                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-5117


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

CHARLES ELLIS,

                  Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Parkersburg.  Joseph R. Goodwin,
Chief District Judge. (6:06-cr-00037-1)


Submitted:    November 12, 2008            Decided:   November 26, 2008


Before WILKINSON, MICHAEL, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Barron M. Helgoe, VICTOR VICTOR & HELGOE LLP, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Steven I. Loew, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Charles   Ellis    appeals      his    convictions    and    324-month

sentence   imposed   for   conducting        straw   purchases    of     firearms

through four women in the Parkersburg, West Virginia, area so he

could resell the firearms for profit in Boston.                   He was also

convicted of tampering with two of the witnesses.                      On appeal,

Ellis argues that his right to a fair trial was violated by

improper testimony and a remark by the prosecutor in closing

statements.     He also contends that his sentence is unreasonable.

Finding no error, we affirm.

           Ellis did not make any contemporaneous objections to

any of the evidentiary errors alleged on appeal.                Therefore, the

errors are subject to plain error review.                  United States v.

Olano, 507 U.S. 725, 731-33 (1993).              Four conditions must be met

before this court will notice plain error: (1) there must be

error; (2) it must be plain under current law; (3) it must

affect substantial rights, typically meaning the defendant is

prejudiced by the error in that it affected the outcome of the

proceedings; and (4) the error seriously affected the fairness,

integrity, or public reputation of judicial proceedings.                   Id. at

732-37.

           Ellis first argues that the testimony of Agent Michael

Turner that five guns were found at crime scenes and calling the

guns   “crime   guns”   was   highly       prejudicial,   inflammatory,       and

                                       2
unnecessarily        tied     him    to       at   least          four      unspecified        crimes.

Ellis    contends      that      this     amounted           to    a     character        attack      and

deprived him of his Fifth Amendment right to a fair trial.                                            The

Government maintains that the straw purchases and resales in

Boston were criminal acts, making the firearms “crime guns,” and

further that, because at least four firearms were recovered from

crime    scenes,      they       were    in    fact       accurately           characterized           as

crime guns.

              We conclude that it was not error for Agent Turner to

refer    to   the     firearms       recovered           from       crime       sites     as    “crime

guns.”     Ellis does not contest that the firearms were recovered

from crime scenes and there was no testimony that Ellis was

involved      in     any     overt       acts          related         to     the    crimes       later

associated      with       the     guns.           Therefore             there      is    no    error,

particularly         one      which       “seriously               affects          the    fairness,

integrity or public reputation of judicial proceedings.”                                        United

States v. Brewer, 1 F.3d 1430, 1435 (4th Cir. 1993).

              Next,    Ellis        contends           that       the    testimony        of    Delano

Gaskins, a former inmate with Ellis, that he decided not to

traffic in guns with Ellis because he had “changed around by the

grace    of   God”    was     unduly      prejudicial              and       improperly        used    to

bolster the credibility of this Government witness who was a

convicted      felon.            Ellis     seeks         a    new           trial    to    cure       the



                                                   3
misconduct.          The Government replies that any error is harmless,

if any error resulted at all.

            A prosecutor may neither vouch for nor bolster the

testimony       of   a   Government      witness         in     arguments      to   the    jury.

United States v. Sanchez, 118 F.3d 192, 198 (4th Cir. 1997).

Vouching    generally          occurs    when          the     prosecutor       indicates      a

personal    belief       in     the   credibility              of   a    witness.         United

States v. Lewis, 10 F.3d 1086, 1089 (4th Cir. 1993).                                      “While

improper vouching must generally come from the prosecutor’s own

mouth,      a        prosecutor’s        solicitation               of     assertions        of

trustworthiness          from     government              witnesses         may     also      be

impermissible vouching.”              Id. (citing United States v. Piva, 870

F.2d 753, 760 (1st Cir. 1989)).

            Impermissible             vouching           and        bolstering       do     not

necessarily mandate retrial, however.                          Instead, “[t]he relevant

question is whether the prosecutor[’s] comments so infected the

trial    with    unfairness      as     to    make       the    resulting      conviction     a

denial of due process.”                 Sanchez, 118 F.3d at 198 (internal

quotation       marks    omitted).           In       making    this     determination,       we

examine “(1) the degree to which the comments could have misled

the jury; (2) whether the comments were isolated or extensive;

(3)   the   strength      of    proof    of       guilt       absent     the   inappropriate

comments; and (4) whether the comments were deliberately made to

divert the jury’s attention.”                Id.

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           The      Assistant        United       States    Attorney        (AUSA)     asked

Gaskins    whether       he    agreed     to       Ellis’s       suggestion      that     he

illegally sell guns.           Gaskins simply replied, “[n]o.”                   The AUSA

then asked, “[w]hy not?”              The Government did not linger over his

answer.    Nor did the AUSA refer to the answer in his closing

statement.         The   testimony       does       not    implicate        impermissible

bolstering requiring remand.              The remark was isolated, did not

mislead the jury as to relevant facts, was slight compared to

the rest of the evidence, and does not appear to have been

deliberately       elicited      to     divert      the     jury’s        attention     from

Gaskins’ status as a felon.                   See Sanchez, 118 F.3d at 198.

Therefore there was no error, plain or otherwise.

           During closing, the AUSA stated that the women who

purchased firearms had not purchased firearms since the straw

purchases--a fact not in the record.                       Ellis contends that this

was testifying to facts not in evidence.                           Although it was a

short statement, Ellis argues it was a broad assertion, which

tended to mislead the jury.               Ellis states that, although there

was   no   contemporaneous            objection      made     to     the     comment,     it

affected     the    fundamental        fairness       of    the     trial     because     it

involved the five strongest witnesses against him.

           A       prosecutor’s       improper       closing        argument     may     “so

infect[]   the      trial     with    unfairness      as    to     make    the   resulting

conviction a denial of due process.”                       United States v. Wilson,

                                              5
135 F.3d 291, 297 (4th Cir. 1998) (quoting Darden v. Wainwright,

477 U.S. 168, 181 (1986)) (internal quotation marks omitted).

In determining whether a defendant’s due process rights were

violated      by   a     prosecutor’s      closing     argument,       this     court

considers whether the remarks were, in fact, improper, and, if

so, whether the improper remarks so prejudiced the defendant’s

substantial rights that the defendant was denied a fair trial.

Id.

           We conclude that even if the AUSA’s isolated remark

was improper, it did not so prejudice Ellis’s substantial rights

as to deny him a fair trial.                  Although the remark was about

facts not in evidence and involved the witnesses who purchased

firearms for Ellis, it did not address a crucial element of the

charges unsupported by other evidence.               Considering the isolated

remark and the totality of the evidence as a whole, the remark

was not unduly prejudicial.

              Finally,    Ellis   argues      that   together    the    crime    guns

testimony, Gaskins’ testimony, and the AUSA’s allegedly improper

remark   in    closing     resulted      in   cumulative    error      that     would

require a new trial.            However, no error resulted and therefore

the cumulative error analysis is not necessary.

           Ellis       argues     that     his   sentence       is     procedurally

unreasonable because the district court imposed it prior to the

Supreme Court’s decision in Gall v. United States, 128 S. Ct.

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586,   597     (2007),     and    that      the       court     did    not       fully    consider

whether    a      sentence    closer        to    the       statutory       minimums      on    each

count, which would require a variance far below the low end of

the Guidelines range, was reasonable.                           Ellis contends that the

court abused its discretion by presuming reasonableness of the

Guidelines range.

               A sentence is reviewed for abuse of discretion, Gall,

128 S. Ct. at 597, with the review encompassing both procedural

soundness and substantive reasonableness.                             Id.     In Gall and in

Kimbrough v. United States, 128 S. Ct. 558 (2007), the Supreme

Court clarified the sentencing judge’s authority to impose a

sentence       outside     the    Guidelines            range     “based      solely       on    the

judge’s view that the Guidelines range fails properly to reflect

§   3553(a)       considerations.”                Kimbrough,          128    S.    Ct.     at    575

(internal quotation and citation omitted).

               Ellis   was     sentenced          before       Gall    and       Kimbrough      were

decided, so the district court did not have the benefit of those

decisions.          Either     treating          the        Guidelines      as     mandatory     or

failing      to    consider      the    §    3553(a)          factors       adequately         would

constitute a “significant procedural error.”                                Gall, 128 S. Ct.

at 597.        However, in this case, after stating its belief that

the Guidelines range was too severe, the court went on to impose

a   sentence       three     years     below      the        360-month       low    end    of   the

Guidelines        range.      Nothing        in       the    record    indicates         that    the

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court   believed     that      it   could     not     vary     further    downward.

Although    Ellis   claims     that    the    court     erroneously       applied    a

presumption of reasonableness to the Guidelines range, it varied

downward and there is no indication that the court was unaware

of the applicable statutory minimum sentences.                       Finally, the

court   considered      the    §    3553(a)    factors       in    fashioning     the

sentence.       We therefore find that Ellis has not demonstrated

procedural error.

             We therefore affirm the convictions and sentence.                      We

deny Ellis’s pro se motion to file a pro se supplemental brief.

We   dispense    with   oral    argument      because    the      facts   and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                           AFFIRMED




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