                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                 December 2, 2008
                            FOR THE TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                   Clerk of Court

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 08-3010
                                              (D.C. No. 2:06-CR-20169-CM-1)
    BROCKE A. GRAHAM,                                     (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before HENRY, Chief Judge, EBEL and GORSUCH, Circuit Judges.



         After Brocke A. Graham was convicted on five counts of a superseding

indictment involving drug trafficking, weapons possession, and witness

intimidation, the district court sentenced him to 235 months’ imprisonment. He

appeals both his conviction and sentence. Exercising jurisdiction under 18 U.S.C.

§ 3742 and 28 U.S.C. § 1291, we affirm.



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                  I. Background

      Upon suspicion that Mr. Graham twice sold small quantities of cocaine

base (crack cocaine) to confidential informants in controlled purchases, police

officers of the City of Leavenworth, Kansas, obtained a search warrant and raided

his apartment, seizing 32.98 grams of crack cocaine, a scale, cash, a handgun, an

“owe list,” and assorted drug paraphernalia. He was later arrested and, after a

jury trial, convicted of two counts of distribution of a quantity of a mixture and

substance containing a detectable amount of crack cocaine in violation of

21 U.S.C. § 841(b)(1)(C); one count of possession with intent to distribute a

mixture and substance containing five grams or more of crack cocaine, in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii); one count of being a felon

in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2);

and one count of witness tampering, in violation of 18 U.S.C. §§ 1512(b)(1)

and 2. He was acquitted of one count of possession of a firearm in relation to a

drug trafficking offense in violation of 18 U.S.C. § 924(c).

      Relying on a presentence investigation report (PSR) at sentencing, the

district court calculated Mr. Graham’s base offense level under the United States

Sentencing Guidelines to be 32, based on a finding that at least 150 grams but less

than 500 grams crack cocaine was attributable to him. See U.S.S.G.




                                         -2-
§ 2D1.1(c)(4). 1 The court also applied a two-level increase for possession of a

dangerous weapon, see id. § 2D1.1(b)(1), and a two-level increase for obstruction

of justice, see id. § 3C1.1, resulting in a total offense level of 36. Based on

Mr. Graham’s criminal history category of III, the Guidelines range for

imprisonment was 235 to 293 months. The court sentenced Mr. Graham at the

bottom of the range—235 months’ imprisonment on counts one, two, and three,

and 120 months’ imprisonment on counts five and six, to run concurrently.

                                   II. Discussion

      In appealing both his conviction and sentence, Mr. Graham asserts six

errors: (1) the prosecutor’s comments during rebuttal argument denied him a fair

trial; (2) the prosecutor improperly elicited testimony that bolstered an

informant’s credibility; (3) the district court erred in failing to inform the jury to

overlook an informant’s hearsay testimony; (4) the district court erred in

overruling a hearsay objection to a police officer’s testimony that he commenced

an investigation of Mr. Graham because other people told him they had heard

someone named “Brocke” was selling crack; (5) in determining his sentence, the

district court erred in applying the dangerous-weapon enhancement and in

calculating the drug quantity; and (6) the district court failed to apply a recent,




1
       The PSR used the November 1, 2007, edition of the Guidelines, and our
citations are to that edition unless otherwise noted.

                                          -3-
retroactive amendment to the Guidelines that reduces by two the base offense

level for crack cocaine offenses. We address each issue in turn.

      A. The prosecutor’s comments during rebuttal argument

      Mr. Graham first claims he was denied a fair trial because, during rebuttal

argument, the prosecutor improperly likened defense counsel to a magician who

uses tricks and smoke to divert attention away from the facts. The government

counters that the comments were in response to defense counsel’s statements,

made during voir dire and opening argument, that the prosecution’s case was

nothing but “‘smoke and fire.’” Resp. Br. at 7. The government also argues that

the prosecutor’s isolated comment could not have affected the outcome of the trial

in view of the overwhelming evidence presented against Mr. Graham.

      Because Mr. Graham did not object to the prosecutor’s comments at trial,

we review for plain error. See Fed. R. Crim. P. 52(b); United States v. Dazey,

403 F.3d 1147, 1170 (10th Cir. 2005). “To establish plain error, Mr. [Graham]

must demonstrate that the district court (1) committed error, (2) that the error was

plain, and (3) that the plain error affected his substantial rights.” Id. at 1174. “If

all these conditions are met, [we] may exercise discretion to correct [the error] if

[it] seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id.




                                           -4-
      As the government notes, defense counsel referred to smoke and fire during

voir dire and opening argument:

      I used the analogy during voir dire of where there’s smoke there’s
      fire, and that [it] looks like this guy’s a drug dealer, he certainly fits
      the profile, he’s kind of a young black kid. . . . We know he has a
      felony past. Gosh, that sounds like a drug dealer to me. And then
      you’re going to hear the government bring in all of the witnesses, but
      it’s all the smoke. But when it comes down to actually seeing the
      fire, there are going to be some pieces missing.

R., Vol. III, at 27:6-16. After discussing what pieces of evidence might be

missing, defense counsel stated:

      It seems really straight forward when you hear it from the
      prosecutor’s perspective, and I’ll acknowledge that at first blush, you
      see a lot of smoke and you think, wow, there must be a really big fire
      there. . . . But . . . I think you’re going to find that there’s [sic] some
      big gaps [in the evidence].

Id. at 35:9-19.

      In turn, at the outset of rebuttal closing argument, the prosecutor began:

      When you go to a magic show, [a] magician comes out, and he
      throws something on the ground, and this big puff of smoke comes
      up and diverts your attention, and then all of a sudden, something
      appears that wasn’t there before, and he does that for the purpose of
      diverting your attention and make you think he’s created some magic
      act, and really, what he’s done is blow smoke in your face to give
      you that optical illusion. And [defense counsel] in his opening and
      on voir dire talked about where there’s smoke, there’s fire. And . . .
      the arguments [defense counsel] has made[,] smoke and mirrors,
      that’s what that is, to divert your attention away from what the real
      evidence is.




                                          -5-
Id., Vol. V, at 587:10-22. The prosecutor continued on to discuss why the jury

should not be persuaded by defense counsel’s attempt to demonstrate gaps in the

evidence.

      We see little of concern in this exchange of metaphoric rhetoric.

Generally, a “prosecutor is afforded considerable latitude” in responding to

arguments by defense counsel. United States v. Brewer, 630 F.2d 795, 803

(10th Cir. 1980). But “[a]ttacks on defense counsel can at times constitute

prosecutorial misconduct” when they disparage counsel or suggest untruthfulness.

Wilson v. Sirmons, 536 F.3d 1064, 1119 (10th Cir. 2008). Here, the prosecutor’s

comments did not call defense counsel’s character or truthfulness into question.

Nor did the prosecutor make the comments in an effort to persuade the jury to

render a conviction on grounds beyond the evidence, which we have implied is

improper, see Devine v. United States, 403 F.2d 93, 96 (10th Cir. 1968). Rather,

these comments were isolated and made in an apparent effort to focus the jury on

the admissible evidence and explain why the evidentiary gaps that defense

counsel tried to open were not an impediment to a guilty verdict. Accordingly,

they were a permissible response to defense counsel’s use of similar imagery to

show weakness in the evidence and do not warrant reversal under the plain error

standard of review.




                                        -6-
      B. Testimony bolstering an informant’s credibility

      Mr. Graham next argues that the prosecutor improperly elicited testimony

that bolstered the credibility of one of the informants by asking Leavenworth

police officer Neil Vogel whether information the informant had supplied in prior

investigations had proved reliable. The government contends that this testimony

was properly used to counter defense efforts to call the informant’s credibility

into question. Because there was no objection at trial, our review is for plain

error. See Fed. R. Crim. P. 52(b).

      In support of his argument, Mr. Graham relies on the tenet that a prosecutor

may not “indicate a personal belief in the witness’ credibility, either through

explicit personal assurances of the witness’ veracity or by implicitly indicating

that information not presented to the jury supports the witness’ testimony.”

United States v. Jones, 468 F.3d 704, 707 (10th Cir. 2006) (quotation omitted).

But here, it was Officer Vogel, not the prosecutor, who vouched for the

informant’s past reliability. Jones therefore is inapposite. Mr. Graham has not

identified, nor have we found, any relevant authority to support his argument.

Thus, we see no plain error in the prosecutor’s line of questioning.

      C. Failure to advise jury to overlook informant’s hearsay testimony

      The third argument Mr. Graham raises concerns the testimony of one of the

confidential informants that Mr. Graham’s sister drove by and yelled out the car

window, “I know you snitched out my brother, bitch.” R., Vol. III, at 114:15.

                                         -7-
The district court sustained a hearsay objection but did not advise the jury to

overlook the comment. This comment, Mr. Graham contends, was used to

establish his conviction on count six, witness tampering. The government says

the statement was not relevant to count six, and that in any event, other evidence

was sufficient to support that charge, rendering any error harmless.

      Because Mr. Graham did not ask the court for a curative instruction, we

review for plain error. See Fed. R. Crim. P. 52(b). To begin, we question

whether the statement was hearsay because it was not offered to prove that the

informant had in fact “snitched out” Mr. Graham, the truth of which was not at

issue. Instead, it appears the statement was offered to show simply that it was

made. “It is well settled that testimony is not hearsay when it is offered to

prove only that a statement was made and not the truth of the statement.”

M.F. Patterson Dental Supply Co. v. Wadley, 401 F.2d 167, 172 (10th Cir. 1968).

As further explained in the Advisory Committee’s notes to Rule 801 of the

Federal Rules of Evidence:

      If the significance of an offered statement lies solely in the fact that
      it was made, no issue is raised as to the truth of anything asserted,
      and the statement is not hearsay. . . . The effect is to exclude from
      hearsay the entire category of “verbal acts” and “verbal parts of an
      act,” in which the statement itself affects the legal rights of the
      parties or is a circumstance bearing on conduct affecting their rights.

Fed. R. Evid. 801 advisory committee’s note to subdivision (c); see also United

States v. Faulkner, 439 F.3d 1221, 1226 (10th Cir. 2006) (quoting and relying on


                                         -8-
the advisory committee’s note). Thus, it appears to us that the statement was not

hearsay.

      Even if the statement was hearsay, we see no clear error in the district

court’s failure to tell the jury to disregard it. At the outset of trial, the court gave

the jury a preliminary verbal instruction regarding objections: “You should not

be influenced by the objection or by the court’s ruling on it. If the objection is

sustained, ignore the question. If it is overruled, treat the answer like any other.”

R., Vol. III, at 11:23 to 12:1. In a written instruction given to the jury at the

close of trial, the court again addressed the matter:

      During the trial, I did not let you hear the answers to some of the
      questions the lawyers asked. And sometimes I ordered you to
      disregard things that you saw or heard, or I struck things from the
      record. You must completely ignore all of these things. Do not even
      think about them.

Id., Vol. I, doc. 63, Instruction No. 4. Although the instructions could have stated

more specifically that, when the court sustained an objection to a question, the

jury was to ignore the answer as well as the question, we conclude that the

instructions, as given, adequately conveyed this notion to the jury. And because

“[a] jury is presumed to follow its instructions,” Weeks v. Angelone, 528 U.S.

225, 234 (2000), we see no plain error in the court’s failure to also provide a

contemporaneous, sua sponte admonition to the jury to disregard the informant’s

testimony regarding the statement of Mr. Graham’s sister.




                                           -9-
      D. Police officer’s testimony about commencement of investigation

      Mr. Graham raised a hearsay objection to a line of questioning to Officer

Vogel concerning the commencement of the investigation leading to

Mr. Graham’s arrest. The district court overruled the objection and permitted

Officer Vogel to testify that prior to becoming acquainted with one of the

confidential informants, he had heard from several other people that someone

named “Brocke” was selling crack in a certain neighborhood. When the

informant later indicated that he, too, knew of a “Brocke” that was selling crack,

and provided more details, including an address that correlated with the

previously identified neighborhood and a telephone number, Officer Vogel

decided to set up a controlled buy. The district court ruled that the testimony was

not hearsay because it was not offered for the truth of the matter asserted, but for

the limited purpose of explaining why Officer Vogel began his investigation.

      Our review of the district court’s evidentiary ruling is for an abuse of

discretion. United States v. Norman T., 129 F.3d 1099, 1105 (10th Cir. 1997).

We have held that out-of-court statements by informants are not hearsay when

offered for the limited purpose of explaining why an investigation was started.

United States v. Freeman, 816 F.2d 558, 563 (10th Cir. 1987). Officer Vogel’s

testimony was offered for that purpose, and the evidence was relevant to counter

statements defense counsel made during opening argument that there was no

evidence regarding the commencement of the investigation of Mr. Graham. Such

                                        -10-
evidence also must be evaluated under Rule 403 of the Federal Rules of Evidence.

See Freeman, 816 F.2d at 563. In pertinent part, Rule 403 requires a court to

evaluate whether the “probative value [of relevant evidence] is substantially

outweighed by the danger of unfair prejudice.” Fed. R. Evid. 403. The district

court did not explicitly perform this task, but we have little problem concluding

that Officer Vogel’s testimony regarding the general statements of third parties

that “Brocke” had sold them crack cocaine did not unfairly prejudice Mr. Graham

because it was overshadowed by the much more specific testimony of three other

witnesses (including one of the informants) that they previously had purchased

crack cocaine from Mr. Graham. Also, Officer Vogel and Officer Ryan Park both

testified that during the raid, Mr. Graham admitted to them he had been selling

crack cocaine for five years, which further reduces any concern about unfair

prejudice. We therefore see no abuse of the district court’s discretion in

overruling the hearsay objection.

      E. Sentencing error: Total offense level

      Turning to his sentence, Mr. Graham argues that the district court erred in

calculating his total offense level under the Guidelines when it (i) applied a

two-level enhancement for possession of a dangerous weapon and (ii) calculated

drug quantity. Because Mr. Graham lodged timely objections to these aspects of

his sentencing, we review the district court’s factual findings for clear error and

its legal interpretation of the guidelines de novo. United States v. Norman,

                                        -11-
129 F.3d 1393, 1398 (10th Cir. 1997). We will not disturb findings unless they

are “without factual support in the record, or if after reviewing all the evidence

we are left with the definite and firm conviction that a mistake has been made.”

United States v. Garcia, 78 F.3d 1457, 1462 (10th Cir. 1996) (quotation omitted).

      Dangerous weapon enhancement. Mr. Graham argues that the two-level

enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon

was improper because there was no direct nexus between the drug sale and the

gun that was found during the raid. Mr. Graham claims that he bought the gun for

personal protection, not to facilitate drug transactions. Also, he points out that

the gun was found in his roommate’s room, and that the jury acquitted him of the

charge of using a gun in furtherance of drug trafficking.

      We are not persuaded by these arguments. The dangerous-weapon

enhancement “should be applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the [drug] offense.” U.S.S.G.

§ 2D1.1, cmt. n. 3. “The government bears the initial burden of proving

possession of the weapon by a preponderance of the evidence.” United States v.

Williams, 431 F.3d 1234, 1237 (10th Cir. 2005). “This burden is satisfied when

the government demonstrates that a temporal and spatial relation existed between

the weapon, the drug trafficking activity, and the defendant.” Id. (quotation

omitted). Moreover, “the government need only show that the weapon was found

in the same location where drugs or drug paraphernalia [were] stored.” Id.

                                         -12-
(quotation omitted). If the government meets its burden, then the defendant must

“show that it is clearly improbable the weapon was connected with the offense.”

Id. at 1238. “For example, the enhancement would not be applied if the

defendant, arrested at his residence, had an unloaded hunting rifle in the closet.”

U.S.S.G. § 2D1.1 cmt. n. 3.

      As the government points out, one informant testified that the gun was

lying on the floor of the living room during the first controlled buy. Officer

Vogel testified that during the raid, Mr. Graham admitted that he bought the gun

for protection after the theft of $12,000 in drug money a couple of weeks earlier.

That testimony was consistent with the testimony of Mr. Graham’s roommate.

Another witness testified that he had purchased the gun at Mr. Graham’s request

and with money Mr. Graham gave to him. And Officer Parker testified that

Mr. Graham admitted he gave the gun to his roommate just prior to the raid

because he was leaving town and his roommate was going to use the gun for

protection. Moreover, the gun box and ammunition were found in Mr. Graham’s

room. Thus, the government produced sufficient evidence of the nexus between

the crack cocaine sales and the gun, and Mr. Graham has failed to show that it

was clearly improbable the weapon was connected with the offense. The fact that

he was not convicted on the gun-in-furtherance charge does not preclude

application of the enhancement. See United States v. Magallanez, 408 F.3d 672,

684 (10th Cir. 2005) (holding that “[a] jury verdict of acquittal on related

                                         -13-
conduct . . . ‘does not prevent the sentencing court from considering conduct

underlying the acquitted charge, so long as that conduct has been proved by a

preponderance of the evidence’”) (quoting United States v. Watts, 519 U.S. 148,

157 (1997) (per curiam)).

      Drug quantity. The only issue with regard to the drug-quantity calculation

that Mr. Graham has raised on appeal concerns the conversion of the stolen

$12,000 to 126.01 grams of crack cocaine. The district court overruled

Mr. Graham’s objection that there was insufficient evidence linking the $12,000

exclusively to crack cocaine sales. In so doing, the court stated that it relied on

the trial testimony and the summation of the testimony relevant to drug quantity

set out in paragraph fifteen of the PSR, and specifically noted Mr. Graham’s

admission “that there was in fact $12,000 stolen from his residence, and that this

$12,000 was the result of drug proceeds,” R., Vol. VII, at 40:13-15. On appeal,

Mr. Graham repeats his contention that there was insufficient proof that all of the

$12,000 came from crack cocaine sales. We disagree.

      “In calculating the quantity of drugs which may be attributed to a

defendant, the sentencing court may consider a wide range of information so long

as it bears the minimum indicia of reliability to support its probable accuracy.

Estimates of drug quantities for which a defendant will be held accountable are

acceptable so long as supported by the facts.” United States v. Portillo-Quezada,

469 F.3d 1345, 1356 n.6 (10th Cir. 2006) (per curiam) (quotation and citation

                                         -14-
omitted), cert. denied, 127 S. Ct. 3066 (2007). And sums of cash can be

converted to drug quantities and attributed to the defendant if “the court finds by

a preponderance that the cash is attributable to drug sales which were part of the

same course of conduct . . . as the conviction count.” United States v. Rios,

22 F.3d 1024, 1027 (10th Cir. 1994).

      In view of the evidence as a whole, we cannot say that we are left with a

definite and firm conviction that the district court made a mistake in converting

the $12,000 to crack-cocaine quantity. Officer Parker testified that during the

raid, Mr. Graham admitted he purchased the gun because of the theft of $12,000

he made selling crack cocaine, not the broader “drug proceeds” referenced at

sentencing. Also, there is no suggestion in the evidence, nor did Mr. Graham

advance any evidence, that he had ever dealt any drugs other than crack cocaine.

See United States v. Todd, 515 F.3d 1128, 1137 (10th Cir. 2008) (considering it

significant that defendant had offered no evidence demonstrating that confiscated

drugs were the product of a course of conduct other than that of the count of

conviction). Indeed, Mr. Graham’s roommate testified that in two months of

living with Mr. Graham, he had never seen Mr. Graham sell anything other than

crack cocaine, and again, both Officer Parker and Officer Vogel testified that

Mr. Graham admitted to selling crack cocaine for the previous five years. Thus,

the facts supporting the district court’s attribution of 126.01 grams of crack

cocaine to Mr. Graham by virtue of the stolen $12,000 bear the “minimum indicia

                                         -15-
of reliability to support its probable accuracy.” Portillo-Quezada, 469 F.3d

at 1356 (quotation omitted).

      F. Sentencing Error: Application of Amendment 706

      Mr. Graham’s final argument concerns Amendment 706 to the Guidelines,

which “took effect Nov. 1, 2007 and was made retroactive as of March 3, 2008.”

United States v. Sharkey, 543 F.3d 1236, 1237 (10th Cir. 2008); see also U.S.S.G.

Supp. to App’x C, Amend. 706 (Nov. 1, 2007); U.S.S.G. Supp. to the 2007 Supp.

to App’x C (March 3, 2008). In pertinent part, Amendment 706 lowered the base

offense level from 34 to 32 for crack cocaine offenses involving 150-500 grams

of cocaine base. Compare U.S.S.G. § 2D1.1(c)(4) (2007) with id. § 2D1.1(c)(4)

(2006). Mr. Graham contends that by virtue of Amendment 706, he is entitled to

a two-level reduction in his base offense level under U.S.S.G. § 1B1.10, which

permits a court to reduce a defendant’s term of imprisonment if a sentencing

range has subsequently been lowered by an amendment enumerated in that

section, including Amendment 706. But contrary to Mr. Graham’s belief, the

district court used the reduced base-level calculation of 32 effected by

Amendment 706. Indeed, sentencing occurred on January 4, 2008, after the

effective date of Amendment 706, and the district court relied on the PSR, which




                                        -16-
used the amended version of the Guidelines effective November 1, 2007.

Therefore, he is not eligible for a reduction in sentence under § 1B1.10.

                                 III. Conclusion

      We AFFIRM Mr. Graham’s conviction and sentence.


                                                    Entered for the Court



                                                    Robert H. Henry
                                                    Chief Judge




                                        -17-
