United States v. Victor Garcia

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 14a0146p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 13-1344

v.

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Defendant-Appellant. -

VICTOR LAMONT GARCIA,

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Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:12-cr-00107-1—Robert J. Jonker, District Judge.

Argued: November 20, 2013

Decided and Filed: July 10, 2014

Before: MOORE, GIBBONS, and SUTTON, Circuit Judges.

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COUNSEL

ARGUED: Dennis J. Clark, CLARK LAW FIRM PLLC, Detroit, Michigan, for

Appellant. Tessa K. Hessmiller, UNITED STATES ATTORNEY’S OFFICE, Grand

Rapids, Michigan, for Appellee. ON BRIEF: Dennis J. Clark, CLARK LAW FIRM

PLLC, Detroit, Michigan, for Appellant. Sean C. Maltbie, UNITED STATES

ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.

GIBBONS, J., delivered the opinion of the court, in which SUTTON , J., joined

and MOORE, J., joined in part. MOORE, J. (pp. 17–20), delivered a separate opinion

concurring in the judgment.

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OPINION

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JULIA SMITH GIBBONS, Circuit Judge. When officers arrived at an apartment

complex to investigate reported gunfire, Victor Garcia fled. The officers pursued Garcia,

and one officer saw objects fall from his person as he scrambled over a fence. Once the

1

No. 13-1344 United States v. Garcia Page 2

officers had subdued and arrested Garcia, they returned to the fence and discovered two

items among other snow-covered debris: a silver revolver nestled in the snow and a

baseball cap perched atop the snow. A federal indictment and two-day trial followed,

and the jury convicted Garcia of one count of being a felon in possession of a firearm.

The district court subsequently sentenced Garcia to a Guidelines sentence of ninety-six

months of imprisonment. Garcia now appeals. He maintains that the evidence was

insufficient to establish that he possessed the revolver, the prosecutor improperly

vouched for the credibility of a Government witness during closing arguments, and the

sentence imposed by the district court was substantively unreasonable. We affirm

Garcia’s conviction and sentence.

I.

Shortly before midnight, a woman in Kalamazoo, Michigan, awoke to the sound

of gunfire—one initial shot followed by between two and four more. She immediately

called 911, and as she was making the call she heard additional gunshots. She peered

through her front window and saw someone “dart off.” She described that person as

wearing a baseball cap and an orange, thigh-length coat with fur around the hood.

Officer Joseph Boutell and his partner were dispatched to the apartment complex, and

as they pulled into its parking lot about three minutes later they saw a man—later

identified as Garcia—wearing a white jacket1 and walking through the complex. As far

as the officers could tell, Garcia was not wearing a baseball cap.

Garcia looked in the direction of the officers’ vehicle and quickened his pace.

The officers parked and exited their vehicle, intent on following Garcia to investigate his

involvement in the gunfire. As Garcia approached the building’s corner, he stretched

into a full sprint. The officers pursued Garcia but could not keep pace. Sergeant Chad

VanderKlok had arrived on the scene, however, and he continued the pursuit. Garcia

climbed over a fence and fell to the ground, and as he stood up, VanderKlok noticed that

1

Witnesses testified that the perceived color of Garcia’s coat depended on the lighting: It

appeared to be white in bright light but appeared to be a darker color when it was not illuminated. There

was no fur on Garcia’s coat.

No. 13-1344 United States v. Garcia Page 3

“some objects had fallen from his person.” Garcia then continued to run toward a large

pile of brush, and as he fell into the brush, VanderKlok caught Garcia and jumped onto

his back. Garcia resisted arrest, but when Boutell caught up with them, the two officers

were able to subdue Garcia, take him into custody, and place him in a squad car. An

officer drove Garcia to the police station, and throughout the trip Garcia expressed

concern about “his hat.”

Meanwhile, VanderKlok searched the area where he had seen objects fall from

Garcia’s person. In the snow, he discovered a baseball cap and a silver revolver. The

revolver was resting on top of an old boot, and both its handle and part of its barrel were

buried in the snow.2 The snow had fallen within the past twenty-four hours, and there

were no tracks in the snow other than those of Garcia and the officers. The temperature

at the time was twenty-three degrees, but beads of water appeared on the revolver.

VanderKlok inferred at trial that “the gun was warmer than the snow because the water

had not frozen, and obviously the temperature [was] below freezing.” According to

VanderKlok, the baseball cap and revolver were “the only two objects that appeared to

have recently settled on top of the snow.” But there were other objects in the area

submerged beneath the snow, including a plastic jug and a cigar or jewelry box.

Three unfired rounds and two spent casings were inside the revolver’s cylinder

when it was seized. No fingerprints were found on the gun or the casings. No gunshot

residue tests were performed, and although the gun was swabbed for DNA, no follow-up

tests were conducted.

A federal grand jury returned an indictment charging Garcia with one count of

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and a jury

convicted Garcia after a two-day trial in November 2012. The probation office’s

presentence investigation report recommended a base offense level of 24, then applied

a two-level increase because the revolver was stolen.3 That produced a total offense

2

Garcia submitted two photographs of the revolver as an appendix to his brief in this court.

3

The parties stipulated at trial that the revolver had been stolen but that Garcia did not participate

in the theft.

No. 13-1344 United States v. Garcia Page 4

level of 26. Based on a criminal history category of IV, the report stated that the

applicable Guidelines sentencing range was 92 to 115 months of imprisonment.

At the March 2013 sentencing hearing, the district court expressed concern about

Garcia’s vacillation between stages of articulateness and intelligence, on the one hand,

and immaturity and violence on the other hand. In the district court’s mind, Garcia was

proving himself to be incorrigible. He was written up eighteen times while he was

incarcerated awaiting trial and sentencing, for example. The district court concluded that

neither a departure nor a variance was warranted and sentenced Garcia to ninety-six

months of imprisonment. Garcia timely appealed.

II.

Garcia advances three arguments on appeal. He first contends that the evidence

was insufficient to establish that he possessed the revolver because there was no direct

evidence of his possession and the circumstantial evidence of possession is belied by a

photograph showing that portions of the revolver were buried in the snow. Garcia next

argues that the prosecutor improperly vouched for the credibility of a Government

witness. And third, he challenges the substantive reasonableness of the sentence

imposed by the district court. We take each argument in turn.

A.

Garcia maintains that the evidence presented at trial was insufficient to establish

beyond a reasonable doubt that he possessed the revolver. We review de novo a

challenge to the sufficiency of the evidence in a criminal case. United States v. Howard,

621 F.3d 433, 459 (6th Cir. 2010). The evidence must be viewed in the light most

favorable to the prosecution, and we ask whether any rational trier of fact could have

found the contested elements of the crime beyond a reasonable doubt. Id. The defendant

“bears a ‘very heavy burden’ when he challenges the sufficiency of the evidence.”

United States v. Owens, 426 F.3d 800, 808 (6th Cir. 2005) (quoting United States v.

Spearman, 186 F.3d 743, 746 (6th Cir. 1999)). We can neither independently weigh the

No. 13-1344 United States v. Garcia Page 5

evidence, nor make our own assessment of the credibility of the witnesses who testified

at trial. Howard, 621 F.3d at 460.

A defendant’s conviction under 18 U.S.C. § 922(g)(1) may be premised on either

actual or constructive possession of a firearm. United States v. Campbell, 549 F.3d 364,

374 (6th Cir. 2008). “Actual possession requires that a defendant have immediate

possession or control of the firearm, whereas constructive possession exists when the

defendant ‘does not have possession but instead knowingly has the power and intention

at a given time to exercise dominion and control over an object, either directly or

through others.’” Id. (quoting United States v. Grubbs, 506 F.3d 434, 439 (6th Cir.

2007)). “The element of possession can be proven by either direct or circumstantial

evidence.” Id. “‘Circumstantial evidence alone is sufficient to sustain a conviction.’”

United States v. Wettstain, 618 F.3d 577, 583 (6th Cir. 2010) (quoting Spearman, 186

F.3d at 746).

The prosecution’s case against Garcia was premised on a theory of actual rather

than constructive possession. The United States posited that the revolver fell from

Garcia’s person as he clambered over a fence in an effort to avoid apprehension by the

officers who pursued him. The Government acknowledged the absence of direct

evidence proving actual possession: No one saw Garcia holding the weapon, and

VanderKlok acknowledged that he never saw Garcia drop the gun. The prosecution

instead relied on circumstantial evidence and a chain of inferences to establish Garcia’s

possession of the revolver: Garcia fled when the officers approached. He resisted arrest.

VanderKlok saw objects fall from Garcia as he fell from the fence. When VanderKlok

returned to that area to see what had fallen, he discovered the baseball cap and silver

revolver sitting about eighteen inches apart. Those objects, and only those objects,

rested on the freshly-fallen snow. Despite the sub-freezing air temperature, small

droplets of water were visible on the revolver’s surface. Officers found no contraband

on Garcia’s person and no other evidence to explain his flight. The Government’s

witnesses recited these facts to the jurors, and the prosecution asked them to infer that

Garcia possessed the revolver while fleeing the officers.

No. 13-1344 United States v. Garcia Page 6

We have found similar circumstantial evidence to be sufficient to sustain a

conviction for actual possession of a firearm. In United States v. Barnett, we sustained

a defendant’s conviction where the officers saw the defendant throw a long black object

to the ground as he fled. 398 F.3d 516, 522 (6th Cir. 2005). The officers subsequently

discovered a black and chrome rifle in the front yard, and we held that the prosecution

had presented sufficient evidence to establish that the defendant had possessed the

weapon. Id. Likewise, in United States v. Williamson, the pursuing officers saw the

defendant pull a black object from his side and throw it. 483 F. App’x 139, 142 (6th Cir.

2012). The officers discovered a black pistol in the area, and one officer testified that

“the location of the pistol was consistent with the direction that [the defendant] had

thrown the object.” Id. We held that there was sufficient evidence that the defendant

had possessed the weapon. Id.

Those cases are distinguishable, says Garcia, because neither Boutell nor

VanderKlok saw Garcia possess an object that specifically resembled the silver revolver.

This argument conflates sufficiency with necessity. The prosecution’s case doubtless

would have been stronger had VanderKlok recognized one of the “objects” to be a shiny

silver revolver. Yet we have never held that a possession conviction cannot be sustained

without direct evidence that the defendant possessed something resembling the

contraband that the defendant stands convicted of possessing. Quite the opposite. Our

possession cases establish that no single fact or set of facts is a necessary condition to

establish possession of contraband. Rather, we must view all of the evidence, both direct

and circumstantial, in the light most favorable to the prosecution, then ask whether any

rational trier of fact could have found beyond a reasonable doubt that the defendant

possessed the contraband. Howard, 621 F.3d at 459.

We have sustained drug possession convictions in analogous cases. The

defendant in United States v. Clemons led officers on a high-speed car chase before

exiting his vehicle and fleeing on foot. 9 F. App’x 286, 287 (6th Cir. 2001). An officer

intercepted the defendant, drew his firearm, and instructed the defendant to halt. Id. As

the defendant came to a stop, the officer witnessed the defendant “toss[] an object out

No. 13-1344 United States v. Garcia Page 7

of his hand.” Id. Another officer corroborated that statement, testifying that she saw the

defendant “throw an item to the ground.” Id. The officers arrested the defendant,

returned to the area where the defendant had thrown the object, and discovered a bag of

crack cocaine. Id. We held that the evidence was sufficient to sustain a possession

conviction, noting specifically that the evidence of flight was probative of criminal

activity. Id. at 289.

As officers approached the defendant in United States v. Jones, he “darted behind

a large tree for a second or two” and reemerged to ask why the officers were “messing

with [him].” 63 F. App’x 826, 828 (6th Cir. 2003) (internal quotation marks omitted).

One officer testified that the defendant “ma[de] a motion with his hand behind [the]

tree.” Id. The officers looked behind the tree and discovered a vial filled with twenty-

three rocks of crack cocaine. Id. After the officers arrested the defendant and found

$597 on his person, the defendant admitted that he was a drug dealer, but he did not

confess to possession of the crack cocaine. Id. We held that this evidence, including the

incriminating statement, was sufficient to sustain the possession conviction even though

no witness saw the defendant possess the vial of drugs. Id. at 831.

Other circuits have sustained possession convictions in similar circumstances as

well. The defendant in United States v. Burton fled when officers approached, and he

tossed two items to the ground. 30 F.3d 136, at *1 (7th Cir. 1994) (per curiam). The

officers described the second item as a “black shiny object” but described the first item

only as “something.” Id. Officers searched the area where the defendant had thrown the

first object—the “something”—and found a pistol and loaded clip. Id. The officers then

searched the area where the defendant had thrown the “black shiny object” and

discovered a small film container with twelve rocks of crack cocaine inside. Id. The

Seventh Circuit upheld the conviction, highlighting that the pistol and clip were the only

“notable objects found in the vicinity” where the “something” had been thrown. Id. at

*2.

An officer pursued the fleeing defendant in United States v. Rucker and saw him

“bend down and place something on the ground.” 188 F. App’x 772, 774 (10th Cir.

No. 13-1344 United States v. Garcia Page 8

2006). The officer ultimately apprehended the defendant, who resisted arrest, and

another officer retraced the route of the pursuit and discovered a handgun. Id. A store

owner identified the defendant as the person who robbed his store and testified that the

gun used in the robbery was similar to the gun recovered in the field. Id. at 775–77.

Although no fingerprints were recovered on the weapon, the court concluded that there

was sufficient evidence to establish that the defendant possessed the handgun, stating

that the defendant’s “theory that the gun could already have been there is wholly

speculative and does not undermine the jury’s contrary finding.” Id. at 776; see also

United States v. Jefferson, 206 F. App’x 654, 655–56 (8th Cir. 2006) (per curiam) (“We

have repeatedly held there is sufficient evidence to support a conviction for felon in

possession where a gun was immediately recovered from the location where the

defendant was observed dropping something.” (citing United States v. Light, 406 F.3d

995, 998 (8th Cir. 2005); United States v. Echols, 144 F.3d 584, 585 (8th Cir. 1998);

United States v. Rankin, 902 F.2d 1344, 1345–46 (8th Cir. 1990))).

These decisions reveal no single hallmark of sufficiency in cases charging actual

possession of contraband. No common factual thread runs through each of the cases,

and neither the presence nor the absence of any particular fact has been deemed

dispositive. Accordingly, to sustain a conviction for actual possession of contraband that

the defendant allegedly discarded before his or her arrest, the witness linking the

defendant to the contraband need not be able to describe with specificity the object

thrown by the defendant if adequate circumstantial evidence links the defendant to the

contraband. The relevant question in these cases is whether the Government’s theory

is supported by sufficient circumstantial evidence of guilt. Although the circumstantial

evidence must support a determination of guilt, that evidence “need not remove every

reasonable hypothesis except that of guilt.” United States v. Vannerson, 786 F.2d 221,

225 (6th Cir. 1986).

The circumstantial evidence presented at Garcia’s trial supported the reasonable

inference that the revolver was one of the objects that fell from Garcia’s person as he

scaled the fence. Portions of the gun’s handle and barrel were buried in the snow, but

No. 13-1344 United States v. Garcia Page 9

the revolver’s cylinder lay on top of the snow. Jurors thus could infer that the gun came

to rest in that position since the last snowfall less than twenty-four hours earlier. There

were no other footprints in the area, suggesting that no one else had visited that area

since the last snowfall. Despite the below-freezing ambient air temperature, moreover,

there were droplets of water on the gun. Although rational jurors might draw different

inferences from the water’s presence, one reasonable inference is that the gun had just

recently come to occupy its position on the snowy ground. The reasonableness of that

inference is further enhanced by the reports of gunfire just minutes before Garcia fled

the officers; the water droplets, the revolver’s proximity to Garcia, and the two spent

rounds in the revolver together permitted jurors to infer that Garcia fired at least some

of those gunshots. Once the district court determined that evidence of Garcia’s flight

from the officers was admissible, moreover, the jurors were entitled to draw reasonable

inferences, including inferences of guilt, from the fact of his flight. See United States

v. Oliver, 397 F.3d 369, 376 (6th Cir. 2005). Because the officers found no contraband

on Garcia’s person when they arrested him, a reasonable juror could infer that Garcia

fled out of fear that he would be apprehended while unlawfully possessing the revolver.

We need not determine whether the evidence would have been sufficient if the water

droplets were not visible on the revolver’s surface, or if Garcia had not fled when the

officers approached. The circumstantial evidence presented to the jurors, examined in

toto, was sufficient to support the verdict. See United States v. Arnold, 486 F.3d 177,

181 (6th Cir. 2007) (en banc) (“[W]e cannot overturn the jury’s decision merely because

it had to draw reasonable inferences to find [the defendant] guilty.”).

The inference of possession is unreasonable, Garcia contends, because the gun

was partially buried in the snow, as indicated in the photographs that the United States

submitted to the jury. We decline Garcia’s invitation to weigh the photographic

evidence anew; that is the jury’s prerogative, not ours. See United States v. Jackson, 470

F.3d 299, 309 (6th Cir. 2006). Garcia’s trial counsel made that argument to the jury

No. 13-1344 United States v. Garcia Page 10

during closing arguments, and the jury rejected it.4 For similar reasons, we reject

Garcia’s attempt to shift the court’s focus to all of the evidence that the United States did

not present to the jury. He places great emphasis on the lack of fingerprint and DNA

evidence, and the Government’s failure to conduct gunshot residue analysis. But we are

confined to weighing the sufficiency of the evidence the government presented to the

jury; we may not consider the potential magnitude of the evidence not presented. The

absence of evidence is an argument for the jury.

The concurring opinion does not dispute the correct standard yet insists that we

may consider the magnitude of the evidence not presented in evaluating a sufficiency-of-

the-evidence challenge, citing language from United States v. Bailey, 553 F.3d 940, 946

(6th Cir. 2009), in a parenthetical and saying that the fact that the proof included

evidence of the absence of evidence warrants consideration of the lack of fingerprint or

DNA evidence. Yet Bailey stands for no such principle, and the concurrence’s assertion

goes far beyond the universally accepted standard for evaluating sufficiency-of-the-

evidence challenges. As Bailey and other cases teach, the standard is whether the

evidence presented is insufficient “for any rational factfinder to conclude beyond a

reasonable doubt” that the Government has proven an essential element of the case. Id.

at 949; see also United States v. Dedman, 527 F.3d 577, 595 (6th Cir. 2008). This is

indeed “horn book law.” See United States v. Zepeda, 738 F.3d 201, 213 (9th Cir. 2013)

(“It is horn book law that we, as an appellate court, are limited to the record before the

jury when assessing the sufficiency of the evidence.”). Bailey held that the Government

had not met that burden, and the language referred to by the concurring opinion is

merely an illustrative explication of why the evidence that was presented was

insufficient.

To be sure, discussing evidence not presented may provide a very useful way of

explaining the import or lack of import of what was presented in a particular case. The

4

The defendant in Williamson similarly argued that “it was unlikely, if not impossible, to throw

a pistol from the hallway at the top of the stairs, around the closet door, and into the closet, especially if

it made only one ‘thump.’” 483 F. App’x at 142. We stated that the jurors, who had photographic

evidence in front of them, could make that determination themselves. Id. (citing United States v. Daniels,

170 F. App’x 409, 413 (6th Cir. 2006)). So too here.

No. 13-1344 United States v. Garcia Page 11

court in Bailey engaged in no inappropriate analysis. But at the end of the day, we look

at what was presented, not what was not presented—whether or not an attorney has

questioned a witness about the absence of specific evidence. What was not presented

is not the focus and is not properly considered in application of the ultimate test. To

conclude otherwise is an invitation to examine whether the Government might have

presented a more convincing case, not whether it in fact presented a sufficient one. The

concurring opinion, even though agreeing with our result, strays into a weighing of the

evidence, an exercise that we do not undertake here, and one properly for the jury.

The United States thus presented sufficient evidence that Garcia possessed the

revolver and that the revolver fell to the ground as he climbed the fence. Although

Garcia’s conviction required the triers of fact to accept the chain of inferences that the

United States posited at trial, each of those inferences is reasonable and supports

Garcia’s conviction.

B.

Garcia next argues that the prosecutor improperly vouched for the credibility of

Sergeant VanderKlok during his closing argument. We disagree.

Because “[p]rosecutors have a special duty to seek justice, not merely to

convict,” Connick v. Thompson, 131 S. Ct. 1350, 1362 (2011) (internal quotation marks

omitted), the Constitution and the courts impose restraints on the trial conduct of

Government attorneys that are sometimes more onerous than the analogous restraints

imposed on the defense. One such restriction is the prohibition of prosecutorial

vouching. Government attorneys may render disinterested arguments, both offensive

and defensive, to persuade the jurors of the case’s merit, but a prosecutor may not taint

the jurors’ deliberations with the attorney’s own opinions and convictions. See United

States v. Francis, 170 F.3d 546, 549–51 (6th Cir. 1999).

Allegations of improper vouching are reviewed for both impropriety and

flagrancy. Under this bifurcated analysis, we first determine whether the prosecutor’s

statement was improper. Francis, 170 F.3d at 549. “Improper vouching occurs when

No. 13-1344 United States v. Garcia Page 12

a prosecutor supports the credibility of a witness by indicating a personal belief in the

witness’s credibility[,] thereby placing the prestige of the office of the United States

Attorney behind that witness.” United States v. Trujillo, 376 F.3d 593, 607 (6th Cir.

2004) (internal quotation marks omitted). “Improper vouching involves either blunt

comments or comments that imply that the prosecutor has special knowledge of facts not

in front of the jury.” Id. at 607–08 (internal alterations and quotation marks omitted).

If we conclude that the prosecutor improperly vouched for a witness’s credibility,

we then ask whether the prosecutor’s remarks were sufficiently flagrant to warrant

reversal of the defendant’s conviction. Several factors inform our assessment of

flagrancy, including: (1) whether the prosecutor’s statement tended to mislead the jurors

or unfairly prejudice the defendant, (2) whether the improper vouching consisted of one

isolated comment or a series of improper remarks, (3) whether the improper statement

appears to have been deliberate or inadvertent, and (4) the strength of the Government’s

case against the defendant. Francis, 170 F.3d at 549–50.

During his closing argument, the Assistant United States Attorney stated:

If Sergeant VanderKlok is lying about what he saw, why didn’t he just

come in here and tell you, “Yeah, I saw him drop the gun”? Wouldn’t

that make it a lot easier for everybody? “I saw him drop the gun.”

Because that’s not what he saw. He came in here, he took an oath to tell

the truth, and he told you the truth about what happened that night.

About what he saw.

Garcia argues that “the prosecutor improperly used his position to vouch for his key

witness and other evidence presented by the prosecution and to definitively inform the

jury that his office was certain of Garcia’s possession of the firearm.” Because Garcia

did not object to the prosecutor’s statement during the Government’s closing argument,

we review for plain error. See United States v. Jackson, 473 F.3d 660, 671 (6th Cir.

2007).

We find the prosecutor’s remarks to be unobjectionable. The prosecutor never

suggested that he possessed corroborative evidence that had been withheld from the

jurors, nor did he otherwise “imply any special knowledge” of VanderKlok’s credibility.

No. 13-1344 United States v. Garcia Page 13

See United States v. Reid, 625 F.3d 977, 984 (6th Cir. 2010). He did not speak in the

first person, nor did he otherwise profess a personal belief in the veracity of

VanderKlok’s testimony. See United States v. Henry, 545 F.3d 367, 380 (6th Cir. 2008)

(prohibiting statements of “clear personal belief”); United States v. Krebs, 788 F.2d

1166, 1176–77 (6th Cir. 1986) (noting the potential impropriety of phrases such as “I

believe,” “I suggest,” and “I submit”). He spoke instead as an advocate seeking to

restore, through argument rather than his own personal assurance, the credibility of his

chief witness. That is a permissible prosecutorial function. Cf. Jackson, 473 F.3d at 672

(“[A]lthough the remarks were repeated and improper, it appears that the prosecutor was

attempting, however ineptly, to argue that the government’s witnesses were credible

because their testimony was consistent and corroborated by non-testimonial evidence

and because they had no reason to lie. While Jackson may disagree with each of those

contentions, none was founded upon an implication that the prosecutor personally

believed the witnesses or knew of evidence not before the jury that demonstrated their

truthfulness.”).

The establishment or rehabilitation of a witness’s credibility may amount to

improper vouching even if the prosecutor refrains from using phrases such as “I believe”

and “I submit.” A first-person narrative is neither necessary nor sufficient to establish

impropriety. But our cases have found improper vouching only where the disputed

remark put the spotlight on the prosecutor—the prosecutor’s personal beliefs, the

prestige of her office, her power to enforce and implement the plea agreement, her

unique knowledge of the facts, etc. Measured against that standard, the prosecutor’s

statement at the close of Garcia’s trial was permissible. The prosecutor’s comment—“he

told you the truth about what happened that night”—might, in other contexts, be

interpreted as a personal endorsement of VanderKlok’s candor. Here, however, the

remark does not lend itself to that interpretation. Rather, the prosecutor argued that the

alleged untruthfulness of VanderKlok’s testimony was belied by the ostensibly

commonsense conclusion that if VanderKlok had decided to lie, he would have spun a

more persuasive yarn. The jurors were free to accept or reject the prosecutor’s

argument, but it constituted permissible lawyering, and accordingly, we find no error.

No. 13-1344 United States v. Garcia Page 14

C.

Garcia also contends that his sentence was unreasonable because the district

court failed to consider all of the applicable factors under 18 U.S.C. § 3553(a), gave an

unreasonable amount of weight to Garcia’s criminal history, and impermissibly based

its sentence on a factor that is not enumerated in § 3553(a).

Garcia presents his claims under the banner of substantive unreasonableness, but

some of his allegations address procedural rather than substantive unreasonableness. A

district court commits significant procedural error when it fails to calculate the

Guidelines sentencing range, improperly applies the Guidelines or otherwise calculates

the incorrect Guidelines sentencing range, treats the Guidelines as mandatory, fails to

consider the § 3553(a) factors, selects a sentence based on clearly erroneous facts, or

fails adequately to explain the chosen sentence. United States v. Brooks, 628 F.3d 791,

795–96 (6th Cir. 2011). The substantive component of our reasonableness inquiry

instead focuses on the actual sentence imposed by the district court, including the extent

of any variance from the applicable Guidelines sentencing range. See Gall v. United

States, 552 U.S. 38, 51 (2007). To determine whether a sentence is substantively

unreasonable, we look to whether the district court chose the sentence arbitrarily, based

its sentence on impermissible factors, or gave unreasonable weight to one of the §

3553(a) factors. Brooks, 628 F.3d at 796. The reasonableness of the sentence is

reviewed for abuse of discretion, and if the district court imposed a sentence within the

applicable Guidelines sentencing range, we presume the sentence to be substantively

reasonable. United States v. Jeter, 721 F.3d 746, 757 (6th Cir. 2013).

Garcia first contends that the district court did not afford sufficient weight to

certain § 3553(a) factors, including mitigating circumstances and the nature of the

offense. More generally, he argues that the sentence “was simply greater than necessary

to punish the crime . . . and greater than necessary to achieve appropriate sentencing

goals.” The record reveals that the district court duly considered each of the § 3553(a)

factors. See DE 76, Sentencing Tr., Page ID 726 (“The question then is what is the

sentence that is sufficient but not greater than necessary under Section 3553 to

No. 13-1344 United States v. Garcia Page 15

accomplish all the purposes that counsel have alluded to here? The need to punish and

deter appropriately, the need to protect the public, the need to promote rehabilitative

opportunities, the need to reflect overall the seriousness of the offense and to promote

respect fo the law. The need to look at Mr. Garcia as an individual, both in terms of

what he did here and in terms of what he did in his life coming to this point and try to

balance all of those factors.”). The sentencing court had presided over Garcia’s trial and

was familiar with the nature and circumstances of the offense. The transcript of the

sentencing hearing discloses that the court reviewed its trial notes before the hearing, and

the court ultimately stated, “I just can’t find a basis on this record to depart or vary

outside the guideline range.” Insofar as Garcia raises a procedural challenge to the

application of the two-level enhancement because Garcia did not participate in the theft

of the firearm, the Guidelines provide that the enhancement “applies regardless of

whether the defendant knew or had reason to believe that the firearm was stolen,”

U.S.S.G § 2K2.1 cmt. n.8(B), and we have held that application of the enhancement is

reasonable even where the defendant did not know that the gun was stolen, United States

v. Webb, 403 F.3d 373, 384 (6th Cir. 2005).

The district court also did not give undue weight to Garcia’s criminal history.

To be sure, the court spent considerable time addressing Garcia’s criminal history and

proclivity for violence. The parties discussed at some length Garcia’s behavior while

incarcerated, for example, and the court stated that Garcia’s prior convictions “weren’t

all terribly serious, but some were, and the pattern is very disturbing.” But the court

considered Garcia’s criminal history for the permissible purpose of determining the

proper sentence in light of the need for deterrence and public protection, and the court

acknowledged both the mitigating and aggravating effects of Garcia’s extensive criminal

history. The transcript reveals thoughtful discussion and consideration of Garcia’s

criminal past, and we find the court’s analysis to be eminently reasonable.

Nor did the district court act improperly when it observed that Garcia was on the

verge of being classified as an armed career criminal. The court adverted to the fifteen-

year mandatory minimum sentence that would have applied had Garcia qualified as an

No. 13-1344 United States v. Garcia Page 16

armed career criminal, but the court did not actually impose that sentence. Garcia

therefore has no foundation from which to argue that his sentence was based on an

impermissible factor.

This court must afford “due deference” to the district court’s determination of the

appropriate length of a defendant’s sentence. United States v. Bolds, 511 F.3d 568, 581

(6th Cir. 2007) (internal quotation marks omitted). We find no reason to question the

district court’s exercise of its discretion when it applied the § 3553(a) factors and

calculated Garcia’s sentence, and Garcia thus cannot overcome the presumption that the

district court’s Guidelines sentence was substantively reasonable.

III.

For these reasons, we affirm.

No. 13-1344 United States v. Garcia Page 17

___________________________________

CONCURRING IN THE JUDGMENT

___________________________________

KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. I concur

in the judgment of the court. However, I note my disagreement with the majority’s

refusal to consider the lack of fingerprint or DNA evidence tying Garcia to the gun

recovered from the snow. The majority emphasizes that our sufficiency-of-the-evidence

review is restricted to the evidence presented at trial. The evidence that no fingerprints

were recovered from the gun and no DNA testing was conducted was introduced at trial.

On direct examination by the government, a forensics examiner for the Kalamazoo

County Sheriff’s Department testified that no fingerprints were recovered from the gun,

shell casings, or bullets. R. 74 (Trial Tr. I at 205) (Page ID #559). The examiner

testified that conditions were “far from ideal” for the recovery of fingerprints due to the

gun being found in snow and the materials of which the gun and bullets were made. Id.

at 205–07 (Page ID #559–61). On cross-examination by Garcia’s counsel, the examiner

testified that the trigger, trigger guard, and grip of the gun were swabbed for DNA, but

that the DNA was never tested. R. 75 (Trial Tr. II at 229) (Page ID #583). The

examiner testified that factors in deciding whether to run tests included cost, the

expectation of a probative result, and time. Id. at 231 (Page ID #585). Garcia did not

conduct independent fingerprint or DNA testing that he is attempting to introduce for the

first time to this court; he is simply asking this court to consider testimony that both he

and the government solicited on the investigative decisions of the police and forensic

examiners. The failure to recover fingerprints and the decision not to conduct DNA

testing was in front of the jury and so may be considered in our review of the sufficiency

of the evidence. See United States v. Bailey, 553 F.3d 940, 946 (6th Cir. 2009)

(reversing a conviction due to insufficient evidence and noting that “[o]f particular

significance, the government could not show that Bailey’s fingerprints were on the

gun”). Considering this, and all other evidence presented at trial “in the in the light most

favorable to the prosecution,” I conclude that “any rational trier of fact could have found

No. 13-1344 United States v. Garcia Page 18

the essential elements of the crime beyond a reasonable doubt,” United States v. Geisen,

612 F.3d 471, 488 (6th Cir. 2010) (internal quotation marks omitted), and therefore agree

that the government produced sufficient evidence of Garcia’s guilt.

I also agree that the district court did not abuse its discretion in sentencing

Garcia.

I do not agree, however, that a prosecutor telling the jury during closing

argument that a witness told the truth is “unobjectionable.” Maj. Op. at 13. The

prosecutor suggested that VanderKlok must have been telling the truth because if he was

going to lie, he would have told a better lie.1 Then, the prosecutor stated that

“[VanderKlok] came in here, he took an oath to tell the truth, and he told you the truth

about what happened that night. About what he saw.” R. 75 (Trial Tr. at 338) (Page ID

#692). Together, these statements constitute an improper expression of the prosecutor’s

personal belief about VanderKlok’s credibility.

The prosecutor’s theory that a liar would have told a more beneficial lie is not

an “ostensibly commonsense conclusion.” Maj. Op. at 14. The psychology of lying is

not a matter of common sense or common knowledge. Cf. Slagle v. Bagley, 457 F.3d

501, 519 (6th Cir. 2006) (holding that a prosecutor may properly ask the jury to use

common knowledge to make the inference that walking across a floor with floorboards

produces a creaking noise). The prosecutor’s statement that if VanderKlok were lying

he would have said that he saw Garcia drop the gun is nothing more than speculation.

This speculative theory was followed by the blunt comment that VanderKlok “told you

the truth.” This was not an argument for a witness’s credibility grounded in the evidence

introduced at trial. Cf. United States v. Reid, 625 F.3d 977, 985 (6th Cir. 2010) (holding

that a prosecutor’s suggestion that a lying witness would have lied more persuasively

was not improper when followed by the statement that the witness’s testimony was

corroborated by four other people); Cristini v. McKee, 526 F.3d 888, 901–02 (6th Cir.

1

Specifically, the prosecutor stated, “[i]f Sergeant VanderKlok is lying about what he saw, why

didn’t he just come in here and tell you, ‘Yeah, I saw him drop the gun’? Wouldn’t that make it a lot easier

for everybody? ‘I saw him drop the gun.’ Because that’s not what he saw.” R. 75 (Trial Tr. at 338) (Page

ID #692).

No. 13-1344 United States v. Garcia Page 19

2008) (calling witnesses “liars” was not constitutionally improper because the

“arguments focused the jury on the evidence, not the prosecutor’s personal opinion”).

Nor did the prosecutor ask the jury to conclude that VanderKlok was credible based on

his demeanor or the specific circumstances of his testimony. Cf. United States v.

Jackson, 473 F.3d 660, 672 (6th Cir. 2007) (holding that a prosecutor’s repeated

statements that a witness told the truth were improper but did not express a personal

belief in the witness’s credibility because the prosecutor asked the jurors to infer

credibility from the consistency of the testimony and the fact that the witness had no

reason to lie). Instead, based on the prosecutor’s personal opinion that a liar would have

told a different story, the prosecutor shared his conclusion that VanderKlok told the

truth.

The majority suggests that a prosecutor’s comments are not improper vouching

unless the remarks “put the spotlight on the prosecutor—the prosecutor’s personal

beliefs, the prestige of her office, her power to enforce and implement the plea

agreement, her unique knowledge of the facts, etc.” Maj. Op. at 13. A remark need not

be so obvious to be improper. This circuit has clearly held that a prosecutor can express

a personal belief without making an “I” statement. See Hodge v. Hurley, 426 F.3d 368,

378 n.20 (6th Cir. 2005); United States v. Krebs, 788 F.2d 1166, 1176–77 (6th Cir.

1986). Stating that VanderKlok told the truth—not based on the evidence or the jury’s

ability to assess credibility, but simply based on the prosecutor’s own personal

speculation about how liars lie—is an improper expression of personal belief. The

prosecutor need not do anything special to shine a spotlight on the prestige of the office.

By standing in front of the jury as the representative of the United States government,

the prosecutor embodies the office, and the very act of expressing the prosecutor’s

“personal belief in the truthfulness of the witness’s testimony . . . plac[es] the prestige

of the office of the United States Attorney behind that witness.” United States v.

Emuegbunam, 268 F.3d 377, 404 (6th Cir. 2001). Unmoored from the evidence or

inferences based on the demeanor of the witness, this prosecutor’s remarks reflected

nothing more than his personal belief about the veracity of VanderKlok’s testimony.

The remarks, therefore, were improper.

No. 13-1344 United States v. Garcia Page 20

Nonetheless, I conclude that it was not plain error for the district court to fail to

strike the statements sua sponte. The evidence against Garcia was not strong, so

VanderKlok’s testimony that he saw objects fall from Garcia was significant. However,

the statement that VanderKlok told the truth was a single, isolated comment. The

prosecutor’s reminder to the jury that they were “to decide if what [they] heard on the

witness stand was true,” R. 75 (Trial Tr. at 316) (Page ID #670), and the district judge’s

instruction to the jury that it was the “sole judge of the credibility of witnesses,” id. at

307 (Page ID #661), mitigated the comment’s potential to mislead. United States v.

Martinez, 981 F.2d 867, 871 (6th Cir. 1992). Given all the circumstances, I conclude

that the district court did not plainly err in failing to strike sua sponte the prosecutorial

statements in the context of this case.