                                                                     [DO NOT PUBLISH]

                       IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________                FILED
                                                                   U.S. COURT OF APPEALS
                                            No. 10-15634             ELEVENTH CIRCUIT
                                        Non-Argument Calendar        SEPTEMBER 22, 2011
                                      ________________________            JOHN LEY
                                                                           CLERK
                           D.C. Docket No. 7:09-cr-00006-WLS-TQL-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellee,

                                                  versus

ALBERT EUGENE DUNN,

llllllllllllllllllllllllllllllllllllllll                             Defendant-Appellant.

                                      ________________________

                            Appeal from the United States District Court
                                for the Middle District of Georgia
                                  ________________________

                                           (September 22, 2011)



Before HULL, PRYOR and BLACK, Circuit Judges.

PER CURIAM:
       Albert Eugene Dunn appeals his convictions and sentences totaling 924

months’ incarceration, a variance upward from his advisory guideline range, after

being convicted by a jury of two counts of carjacking, in violation of 18 U.S.C.

§ 2119(1); knowing receipt and possession of ammunition by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1); carjacking, in violation of 18 U.S.C. § 2119(2);

brandishing, using and carrying a firearm during and in relation to, and possession

of a firearm in furtherance of, a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(A)(i), (ii); knowing receipt and possession of a firearm, having been

convicted of a felony, in violation of 18 U.S.C. § 922(g)(1); and knowing receipt

and possession of a firearm, having been convicted of a felony, in violation of 18

U.S.C. §§ 922(g)(1) and 924(a)(2). Dunn raises several issues on appeal, which we

address in turn. After review, we affirm Dunn’s convictions and sentences.

                                                  I.

       First, Dunn argues the Government committed prosecutorial misconduct

during its closing argument by repeatedly stating Dunn could have exercised his

subpoena power to present any evidence that would have exonerated him.1 In

order to establish prosecutorial misconduct, (1) the challenged statements must be

       1
        Where, as here, a defendant fails to object to alleged prosecutorial misconduct in the district
court, we review the challenged conduct for plain error “that is so obvious that failure to correct it
would jeopardize the fairness and integrity of the trial.” United States v. Merrill, 513 F.3d 1293,
1306-07 (11th Cir. 2008) (citation omitted).

                                                  2
improper, and (2) the statements must prejudicially affect the substantial rights of

the defendant. United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006). “A

defendant’s substantial rights are prejudicially affected when a reasonable

probability arises that, but for the remarks, the outcome of the trial would have

been different.” Id. Thus, where sufficient independent evidence of guilt has been

presented at trial, any error is harmless. Id.

      Dunn has failed to show that the Government’s statements were plain error.

The Government specifically noted during its closing argument that it, not Dunn,

had the burden of proof. The Government’s statements regarding Dunn having the

same subpoena power as the Government were not prosecutorial misconduct. See

United States v. Schmitz, 634 F.3d 1247, 1267 (11th Cir. 2011) (holding the

prosecution is permitted to state, during closing argument, that the defendant has

the same subpoena power as the government).

      While Dunn further questions the propriety of the Government’s statements

that if evidence contradicting the Government’s evidence had existed, Dunn would

have presented it, Dunn has failed to show a reasonable probability that the

outcome of the trial would have been different if those statements had not been

made. See Eckhardt, 466 F.3d at 947. Throughout the trial, the Government put

forth a significant amount of evidence of Dunn’s guilt regarding all seven counts.


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       Because the Government presented more than sufficient independent

evidence of Dunn’s guilt regarding all seven counts at trial, any error on the part of

the district court in allowing the challenged statements is harmless.

                                                 II.

       Next, Dunn asserts the district court relied on facts not properly charged and

submitted to the jury for a definitive ruling beyond a reasonable doubt, in violation

of Apprendi v. New Jersey, 530 U.S. 466 (2000), resulting in illegal sentences for

Counts One, Two, and Four.2            “Other than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi,

530 U.S. at 490.

       The federal statute which criminalizes carjacking provides:

       Whoever, with the intent to cause death or serious bodily harm takes a
       motor vehicle that has been transported, shipped, or received in
       interstate or foreign commerce from the person or presence of another
       by force and violence or by intimidation, or attempts to do so, shall–


       2
         When the claim is preserved, we review jury instructions de novo to determine whether they
misstate the law or mislead the jury to the prejudice of the objecting party. United States v. Hansen,
262 F.3d 1217, 1248 (11th Cir. 2001). The omission of an element of an offense from jury
instructions is subject to harmless error review. See Neder v. United States, 527 U.S. 1, 10 (1999);
see also United States v. Drury, 396 F.3d 1303, 1314 (11th Cir. 2005). Thus, “where a reviewing
court concludes beyond a reasonable doubt that the omitted element was uncontested and supported
by overwhelming evidence, such that the jury verdict would have been the same absent the error,
the erroneous instruction is properly found to be harmless.” Neder, 527 U.S. at 17.


                                                  4
             (1) be fined under this title or imprisoned not more than
             15 years, or both,

             (2) if serious bodily injury (as defined in section 1365 of
             this title, including any conduct that, if the conduct
             occurred in the special maritime and territorial
             jurisdiction of the United States, would violate section
             2241 or 2242 of this title) results, be fined under this title
             or imprisoned not more than 25 years, or both, and

             (3) if death results, be fined under this title or imprisoned
             for any number of years up to life, or both, or sentenced
             to death.

18 U.S.C. § 2119. Pursuant to 18 U.S.C. §§ 2119(2) and 2241(a)(1), (2), “serious

bodily injury” includes “knowingly caus[ing] another person to engage in a sexual

act–(1) by using force against that other person; or (2) by threatening or placing

that other person in fear that any person will be subjected to death, serious bodily

injury, or kidnaping.”

      With regard to Dunn’s sentences for Counts One and Two, the Government

concedes the district court plainly erred in sentencing Dunn to 25 years for each

Count, as, pursuant to 18 U.S.C. § 2119(1), the statutory maximum for each of

these counts is only 15 years. We agree.

      In the superseding indictment, Dunn was charged under Count Four with

violating § 2119(2), putting him on notice that he faced a statutory maximum term

of imprisonment of 25 years. However, the district court’s instructions to the jury


                                           5
regarding Count Four and the actual language of the jury verdict form were

confusing and misleading because they did not clearly inform the jury that it was

required to find whether serious bodily injury resulted from the January 2009

carjacking incident. Thus, because the jury never found that serious bodily injury

resulted from the carjacking as required by § 2119(2), the district court committed

an instructional error in sentencing Dunn to 25 years’ imprisonment for Count

Four. See Jones v. United States, 526 U.S. 227, 252 (1999) (holding the

subsections of § 2119 establish “three separate offenses by the specification of

distinct elements, each of which must be charged by indictment, proven beyond a

reasonable doubt, and submitted to a jury for its verdict”).

      Although the district court’s failure to properly charge the jury regarding the

serious bodily injury element was error, that error was harmless and does not

warrant plain error relief. It is clear the improper jury instructions did not

contribute to the jury’s guilty verdict for Count Four. Proof as to whether serious

bodily injury resulted from the carjacking was overwhelming, as the Government

presented strong and uncontroverted evidence of the sexual assaults. Dunn argued

that he was not a participant in the incidents of January 15, 2009, but he never

challenged whether someone committed the sexual assaults that the witnesses

described. Having found that Dunn was guilty of the carjacking, there is no


                                           6
reasonable doubt the jury would also have reached the conclusion that serious

bodily injury resulted from that offense. See United States v. Drury, 396 F.3d

1303, 1314 (11th Cir. 2005) (holding the omission of an element in the jury

instructions harmless where the element was uncontested and it was clear beyond a

reasonable doubt that the verdict would have been the same).

                                                 III.

       Finally, Dunn argues his sentences totaling 924 months’ imprisonment are

both procedurally and substantively unreasonable, as the district court failed to

adequately explain its reasons for imposing his sentences and ignored mitigating

evidence that warranted less severe sentences.3

       Procedural reasonableness includes whether the district court properly

calculated the Guidelines range, treated the Guidelines as advisory, considered the

§ 3553(a) factors, did not select a sentence based upon clearly erroneous facts, and

adequately explained the chosen sentence. Gall v. United States, 552 U.S. 38, 51

(2007). Once we determine that a sentence is procedurally sound, we examine

whether the sentence was substantively reasonable in light of the totality of the

circumstances and the § 3553(a) factors. Id.


       3
          We review the reasonableness of a sentence, “[r]egardless of whether the sentence imposed
is inside or outside the Guidelines range,” under a deferential abuse of discretion standard of review.
Gall v. United States, 552 U.S. 38, 51 (2007).

                                                  7
      When a district court determines that a variance is appropriate, it should

explain why the variance is appropriate in the particular case with sufficient

justifications. See United States v. Irey, 612 F.3d 1160, 1186-87 (11th Cir. 2010)

(en banc). Moreover, a court at the time of sentencing must “state in open court

the reasons for its imposition of the particular sentence, and, if the sentence [is

outside the Guidelines range, explain] the specific reason for the imposition of a

sentence different from [the Guidelines range].” 18 U.S.C. § 3553(c)(2).

However, the court is not required to “state on the record that it has explicitly

considered each of the § 3553(a) factors or to discuss each of the § 3553(a)

factors.” United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (quotations

omitted). A sentence may be substantively unreasonable where a district court

“unjustifiably relied on any one § 3553(a) factor, failed to consider pertinent

§ 3553(a) factors, selected the sentence arbitrarily, or based the sentence on

impermissible factors.” United States v. Sarras, 575 F.3d 1191, 1219 (11th Cir.

2009).

      In this case, aside from his sentences for Counts One, Two, and Four,

discussed supra, Dunn’s sentences were procedurally and substantively reasonable.

The district court properly calculated his Guideline’s range, treated the Guidelines

as advisory, did not base Dunn’s sentences on clearly erroneous facts, and


                                           8
adequately explained the chosen sentences. The court also considered the

§ 3553(a) factors and took into account Dunn’s argument about potential

mitigating factors in arriving at Dunn’s sentences. Furthermore, the district court’s

explanation of its reasons for varying upward was sufficiently justified to support

the degree of the variance. See Irey, 612 F.3d at 1187.

      Dunn’s sentences were also substantively reasonable. His sentences were

appropriate to promote respect for the law, provide just punishment, provide

adequate deterrence, and protect the public from further crimes. See 18 U.S.C.

§ 3553(a)(2)(A)-(C). His sentences also reflected the nature and circumstances of

the offenses and his criminal history and background. See 18 U.S.C. § 3553(a)(1).

Although Dunn argues that mitigating factors, including his family circumstances

and mental health history, were present, the district court did not abuse its

discretion in giving other factors more weight.

   AFFIRMED AS TO ALL CONVICTIONS AND SENTENCES FOR
COUNTS THREE THROUGH SEVEN; VACATED AND REMANDED TO
CORRECT SENTENCES FOR COUNTS ONE AND TWO.




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