                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 16-4295


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

          v.

JORGE ESPINOSA,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Fox, Senior
District Judge. (4:15-cr-00068-F-5)


Submitted:   January 31, 2017               Decided:   February 10, 2017


Before WILKINSON, AGEE, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North
Carolina, for Appellant. John Stuart Bruce, United States
Attorney, Jennifer P. May-Parker, First Assistant United States
Attorney, Barbara D. Kocher, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Jorge Espinosa appeals from his conviction after a jury

trial for conspiracy to possess with the intent to distribute 5

kilograms or more of cocaine, in violation of 21 U.S.C. § 846

(2012), and his resulting 188-month sentence.                                              Espinosa argues

that       the    district          court            erred    in    denying          his    motion    for   a

mistrial          and      imposing              a     sentence       that           was    greater      than

necessary.            Finding no error, we affirm.

       First,          Espinosa          assigns         error        to       the     district      court’s

denial of his motion for a mistrial, which was predicated on the

prosecutor’s questioning of a law enforcement witness regarding

Espinosa’s post-arrest, post-Miranda * silence.                                             We review the

denial of a motion for a mistrial for an abuse of discretion.

See United States v. Johnson, 587 F.3d 625, 631 (4th Cir. 2009);

United States v. Wallace, 515 F.3d 327, 330 (4th Cir. 2008) (“We

review      .     .    .   a       district           court’s       denial       of    a    motion    for    a

mistrial . . . for an abuse of discretion.”).                                          A district court

abuses       its        discretion               when    “it        has        acted       arbitrarily      or

irrationally[,]                .    .        .    has        failed       to     consider       judicially

recognized factors constraining its exercise of discretion, or

when   it        has    relied          on       erroneous         factual       or    legal    premises.”




       *   Miranda v. Arizona, 384 U.S. 436 (1966).



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L.J. v. Wilbon, 633 F.3d 297, 304 (4th Cir. 2011) (alterations

in original) (internal quotation marks omitted).

     Prosecutorial comment on a defendant’s invocation of rights

pursuant to Miranda is forbidden.              See Doyle v. Ohio, 426 U.S.

610, 618 (1976) (opining that “it would be fundamentally unfair

and a deprivation of due process to allow the arrested person’s

silence   to    be    used   to   impeach     an   explanation   subsequently

offered   at    trial”).      Miranda       assures   a   defendant   that   his

silence or invocation of the right to counsel will not be used

against him at trial; thus, the Supreme Court has explained, to

allow the prosecution to comment at trial on the defendant’s

decision to exercise that right violates the “implicit assurance

[afforded by Miranda] ‘that silence will carry no penalty.’”

Greer v. Miller, 483 U.S. 756, 762 (1987) (quoting Doyle, 426

U.S. at 618).        In Greer, the Supreme Court articulated that the

holding of Doyle, rather than prohibiting all reference to or

mention of the defendant’s silence, was “that the Due Process

Clause bars the use for impeachment purposes of a defendant’s

postarrest silence.”         Greer, 483 U.S. at 763 (internal citation

omitted).      Thus, “[w]hile a single comment alone may sometimes

constitute a Doyle violation, the Supreme Court’s opinion in

Greer makes clear that a single mention does not automatically

suffice to violate a defendant’s rights when the government does

not specifically and expressly attempt to use—as was attempted

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in   Doyle    and     in    Greer—the      improper     comment    to    impeach   the

defendant.”         United States v. Stubbs, 944 F.2d 828, 835 (11th

Cir. 1991).

       Such comments violate due process only if they “so infected

the trial with unfairness as to make the resulting conviction a

denial of due process.”               Donnelly v. DeChristoforo, 416 U.S.

637, 643 (1974).           To obtain a new trial on this basis, Espinosa

must show both “(1) that the government’s remarks were in fact

improper and (2) that the remarks prejudicially affected the

defendant’s substantial rights so as to deprive the defendant of

a fair trial.”           United States v. Higgs, 353 F.3d 281, 330 (4th

Cir. 2003) (citation and internal quotation marks omitted).                         In

determining whether Espinosa has made the requisite showing of

prejudice with respect to any particular comment, we must look

to a number of factors, including: (1) the degree to which the

prosecutor’s remarks have a tendency to mislead the jury and to

prejudice the accused; (2) whether the remarks were isolated or

extensive; (3) absent the remarks, the strength of competent

proof   introduced         to   establish    the   guilt   of     the   accused;   and

(4) whether        the   comments    were    deliberately       placed    before    the

jury    to   divert      attention    to    extraneous     matters.          Id.   Also

relevant      to     this       inquiry     is   “the    issuance       of     curative

instructions from the court,” Humphries v. Ozmint, 397 F.3d 206,



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218 (4th Cir. 2005) (en banc), which the jury is presumed to

follow, Richardson v. Marsh, 481 U.S. 200, 206 (1987).

      An    attempted           Doyle       violation       amounts      to      a     claim     of

prosecutorial misconduct, which violates due process if it so

egregious that it effectively denies the defendant a fair trial.

Greer,     483    U.S.     at    765.        When    reviewing        such      a    claim,     the

reviewing        court     must       evaluate       the       challenged            remark     “in

context.”        Id. at 766 (internal quotation marks omitted).

      Here,       the    testifying          officer       was    asked       what      response

Espinosa made after he was read his Miranda rights.                                  The officer

testified that Espinosa responded that he did not wish to speak

with him.         However, as the officer left the room he made a

comment regarding Espinosa’s father.                       To this comment, which was

not presented as a question, the defendant made an incriminating

statement, which was properly admitted: “if you let me speak to

my   dad,   I’ll        tell    you     where      the    other    kilos        are.”         While

Sergeant     Weeks’       testimony         made    reference       to    the        Defendant’s

post-arrest silence, the Government was not using or attempting

to   use    the     fact        of    the    Defendant’s          silence       against        him.

Instead, the comment was “in the context of the officer[]’[s]

narrative[]            regarding         [the        defendant’s]             . . . arrest.”

Noland v.        French,       134    F.3d    208,       216   (4th      Cir.       1998).       In

addition, defense counsel recognized that there was no Doyle

violation,       and     raised      Espinosa’s          invocation      of     his    right     to

                                                5
silence when cross-examining Weeks.                              We conclude that the court

did not abuse its considerable discretion in denying the motion

for    a    mistrial.               See       Noland,       134        F.3d    at   216     (holding

prosecutor’s argument that related to voluntary statement after

Miranda,        rather        than       to    silence       itself,          was   not     a     Doyle

violation).

       Next,      Espinosa           contends             that     a     sentence         below     the

Sentencing        Guidelines             range    would      have       been    appropriate         and

afforded        adequate       deterrence            to    Espinosa’s         criminal      conduct,

particularly        in    light          of    his     limited         criminal     history.         We

review      a    sentence          for    reasonableness,              applying      an    abuse    of

discretion standard.                     Gall v. United States, 552 U.S. 38, 46

(2007).         We first review for significant procedural error, and

if    the   sentence          is    free      from        such    error,       we   then    consider

substantive reasonableness.                      Id. at 51.             Espinosa contends that

his    sentence          is        substantively            unreasonable.              Substantive

reasonableness is determined by considering the totality of the

circumstances,            and            if      the        sentence          is     within         the

properly-calculated                Guidelines            range,        this    court      applies     a

presumption of reasonableness.                            United States v. Strieper, 666

F.3d 288, 295 (4th Cir. 2012).

       “Any sentence that is within or below a properly calculated

Guidelines        range       is     presumptively           [substantively]           reasonable.

Such a presumption can only be rebutted by showing that the

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sentence is unreasonable when measured against the 18 U.S.C.

§ 3553(a) [(2012)] factors.”                 United States v. Louthian, 756

F.3d 295, 306 (4th Cir. 2014) (internal citation omitted).                              The

district court considered that the offense involved Espinosa’s

participation in a conspiracy to distribute a large amount of

cocaine.       Espinosa delivered a kilogram of cocaine to a deal

involving a confidential informant, possessed a firearm, and hid

16    kilograms      of    cocaine,     worth      approximately        $400,000,       the

location of which he did not disclose.                         The court noted the

defendant’s age, his lack of prior criminal history, and the

possibility        Espinosa     was   motivated      to   protect   his        father,    a

coconspirator.            The court determined that these circumstances

were insufficient to mitigate the totality of the circumstances.

The    court      recognized     its      obligation      to    impose     a    sentence

sufficient        but     not   greater     than    necessary      to    comply       with

sentencing        purposes,     and    compared     the   sentencing       ranges       and

factors      of    Espinosa’s     coconspirators,         but    given     the       highly

addictive nature of cocaine and the violence associated with it,

and   that     the      court   was    troubled      by   Espinosa’s       failure       to

disclose     the     location    of    16   kilograms     of    cocaine,       the    court

concluded that a sentence of 188 months was necessary.                           Espinosa

has not rebutted the presumption of reasonableness.                            Thus, the

sentence was not an abuse of discretion.



                                            7
       Accordingly, we affirm the judgment.            We deny Espinosa’s

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    this   court   and

argument would not aid the decisional process.

                                                                     AFFIRMED




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