake for days, injected methamphetamine, and used the phrases “fucked
up” and “don’t remember;” whereas Jackson testified that these statements were made
in response to specific police questions. The district court adopted Agent Coulter’s
version of the events, concluding that Jackson “voluntarily stated” this information.
“Volunteered statements of any kind” are not the product of police interrogation and
thus “are not barred by the Fifth Amendment.” Miranda v. Arizona, 384 U.S. 436,
478 (1966); see United States v. Lockett, 393 F.3d 834, 837 (8th Cir. 2005) (holding
that statements that “were not made in response to police questioning” “were
voluntarily made, and their admission was not in violation of Miranda”). We cannot
find that the district court clearly erred in crediting Agent Coulter’s testimony over
Jackson’s. See United States v. Tail, 459 F.3d 854, 857–58 (8th Cir. 2006) (finding
no clear error in the district court’s adoption of the agent’s account of his
conversation with the defendant).



                                         -8-
      2. Physical and Mental Health

       Following Jackson’s voluntary statements about drug use and sleep
deprivation, he curled up into the fetal position in his chair, and the officers asked
Jackson if he took any prescription medications or had any allergies and asked him
to rate his well-being on a scale of one to ten. Agent Coulter testified the questions
were motivated by a concern for Jackson’s physical and mental health. Jackson
argues that his responses should be excluded as the product of interrogation.

      Given the very limited nature of the questions asked by the officers regarding
Jackson’s health, we conclude that they were not “reasonably likely to elicit an
incriminating response from the suspect.” Innis, 446 U.S. at 301. The question
regarding medications and allergies required only a yes or no response, and the rating
of well-being required only a numerical response. From Jackson’s perspective, these
questions would not reasonably be viewed as seeking incriminating evidence.

      Moreover, because Jackson voluntarily disclosed that he had been awake for
several days and using drugs, the agents’ follow-up questions regarding his health do
not constitute an interrogation. See Butzin v. Wood, 886 F.2d 1016, 1018 (8th Cir.
1989) (“An officer’s attempt to seek clarification of an ambiguous statement is not
generally construed as interrogation for Miranda purposes if the question does not
enhance the defendant’s guilt or raise the offense to a higher degree[.]” (internal
quotation omitted)); see United States v. Jones, 842 F.3d 1077, 1083 (8th Cir. 2016)
(holding that officer who asked defendant what he meant after he said “You finally
fucking got me” was admissible because “[a]n officer’s request for clarification of a
spontaneous statement does generally not amount to interrogation” (alteration in
original) (internal quotation omitted)).

      Jackson argues that because the officers knew his federal warrant was in part
for methamphetamine use, he had not slept, and he had recently been high on meth,

                                         -9-
they were aware of his “unusual susceptibility” to questioning, particularly about
medications and mental health. Innis, 446 U.S. at 302 n.8 (“Any knowledge the
police may have had concerning the unusual susceptibility of a defendant to a
particular form of persuasion might be an important factor in determining whether the
police should have known that their words or actions were reasonably likely to elicit
an incriminating response from the suspect.”). However, this knowledge would have
also raised concerns about Jackson’s physical and mental health and the limited
questioning related to those concerns did not represent an attempt to persuade him to
speak about the crimes.

      3. Haircut

      Finally, Jackson argues that Agent Bennett’s question about the last time he cut
his hair exceeded the scope of permissible questioning and became interrogation.
Adopting Agent Coulter’s explanation, the district court lumped the haircut question
in with those concerning medications, allergies, and well-being, finding them
permissible because they were “meant to ascertain the status of Jackson’s health” and
because the agents had no reason to know “such questions would elicit any
incriminating response.”

      Regardless of its relevance, if any, to assessing Jackson’s health, the question
regarding Jackson’s last haircut crossed the line into improper interrogation. At the
suppression hearing, Agent Coulter testified that prior to interviewing Jackson, he
and Agent Bennett went to the apartment where Jackson was arrested, interviewed
witnesses, and discussed the case with other officers. At the apartment, there “was
discussion about recently cut hair” and the officers learned that the murder suspect
“had his hair cut that evening at that apartment.” Because the officers had prior
knowledge about the murder suspect having recently cut his hair, they should have
known that the question regarding Jackson’s last haircut “was reasonably likely to



                                        -10-
elicit an incriminating response” from Jackson regarding the murder. Innis, 446 U.S.
at 301 (footnote omitted).

       In United States v. Cowan, 674 F.3d 947 (8th Cir. 2012), an officer was
questioning the defendant, who was suspected of trafficking crack cocaine from
Chicago, in an apartment. The officer first asked how the defendant arrived at the
apartment, which the court concluded was a permissible request for basic
identification information. Id. at 958. The defendant responded that he arrived by
bus from Chicago. The officer next asked why the defendant had car keys if he
arrived by bus. Id. The court concluded this question constituted an interrogation
under Miranda because the officer “had information linking both the crack cocaine
and Cowan to Chicago” and then “asked about an item the officers suspected linked
the defendant to a crime.” Id. Like in Cowan, the agents had information linking
both the murder suspect and Jackson to a recent haircut. They should have been
aware that the question regarding his haircut called for an answer that was directly
related to the events earlier in the day—a topic that Jackson refused to discuss
without counsel present. Agent Bennett knew that the suspect cut his hair at the
apartment he fled to after the murder, and he suspected Jackson was responsible for
stabbing Smith. Thus, he “should reasonably [have been] aware that the information
sought,” i.e., that Jackson had a haircut earlier that day, was “directly relevant” to
linking Jackson “to the substantive offense.” Id. (alteration in original) (quoting
United States v. Brown, 101 F.3d 1272, 1274 (8th Cir. 1996)).

      The government argues that even if the district court should have suppressed
Jackson’s response of “I don’t know” to the haircut question, admission of the
statement was harmless error. The haircut question and Jackson’s answer were
brought out several times at trial: during Agent Coulter’s direct examination,
Jackson’s cross examination, and the government’s closing argument. At closing, the
government relied on this exchange to challenge the “credibility of the defendant’s
testimony” at trial, arguing that if Jackson was “that lacking in memory” on the night

                                        -11-
of the incident such that he could not remember a haircut that occurred hours earlier,
then “you have reason to question how a year-and-a-half later, when he’s on the
witness stand, he’s able to give you all of those details.” Thus, the harm from
admission of the haircut exchange, if any, comes not from the fact that Jackson had
a haircut—which was introduced several times at trial by other witnesses3—but rather
in the injury to Jackson’s credibility.

       We recognize that a defendant’s credibility can be “vital to his self-defense
claim.” Fields v. Leapley, 30 F.3d 986, 991 (8th Cir. 1994). Where, as here, a
defendant relying on a self-defense theory testifies at trial, we must carefully guard
against improper admission of statements made by the defendant in violation of
Miranda that are used to attack his credibility. Cf. id. (holding that the government’s
two references during closing to defendant’s invocation of his Miranda rights in order
to impeach the credibility of his testimony at trial were not harmless error).
Nevertheless, “[t]he admission of statements obtained in violation of Miranda may
constitute harmless error where there remains overwhelming independent evidence
as to the defendant’s guilt.” United States v. Thomas, 664 F.3d 217, 223 (8th Cir.
2011) (quoting Chavez v. Weber, 497 F.3d 796, 805 (8th Cir. 2007)).

      At trial, Jackson admitted that he was responsible for Smith’s death, but argued
that the killing was done in self defense. Aside from Jackson, three other
eyewitnesses testified regarding the altercation between Jackson and Smith: Neal
Hale and two drivers on the roadway. All three supported the government’s theory
of the case. Moreover, Jackson’s cousin, brother, and girlfriend testified about
Jackson’s statements and actions immediately following the incident, which were

      3
       Several witnesses, including Jackson’s girlfriend, Jackson’s brother, the friend
who cut Jackson’s hair, and Jackson himself, testified that Jackson had his hair cut
on the day of the incident. See United States v. Eagle, 498 F.3d 885, 889 (8th Cir.
2007) (corroboration by other witnesses supports conclusion of harmless error).


                                         -12-
inconsistent with self defense. Thus, Jackson’s testimony was the primary evidence
in support of self defense.

      Considering the record as a whole, see United States v. Hasting, 461 U.S. 499,
508 (1983), it is “unlikely” that the single statement that Jackson did not know when
he cut his hair had a “major impact on the jury in determining whether [Jackson]
w[as] believable,” Flittie v. Solem, 775 F.2d 933, 944 (8th Cir. 1985) (en banc).
Aside from Jackson not remembering the haircut, there was substantial other evidence
introduced at trial which suggested that Jackson’s memory of the incident was
unreliable. Notably, the jury heard that Jackson voluntarily revealed to officers that
he had been using methamphetamine and had not slept. Jackson’s girlfriend and his
cellmate also testified that Jackson was under the influence of methamphetamine on
the day of the offense and did not remember what happened.

      Accordingly, although it was error to admit Jackson’s response to the officer’s
question regarding the last time he cut his hair, the admission was harmless.

B. Motion in Limine to Admit Smith’s Prior Violence

       Prior to trial, Jackson moved in limine to admit eight pieces of evidence
relating to Smith’s prior violence under Federal Rules of Evidence 404(b),4




      4
       Federal Rule of Evidence 404(b)(1) provides that prior acts are “not
admissible to prove a person’s character in order to show that on a particular occasion
the person acted in accordance with the character.” But, “[t]his evidence may be
admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.
R. Evid. 404(b)(2).


                                         -13-
404(a)(2),5 and 405(a).6 The district court permitted testimony regarding Smith
hitting Sabrina Grinnell in her jaw in March 2014, Smith hitting Jackson’s sister in
the face in January 2014, and Smith pulling out a gun and pointing it at Jackson and
his cousin in his cousin’s home a few days prior to Smith’s death. The district court
excluded the remainder of the evidence offered by Jackson, and he appeals four such
exclusions. We review the district court’s evidentiary rulings for abuse of discretion.
United States v. Drapeau, 644 F.3d 646, 654 (8th Cir. 2011).

       First, Jackson challenges the district court’s refusal to permit evidence of Smith
firing eight shots into Jackson’s home in 2006. The district court excluded the act
because Jackson failed to offer sufficient proof that Smith was responsible for the
shooting. Second, Jackson argues the district court should have allowed him to
introduce Smith’s 2013 stabbing of Wayne Zaste in the chest. The district court
excluded this incident because Jackson provided none of the facts of the stabbing,
such as where it took place or whether Smith was charged. As to these two specific
acts, “[t]he district court did not abuse its discretion in denying the offer of proof,”
as Jackson failed to provide the court with sufficient evidence to judge the relevance
and reliability of the evidence. United States v. Gregg, 451 F.3d 930, 936 (8th Cir.
2006) (affirming exclusion of prior bad acts of victim where the offer of proof


      5
      Pursuant to Federal Rule of Evidence 404(a)(2)(B), “a defendant may offer
evidence of an alleged victim’s pertinent trait.”
      6
          Federal Rule of Evidence 405(a) states:

               When evidence of a person’s character or character trait is
               admissible, it may be proved by testimony about the
               person’s reputation or by testimony in the form of an
               opinion. On cross-examination of the character witness,
               the court may allow an inquiry into relevant specific
               instances of the person’s conduct.


                                          -14-
identified “no specific instances of James’s prior conduct”); see United States v. Two
Eagle, 318 F.3d 785, 794 (8th Cir. 2003) (finding no abuse of discretion in excluding
evidence of the victim’s prior violence used to support the defendant’s self-defense
claim because “none of the proffered evidence indicated [the victim]’s level of
involvement in the prior incident” or when it occurred).

       Next, Jackson argues Wayne Zaste should have been allowed to offer
reputation and opinion testimony as to Smith’s violence. Any error in omitting this
testimony was harmless because it “presented no facts not already before the jury.”
Gregg, 451 F.3d at 936 n.7. Four other witnesses testified to Smith’s reputation for
violence. And the district court admitted several specific acts of Smith’s violence.
Additional testimony from Zaste on Smith’s violent character would have been
cumulative and, as the district court held, excludable under Rule 403. See United
States v. Waloke, 962 F.2d 824, 830 (8th Cir. 1992).

       Finally, Jackson contends the district court erred in excluding Smith’s stabbing
of Jackson in 2006, when the boys were about 15 years old. This presents a closer
question. Relying on United States v. Milk, 447 F.3d 593 (8th Cir. 2006), the district
court excluded the incident under Rule 403, concluding that its probative value was
weak because it was too remote in time, there were no independent witnesses, and no
criminal charges were ever filed. Milk, however, is distinguishable because there the
victim stabbed a mutual acquaintance, not the defendant, and the victim and
defendant had since remained close friends. Given that the present incident involved
the victim stabbing the defendant and was relevant to establishing a long-term feud
between the two, the 2006 incident had probative value. Nonetheless, the district
court was within its “wide discretion” in concluding that admission of this incident
would necessitate a collateral mini-trial as to the facts of the stabbing and the person
at fault. Waloke, 962 F.2d at 830. “[I]n the face of the admission of significant
testimony regarding [Smith]’s prior acts and reputation testimony regarding [Smith]’s



                                         -15-
violent character, we cannot say that the exclusion of other, cumulative character
evidence ‘had more than a slight influence on the verdict.’” United States v.
Bordeaux, 570 F.3d 1041, 1051 (8th Cir. 2009) (quoting Gregg, 451 F.3d at 933).7

C. Motion to Present Surrebuttal Closing Argument

       Federal Rule of Criminal Procedure 29.1 provides that the government presents
its closing argument first, the defense follows, and the government closes with its
rebuttal. Jackson argues that this rule violates his constitutional right to be proven
guilty beyond a reasonable doubt because it gives the government a strategic
advantage to speak twice and speak last. Jackson contends that because he bore the
burden of proof on his claim of self defense, he should have been afforded the
opportunity to deliver a rebuttal closing argument. Similarly, in United States v.
Byrd, 834 F.2d 145 (8th Cir. 1987), the defendant argued that because he carried the
burden of proving his affirmative defense of insanity, he had a constitutional right to
a rebuttal closing argument. Id. at 147. We rejected the argument, stating:

             Rule 29.1 does not establish a constitutional doctrine, but
             rather, provides a uniform rule of federal practice. The
             purpose of the rule is to give the defendant the chance to
             respond to the government’s case and argument in an
             informed manner. Rebuttal provides the government with
             the opportunity to respond to defendant’s arguments. It

      7
       Jackson claims for the first time on appeal that he was denied his Sixth
Amendment right to compulsory process because the district court excluded witnesses
that were essential to his case. Because Jackson does not identify the specific
witnesses or any of the testimony they would have presented, his claim must fail. See
United States v. Ladoucer, 573 F.3d 628, 635 (8th Cir. 2009) (“The defendant must
show that the excluded testimony ‘would have been both material and favorable to
his defense.’” (quoting United States v. Turning Bear, 357 F.3d 730, 733 (8th Cir.
2004))).


                                         -16-
             does not allow the government to bring in new matters.
             Consequently, the order of argument works no injustice
             upon the defendant. The district court has broad discretion
             to ensure a fair procedure in final arguments.

Id. (internal citation omitted). For the reasons articulated by the Byrd court, we reject
Jackson’s constitutional challenge to Rule 29.1.

       Furthermore, the district court did not abuse its discretion in denying Jackson
a rebuttal closing argument. See United States v. Miller, 621 F.3d 723, 729 (8th Cir.
2010). Where the government’s rebuttal does not exceed the scope of the defendant’s
closing argument, the court need not grant defendant a surrebuttal. See United States
v. Purkey, 428 F.3d 738, 759 (8th Cir. 2005). In its order denying Jackson’s pretrial
motion for surrebuttal argument, the district court stated that if the government raised
new matters in its rebuttal argument, it would entertain a renewed argument for
surrebuttal time. But Jackson did not renew his motion after the government’s
closing argument,8 nor did he argue on appeal that the government’s rebuttal
exceeded its proper scope. In fact, Jackson never proffered to the district court
specifically what he sought to rebut. Therefore, the district court did not err in
denying Jackson a surrebuttal closing argument.

D. Sentencing

       The district court sentenced Jackson to 480 months imprisonment, a sentence
within the Guidelines range of 360 months to life. Jackson argues the court erred in
failing to consider and grant a variance based on the victim’s conduct, to consider a


      8
       Prior to either party’s closing arguments, Jackson again moved for surrebuttal
argument. As the scope of the government’s rebuttal was still unknown at that time,
the renewal of the motion was premature.


                                          -17-
variance based on a forthcoming Guidelines amendment, and to grant a continuance
to conduct a mental health examination of Jackson.

       First, Jackson contends that the district court erred in failing to consider a
variance based on the factors outlined in USSG § 5K2.10. Because Jackson failed to
raise this procedural error before the district court, we review for plain error. See
United States v. Black, 670 F.3d 877, 881 (8th Cir. 2012). Section 5K2.10 provides
that “[i]f the victim’s wrongful conduct contributed significantly to provoking the
offense behavior, the court may reduce the sentence below the guideline range to
reflect the nature and circumstances of the offense.” USSG § 5K2.10. Although a
defendant may seek a departure pursuant to § 5K2.10, Jackson did not request a
departure before the district court; instead, he asked only that the court consider this
section in support of his request for a lower sentence. At sentencing, Jackson
presented additional evidence of Smith’s violence beyond that presented at trial,
including a 2010 prison beating of Jackson by Smith’s friends and Smith’s felonies
for stabbing and terrorizing.

        Contrary to Jackson’s contention, the district court considered and explicitly
rejected Jackson’s request for a variance under § 5K2.10. The district court stated
that it reviewed Jackson’s sentencing memorandum and exhibits, the trial testimony,
the sentencing testimony, and the arguments of counsel. At each of these stages, the
court heard evidence and argument regarding Smith’s violent conduct and the
application of § 5K2.10. After considering the evidence of the “long-standing family
disputes” between the Smiths and the Jacksons, the court refused to grant any
variances or departures. We find no error in the court’s consideration of the variance.




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       Second, Jackson also appears to argue that the district court erred in refusing
to grant a variance based on the factors in § 5K2.10.9 We review the district court’s
refusal to grant a downward variance for abuse of discretion. See United States v.
Sethi, 702 F.3d 1076, 1081 (8th Cir. 2013). The district court found that Smith’s
conduct did not contribute significantly to provoking the stabbing, stating:

             You might have hated Mr. Smith, but all you had to do was
             drive by that day when you saw him in the ditch, flip him
             the bird and keep driving, you know, move on with your
             life. You didn’t have to stop in the ditch, jump out of the
             vehicle, throw your hat off and go confront him. And I
             understand he threw the first punch, but you brought a
             knife to a fist fight, and it’s not a fair fight.




      9
       In deciding whether a sentence reduction is warranted under USSG § 5K2.10,
the court should consider:

             (1) The size and strength of the victim, or other relevant
             physical characteristics, in comparison with those of the
             defendant.
             (2) The persistence of the victim’s conduct and any efforts
             by the defendant to prevent confrontation.
             (3) The danger reasonably perceived by the defendant,
             including the victim’s reputation for violence.
             (4) The danger actually presented to the defendant by the
             victim.
             (5) Any other relevant conduct by the victim that
             substantially contributed to the danger presented.
             (6) The proportionality and reasonableness of the
             defendant’s response to the victim’s provocation.

USSG § 5K2.10.


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To the extent that Jackson challenges the district court’s failure to grant a variance,
we conclude that the court carefully considered the defendant’s and victim’s conduct
preceding the offense behavior and did not abuse its discretion in refusing to grant
the requested variance.

       Third, Jackson argues that the district court should have considered a variance
because under the forthcoming 2016 Sentencing Guidelines, his 2011 burglary
conviction would no longer be a qualifying offense for career offender status.
Jackson did not argue for a variance on this ground to the district court, therefore we
review only for plain error. See United States v. Elodio-Benitez, 672 F.3d 584, 586
(8th Cir. 2012). Our case law makes clear that “the district court was not required to
consider the pending guidelines amendment” before imposing sentence. United
States v. Riehl, 779 F.3d 776, 778 (8th Cir. 2015) (per curiam) (quoting United States
v. Allebach, 526 F.3d 385, 389 (8th Cir. 2008)). Nonetheless, the district court here
considered the upcoming change. It reviewed the PSR, which applied the 2015
Guidelines, but recognized that burglary would be stricken from the list of qualifying
offenses in 2016 and noted that this change would have “no impact on the defendant’s
guidelines range” of 360 months to life. At the sentencing hearing, the government
also explained this change and its lack of effect on the Guidelines range. Because the
district court was aware of the forthcoming Guidelines change and the revision had
no impact on Jackson’s sentencing range, we find no plain error in the district court’s
failure to sua sponte consider a variance based on a proposed amendment to the
Sentencing Guidelines. See Allebach, 526 F.3d at 389 (finding no error where district
did consider the effect of the amendment and the sentence was “within the guidelines
under the then-current guidelines and the amendment”).

      Finally, Jackson argues that the district court should have granted his motion
to continue his sentencing in order for him to obtain a mental health evaluation.
Continuances “should be granted only when the party requesting one has shown a



                                         -20-
compelling reason. We will reverse a district court’s decision to deny a motion for
a continuance only if the court abused its discretion and the moving party was
prejudiced by the denial.” United States v. Jones, 643 F.3d 275, 277 (8th Cir. 2011)
(quoting United States v. Lakoskey, 462 F.3d 965, 980 (8th Cir. 2006)). Jackson
moved for a continuance six days prior to the sentencing hearing, arguing that his
addiction issues, a 2010 head injury, and suicidal thoughts in 2014 warranted the
grant of additional time to obtain a psychological evaluation. He did not argue that
he lacked competence to proceed. Because the bases for the requested evaluation
were well known to the defense long before sentencing, Jackson had not
demonstrated a compelling reason for a continuance. Moreover, Jackson has not
established that the absence of a mental health evaluation prejudiced him at
sentencing. The PSR stated that Jackson had undergone a mental health evaluation
in 2010, and there is no basis to conclude that another evaluation would produce
different results or that those results would have led the court to impose a lesser
sentence. See id. at 278.

                                 III. Conclusion

      For the reasons stated herein, we affirm.
                      ______________________________




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