                                                                            [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                            ELEVENTH CIRCUIT
                                            No. 10-15566                     OCTOBER 26, 2011
                                        Non-Argument Calendar                   JOHN LEY
                                      ________________________                   CLERK


                           D.C. Docket No. 8:10-cr-00102-JSM-TBM-1

UNITED STATES OF AMERICA,

                                             llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,

                                                versus

NURULLAH YILDIRIM,

llllllllllllllllllllllllllllllllllllllll                                  Defendant-Appellant.

                                    _________________________

                                            No. 10-15569
                                        Non-Argument Calendar
                                      ________________________

                           D.C. Docket No. 8:10-cr-00102-JSM-TBM-3



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                               Plaintiff - Appellee,

                                               versus
BENLI HAKAN HUSEYIN UMMAHANI,

llllllllllllllllllllllllllllllllllllllll                        Defendant - Appellant.

                                     ________________________

                          Appeals from the United States District Court
                               for the Middle District of Florida
                                 ________________________

                                           (October 26, 2011)

Before EDMONDSON, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:

         Benli Hakan Huseyin Ummahani (“Ummahani”) and Nurullah Yildirim

(“Yildirim”) appeal their convictions and sentences for conspiring to possess five

kilograms or more of cocaine with the intent to distribute, while on board a vessel

subject to the jurisdiction of the United States, in violation of 46 U.S.C. §§

70503(a)(1) and 70506(a) and (b) and 21 U.S.C. § 960(b)(1)((B)(ii), and aiding

and abetting possessing five kilograms or more of cocaine with the intent to

distribute, while on board a vessel subject to the jurisdiction of the United States,

in violation of 46 U.S.C. §§ 70503(a) and 70506(a), 18 U.S.C. § 2, and 21 U.S.C.

§ 960(b)(1)(B)(ii). Ummahani and Yildirim argue that the government committed

prosecutorial misconduct, that the district court erred in applying an obstruction of



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justice enhancement to their sentences based on perjury, and that their sentences

were unreasonable. We address each of their arguments in turn.

                                          I.

      “The Court reviews a prosecutorial misconduct claim de novo because it is a

mixed question of law and fact.” United States v. Eckhardt, 466 F.3d 938, 947

(11th Cir. 2006). Where the defendant fails to object to the statements at trial,

however, we review for plain error. United States v. Newton, 44 F.3d 913, 920

(11th Cir. 1994). Under plain error review, the appellant must show that the

prosecutor’s statements constituted error, that the error was plain, that the error

affected the appellant’s substantial rights, and the error seriously affected the

fairness of the judicial proceedings. United States v. Schmitz, 634 F.3d 1247,

1268 (11th Cir. 2011).

      Ummahani and Yildirim first claim that the government engaged in

prosecutorial misconduct during its closing argument when the prosecutor stated,

without objection: “I’m not asking you [the jury] to [rush to judgment], because

my burden is pretty high. My burden is beyond a reasonable doubt, and I know

that I have established that.” Ummahani and Yildirim now argue that, in making

this statement, the prosecutor improperly offered her personal impression of the

evidence. However, in United States v. Tisdale, 817 F.2d 1552, 1556 (11th Cir.

                                           3
1987), we held that an almost identical statement—“I believe the government has

proven its case beyond a reasonable doubt”—did not constitute prosecutorial

misconduct, as the prosecutor “was merely attempting to argue the weight of the

evidence.” Based on this precedent, we conclude that the prosecutor’s comment in

this case regarding reasonable doubt did not constitute plain error.

      Ummahani and Yildirim next argue that the prosecutor mischaracterized

evidence and argued facts not in evidence during her closing argument. To

analyze this claim, we must briefly describe the relevant evidence and their theory

of defense. The evidence showed that the Coast Guard boarded the Carribean

Dream off the coast of San Andreas Island, and discovered almost a ton of

Cocaine, several drums of fuel and water, and three people—Ummahani, Yildirim,

and Leonel Lamadrid Ledesma—on board. Ummahani and Yildirim testified that

they were on vacation, traveling between Panama and Colombia, when their boat

was overtaken by Colombian pirates, who forced them to take on the cocaine and

Ledesma (as a load guard), and to alter their course from Panama to San Andreas

Island. In contrast, Ledesma, who plead guilty, testified that all three of them

were willingly tasked with transporting the cocaine safely from one destination to

another. During her closing argument, the prosecutor pointed out that the

defendants never testified that the Colombians brought the drums of fuel on the

                                          4
boat, and the fact that the defendants were carrying the drums of fuel suggested

that they were prepared and intending to travel a long distance in the middle of the

ocean, rather than along the coast from Colombia to Panama, where there would

be many places to stop for fuel. Ummahani and Yildirim objected to this argument

at trial and challenge it on appeal. We conclude that the district court did not err

in overruling their objection, as the prosecutor did not mischaracterize the

evidence or assume facts not in evidence. A prosecutor may encourage the jury to

draw conclusions from facts in evidence. United States v. Braithwaite, 709 F.2d

1450, 1456-57 (11th Cir. 1983). Here, the prosecutor was merely encouraging the

jury to draw conclusions from the evidence concerning the number of fuel drums

and the distance to be traveled.

      Lastly, Ummahani and Yildirim argue that the prosecutor improperly

vouched for the credibility of certain Coast Guard witnesses during her closing

argument when she stated, without objection: “The petty officers have no reason to

lie. They have no reason to come in here and tell you something that didn’t

happen.” However, in United States v. Bernal-Benitez, 594 F.3d 1303, 1314 (11th

Cir. 2010), we held that a similar statement—“nobody has submitted any

suggestion as to why agents would have any motivation to fabricate evidence

against [the defendants]”—did not rise to the level of improper vouching, as the

                                          5
prosecutor was merely “pointing out the lack of evidence to support defense

arguments that the [government] agents were fabricating their stories and then

drawing reasonable inferences from the evidence presented at trial as to why the

Government witnesses had no incentive to lie.” Based on this precedent, we

cannot say that the prosecutor’s comment in this case regarding the Coast Guard

officers constituted plain error.

                                         II.

      Ummahani and Yildirim also argue that the district court erred in finding

that the obstruction of justice enhancement under U.S.S.G. § 3C1.1 applied to

them. Section 3C1.1 states:

      If (A) the defendant willfully obstructed or impeded, or attempted to
      obstruct or impede, the administration of justice with respect to the
      investigation, prosecution, or sentencing of the instant offense of
      conviction, and (B) the obstructive conduct related to (i) the
      defendant's offense of conviction and any relevant conduct; or (ii) a
      closely related offense, increase the offense level by 2 levels.

U.S.S.G. § 3C1.1. One type of conduct that warrants the obstruction of justice

enhancement is “committing, suborning, or attempting to suborn perjury.”

U.S.S.G. § 3C1.1, comment. (n.4).

      We review a district court’s findings of fact related to applying an

obstruction of justice enhancement for perjury for clear error. United States v.



                                         6
Banks, 347 F.3d 1266, 1269 (11th Cir. 2003). The district court’s finding is

clearly erroneous when the appellate court’s review of the evidence leaves it “with

the definite and firm conviction that a mistake has been committed.” United

States v. Poirier, 321 F.3d 1024, 1036 (11th Cir. 2003) (internal quotation marks

omitted). Here, because Yildirim’s and Ummahani’s testimonies were

irreconcilable with the record and inconsistent with the facts credited by the jury,

the district court did not commit clear error in finding that they committed perjury

and that the obstruction of justice enhancement was applicable. See United States

v. Williams, 627 F.3d 839, 845 (11th Cir. 2010).

                                         III.

      Finally, Yildirim argues that the 186-month imprisonment sentence the

district court imposed was unreasonable, because the district court should have

considered his history, that he is not a violent nor repeat offender, and that he has

four children to support. Ummahani also makes a passing reference, in his

statement of issues on appeal, to his 120-month sentence being unreasonable, but

does not elaborate on the sentencing issue in his brief.

      Regarding Ummahani’s passing reference to his sentence, we have held

that, when an appellant includes an issue in the statement of issues but nowhere

else in the brief, the issue is abandoned. Tedder v. F.M.C. Corp., 590 F.2d 115,

                                          7
117 (5th Cir. 1979).1 Because Ummahani’s sentencing argument is only

mentioned in his statement of issues, he has abandoned this issue on appeal.

       In reviewing the reasonableness of Yildirim’s sentence, we apply an abuse

of discretion standard. Gall v. United States, 552 U.S. 38, 56 (2007). We will

only reverse and remand for resentencing “if we are left with the definite and firm

conviction that the district court committed a clear error of judgment in weighing

the [18 U.S.C.] § 3553(a) factors by arriving at a sentence that lies outside the

range of reasonable sentences dictated by the facts of the case.” United States v.

McBride, 511 F.3d 1293, 1297 -1298 (11th Cir. 2007) (internal quotation marks

omitted). Here, the district court considered the § 3553(a) factors and explicitly

stated that it “varied downward from the advisory guideline because it considers

the sentence of 186 months to be more appropriate given the factors of 18 U.S.C.,

Section 3553.” The district court determined, in Yildirim’s favor, that the

Guidelines minimum of 30 years’ imprisonment was too high and sentenced

Yildirim to 186 months (15.5 years), which was 66 months more than the

mandatory minimum sentence of 120 months, and well below the statutory

maximum of life imprisonment. On this record, we cannot say that the district


       1
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) ( en banc ), we
adopted as binding precedent all decisions of the former Fifth Circuit issued before October 1,
1981.

                                                8
court committed a clear error of judgment in imposing a below-Guidelines

sentence.

      AFFIRMED.




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