                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-4150



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


JONATHAN ANTHONY LEE TORRES,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:06-cr-00255)


Submitted:   May 15, 2008                  Decided:   June 16, 2008


Before WILKINSON and MOTZ, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


John C. Hunter, THE JOHN C. HUNTER LAW FIRM, PLLC, Asheville, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina; Don D. Gast, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Jonathan Anthony Lee Torres appeals his conviction and

100-month sentence for possession of ammunition by a convicted

felon, in violation of 18 U.S.C. § 922(g)(1) (2000).             Finding no

reversible error, we affirm.



                         I.   Prosecutorial Misconduct

            Torres first alleges on appeal that the United States

Attorney committed prosecutorial misconduct by (1) improperly and

prejudicially commenting on the credibility of his sole exculpatory

witness, Gail Barnette, and implying extrajudicial information

proved her testimony was false, and (2) intimidating Barnette prior

to trial, thereby effectively denying Torres his right to a fair

trial.     To establish prosecutorial misconduct, a defendant must

show that the prosecutor’s conduct or remarks were improper, and

that the conduct or remarks prejudicially affected his substantial

rights so as to deprive him of a fair trial.             United States v.

Golding, 168 F.3d 700, 702 (4th Cir. 1999).

            The Assistant United States Attorney did not state that

Barnette    had   lied    either   during    cross-examination   or   closing

arguments.    Rather, in response to Barnette’s indication that the

prosecutor had threatened her and scared her into changing her

story, he cross—examined her regarding their conversation the

morning of trial, eliciting Barnette’s acknowledgment that he had


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told her he did not believe her new, inconsistent statement, and

that if she lied on the stand and he could prove it, she could be

prosecuted for perjury.     During closing arguments, the prosecutor

stated several times that Barnette’s testimony was “inherently

incredible” and “unbelievable,” and followed those statements with

a recitation of the evidence supporting his contentions.      He again

recounted his conversation with Barnette the morning of trial,

stating:

     I told her, and she confirmed this with you, that I
     simply told her I didn’t believe what she was telling
     me, and I summed up the evidence for her that you heard
     yesterday, and I told her that if she lied –- I didn’t
     tell her that if she said what she told me she would be
     indicted for perjury. I told her “If you lie under oath
     about anything and we can prove it, you’ll be indicted
     for perjury.”   This was no surprise to her.    And, in
     fact, she admitted that.

           During the Assistant United States Attorney’s closing

statements, the court instructed the jury:      “Members of the jury,

you’ll take your own recollection as to what the evidence was in

the case and not that urged upon you by either counsel.”           The

prosecutor also informed the jury: “anything I say about this

conversation is based not on what I remember, but based on what she

said on the stand.   If you remember it differently, please, you

know, go with your recollections.”       The district court reenforced

this point, instructing the jury that: “You are the sole judges of

credibility of the witnesses in this trial and the weight that

their testimony deserves.    You may believe all, a part, or none of


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what a witness said.”      In addition, the court instructed the jury:

“If a lawyer asked a question which contains an assertion of fact,

you may not consider the assertion as evidence of that fact.                The

lawyers’ statements are not evidence.”

           We find the prosecutor’s statements properly “stress[ed]

to the jury the inconsistencies and improbabilities in [Barnette’s]

testimony.”     United States v. Moore, 710 F.2d 157, 159 (4th Cir.

1983).   Further, his statements did not substantially prejudice

Torres, especially given the district court’s instruction to the

jury   that    it   was   solely   up   to    them   to   determine   witness

credibility.    See id. at 159-60.      We also find the Assistant United

States Attorney did not imply to the jury that he was relying on

extrajudical evidence to inform Barnette during their meeting that

he knew she was lying.

           Next, we find that the Assistant United States Attorney’s

warning to Barnette against committing perjury did not amount to

substantial witness interference.             See Bank of Nova Scotia v.

United   States,    487   U.S.   250,   262   (1988)   (holding   warning    to

attorney implying client would be subject to prosecution for

perjury if the witness testified was not improper and did not give

rise to a finding of prejudice); United States v. Washington, 398

F.3d 306, 310 (4th Cir. 2005) (upholding district court’s finding

that “the prosecutor’s statement that [the witness] possibly faced

prosecution for perjury or obstruction of justice by repudiating


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his earlier statements was, in these circumstances, the act of a

prudent prosecutor.”).



                   II.    Exclusion of Witness Testimony

            Torres      next   contends     the    district      court    erred     by

excluding as irrelevant the testimony of his parents.                    This court

reviews a district court’s evidentiary ruling on the exclusion of

evidence for an abuse of discretion.              United States v. Fulks, 454

F.3d 410, 434 (4th Cir. 2006), cert. denied, 127 S. Ct. 3002

(2007). Although a defendant has a constitutional right to present

evidence in his favor, see United States v. Moussaoui, 382 F.3d

453, 471 (4th Cir. 2004), “a defendant’s right to present a defense

is not absolute: criminal defendants do not have a right to present

evidence    that   the     district   court,      in     its    discretion,     deems

irrelevant or immaterial.” United States v. Prince-Oyibo, 320 F.3d

494, 501 (4th Cir. 2003) (citing Taylor v. Illinois, 484 U.S. 400,

410 (1988)).

            We find Torres fails to demonstrate that the district

court abused its discretion in excluding testimony about Torres’

parents’ alleged past encounters concerning a traffic ticket and a

motor vehicle accident with one of the arresting officers.                         See

United   States    v.     Leeson,   453   F.3d    631,    636    (4th    Cir.   2006)

(“Federal   Rule     of    Evidence   401   defines       relevant      evidence    as

‘evidence having any tendency to make the existence of any fact


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that is of consequence . . . more probable or less probable than it

would be without the evidence.’”) (quoting Fed. R. Evid. 401),

cert. denied, 127 S. Ct. 1874 (2007).



                III.    Upward Departure on Sentencing

            Torres   argues       the   district   court    failed      to   provide

adequate notice of its intent to depart from the guidelines.

Federal Rule of Criminal Procedure 32(h) requires the sentencing

court give the parties reasonable notice when it is considering a

departure on a ground not identified as a possible basis for

departure   either     in   the    presentence     report    or    in   a    party’s

prehearing submission.        We find Torres had adequate notice the

court would consider an upward departure at sentencing.                         The

Government requested an upward departure prior to sentencing in its

objections to the presentence report, to which Torres responded.

While the probation officer did not adopt the Government’s view, it

noted that the position of the Government would be “provided to the

court for consideration at sentencing.”             The Government restated

its   intent   to    seek   an     upward   departure       in    its   sentencing

memorandum.    Torres thus had sufficient notice the court would

consider the Government’s request for an upward departure at

sentencing.

            Next, Torres argues the district court erroneously based

its decision to depart upwardly on evidence of prior arrests that


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did not result in convictions.                  A departure pursuant to U.S.

Sentencing Guidelines Manual (“USSG”) § 4A1.3 (2006) is encouraged,

provided that the criminal history category does not account

adequately     for     the    defendant’s    past      criminal   conduct    or    the

likelihood that he will commit other crimes.                  See United States v.

Dixon, 318 F.3d 585, 588 (4th Cir. 2003).               However, a “prior arrest

record itself shall not be considered for purposes of an upward

departure.”     USSG § 4A1.3(a)(3) (2006).

              The district court improperly considered Torres’ prior

arrests. We find the error harmless, however, because the district

court relied primarily on Torres’ extensive criminal history,

including     probation        violations,      revocations,      and    history    of

assaulting law enforcement officers, in deciding to depart, and

thus the record supports the upward departure without consideration

of Torres’ prior arrests.          See United States v. Left Hand Bull, 477

F.3d 518, 520-21 (8th Cir. 2006) (holding district court’s reliance

on   prior    arrests        harmless   where    court     relied   primarily      on

defendant’s “extensive criminal history and supervised release

violations.      The record supports the upward departure, without

consideration of his arrest record or warrants”), cert. denied, 127

S. Ct. 3072 (2007); United States v. Hawk Wing, 433 F.3d 622, 629

(8th   Cir.    2006)    (“[W]e    conclude      that    the   district    court    had

adequate grounds to depart upward despite its error in considering

the prior arrests for which the PSR did not set forth the factual


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details.”); United States v. Matheny, 450 F.3d 633, 642-43 (6th

Cir. 2006) (finding that although the district court committed

error in considering a prior arrest, the error did not require

reversal because the error did not affect defendant’s substantial

rights since the record otherwise supported the upward departure).

          Accordingly, we affirm the district court’s judgment. 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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