                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 10-4754


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MAURICE SPRIGGS,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:09-cr-00361-WDQ-1)


Submitted:   October 28, 2011             Decided:   November 4, 2011


Before KING, AGEE, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James Wyda, Federal Public Defender, Meghan S. Skelton, Staff
Attorney,   Greenbelt,  Maryland, for   Appellant.    Rod  J.
Rosenstein, United States Attorney, Cheryl L. Crumpton, Tonya
Kelly Kowitz, Assistant United States Attorneys, Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Following a jury trial, Maurice Spriggs was convicted

of    armed    carjacking          (Count   One),        in    violation    of    18    U.S.C.

§ 2119 (2006); brandishing a firearm during and in relation to

the    carjacking           (Count     Two),        in    violation        of     18    U.S.C.

§ 924(c)(1)(A)(ii)            (2006);       and     possessing       a     firearm       as     a

convicted          felon    (Count     Three),       in       violation    of     18    U.S.C.

§ 922(g)(1) (2006).             The district court sentenced Spriggs as a

career     offender          and     an     armed        career    criminal,           imposing

consecutive sentences of 180 months each on Counts One and Three

and 84 months on Count Two, for a total term of imprisonment of

444 months.          In this appeal, Spriggs argues that the Government

engaged       in    misconduct       during     closing        argument     and    that       his

sentence      is     procedurally         and   substantively       unreasonable.              We

affirm.

               A claim of prosecutorial misconduct “presents a mixed

question of law and fact, and we review the district court’s

factual findings for clear error and its legal determinations de

novo.”     United States v. Washington, 398 F.3d 306, 310 (4th Cir.

2005).        To succeed on a claim of prosecutorial misconduct, a

defendant must show, first, that the prosecutor’s remarks were

improper and, second, that “the improper remarks so prejudiced

the defendant’s substantial rights that the defendant was denied

a fair trial.”             United States v. Lighty, 616 F.3d 321, 359 (4th

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Cir.    2010),         cert.    denied,          __   U.S.      __,    79     U.S.L.W.       3480,    80

U.S.L.W. 3015 (U.S. Oct. 17, 2011) (No. 10-1010).

               Spriggs         contends          that        the      Government’s           statement

during     rebuttal            that        the    jury       had      heard        “zero     evidence”

supporting the defense’s theory of the case was improper and

shifted the burden of proof to the defense.                                        “In considering

whether       a    prosecutor’s             words         constitute         a     comment    on     the

defendant’s         failure           to     testify,”          we     consider          whether     the

language used either was “manifestly intended to be[] or was

. . .    of       such    character          that         the   jury      would      naturally       and

necessarily         take       it   to      be   a    comment        on   the       failure    of    the

accused to testify.”                  United States v. Jones, 471 F.3d 535, 542

(4th Cir. 2006)            (internal             quotation           marks        omitted).          The

comments      are      evaluated           “in   the       context     in        which   [they     were]

made.”    Id. (internal quotation marks omitted).

               In closing argument, the defense asserted that Spriggs

was legitimately in possession of the victim’s car, hypothesized

that the victim was dealing drugs on the night in question, and

suggested that the victim’s 911 call was motivated by something

other    than      a     carjacking.             We       conclude     that       the    Government’s

statements were not improper.                         See United States v. Loayza, 107

F.3d    257,      263     (4th Cir. 1997)              (“It     would        have    been     entirely

appropriate for the prosecutor to argue during summation that

the defense version of the events at issue ‘were not even close’

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to the evidence presented.”).                 The context in which the argument

was   made     reveals        that    the    Government’s      statements          were       not

intended       and    would    not    be     naturally      taken     as    a    comment       on

Spriggs’ failure to testify, but as a response to the defense

characterization of the victim’s testimony.

               Alternatively,         Spriggs      argues     that    the       Government’s

statements      constituted          misconduct      because    they       were    factually

inaccurate,          and    that     the     cross-examination         of        the    victim

supplied evidence supporting the defense theory of the case.

Although        the        defense      effectively         tested         the         victim’s

credibility, the Government did not misstate the facts, and, as

the   district        court    instructed,         counsel’s   questions          containing

factual    assumptions         are    not    evidence    of    those       facts.         Thus,

Spriggs’ prosecutorial misconduct claim fails.

               We now turn to our review of Spriggs’ sentence.                                We

review     sentences        for      reasonableness,        applying        an     abuse-of-

discretion standard.               Gall v. United States, 552 U.S. 38, 51

(2007);        United       States      v.     Llamas,        599     F.3d        381,        387

(4th Cir. 2010).           This review requires consideration of both the

procedural and substantive reasonableness of a sentence.                                 Gall,

552 U.S. at 51.            In determining procedural reasonableness, this

court considers whether the district court properly calculated

the   defendant’s          advisory    Guidelines       range,       considered         the    18

U.S.C.     §     3553(a)       (2006)        factors,    analyzed          any     arguments

                                               4
presented      by     the       parties,      and     sufficiently          explained          the

selected    sentence.            Gall,     552      U.S.    at    51.      A   sentence            is

reviewed     for      substantive          reasonableness           by    examining           “the

totality    of      the     circumstances,          including       the    extent        of    any

variance    from      the    Guidelines       range.”            Id.;    United     States         v.

Pauley, 511 F.3d 468, 473 (4th Cir. 2007).                          This court presumes

that a sentence within a properly determined advisory Guidelines

range is substantively reasonable.                        United States v. Allen, 491

F.3d 178, 193 (4th Cir. 2007).

            Spriggs         asserts      that       the    district       court     committed

procedural errors in sentencing him.                        First, he argues that the

district court never identified the base offense level or the

Guidelines     range.           However,      the     presentence        report     indicated

that Spriggs’ Guidelines range was a term of imprisonment from

360   months     to   life      based    on     his    classification          as    a    career

offender and an armed career criminal.                            After sustaining one

objection      but     overruling          Spriggs’         remaining      objections              to

certain predicate offenses used to enhance his sentence, the

district court determined that Spriggs had at least four felony

drug-trafficking          convictions         to    support       sentencing        him       as    a

career   offender         and    an   armed      career     criminal.          We   therefore

conclude that Spriggs was adequately apprised of the effect of

the Guidelines and the statutory enhancement on his sentence.



                                                5
             Next,    Spriggs    argues        that     the    district       court      never

explained    why     the   selected    sentence          was    sufficient          but   not

greater than necessary to reflect the purposes of sentencing,

and   that   the     court   did     not    consider          all    of     the    § 3553(a)

factors. ∗    At sentencing, Spriggs requested a sentence of 20.5

years, reflecting a Guidelines sentence in the absence of career

offender or armed career criminal enhancements.                            Referencing the

§ 3553(a)     sentencing      factors,         Spriggs        argued        that    he    was

compliant when he was arrested and that the mandatory minimum

and   360-month-to-life         Guidelines        range       were    excessive.          Our

review of the record leads us to conclude that the district

court adequately discharged its responsibility to explain the

sentence imposed with sufficient detail to allow for meaningful

appellate review.          See United States v. Carter, 564 F.3d 325,

329-30 (4th Cir. 2009).          Thus, the district court did not commit

any procedural error in sentencing Spriggs.

             Lastly,       Spriggs    contends           that        his     sentence      is

substantively      unreasonable.           The    district          court    responded     to

Spriggs’     sentencing       arguments          and,     after       considering         the

sentencing factors delineated in § 3553(a), imposed a within-


      ∗
       Spriggs also argues that the district court failed to
explain why it varied above the Guidelines range. As discussed
above, however, Spriggs’ Guidelines range was 360 months to
life, and his 444-month sentence is within that range.



                                           6
Guidelines sentence of 444 months’ imprisonment.                We therefore

conclude that Spriggs has failed to rebut the presumption we

apply to his within-Guidelines sentence.             See United States v.

Allen, 491 F.3d 178, 183 (4th Cir. 2007).

           We   affirm   the   judgment   of   the   district    court.     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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