United States v. Ayodele Abolarinwa

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-10199

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

AYODELE ELIJAH ABOLARINWA,

a.k.a. Ayodele Oladapo Abolarinwa,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Alabama

D.C. Docket No. 1:21-cr-00028-KD-4

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2 Opinion of the Court 23-10199

____________________

Before JILL PRYOR, NEWSOM, and BRANCH, Circuit Judges.

PER CURIAM:

Ayodele Elijah Abolarinwa appeals following his conviction

by a jury for conspiracy to commit wire fraud related to the filing

of fraudulent unemployment claims. Abolarinwa raises challenges

to the racial composition of the venire, the government’s use of

peremptory strikes, and the denial of his request to strike a

prospective juror for cause. After careful review, we affirm.

I. Background

A federal grand jury in the Southern District of Alabama

charged Abolarinwa, among other co-conspirators, with

conspiracy to commit wire fraud in violation of 18 U.S.C. § 1343 by

filing fraudulent unemployment claims using stolen personal

identifying information belonging to other individuals.

Initially, jury selection was set to begin on August 1, 2022,

but on that day, although counsel for both sides were present,

Abolarinwa, who was out on bond, was not present because of

transportation issues with the bus he took from his home in

Virginia to Alabama. So the district court dismissed the initial jury

venire and continued the case until September 2022.

Jury selection and voir dire began on September 6, 2022. The

forty-seven person venire was randomly generated by a computer

and composed of individuals who resided within the counties that

make up the Southern District of Alabama in accordance with the

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district’s jury plan. See Plan for the Qualification and Random Selection

of Grand and Petit Jurors (August 24, 2009), available at

https://perma.cc/LXR4-XG94. Thirty-nine of the venire

members were white, seven were black, and one was hispanic.

During voir dire, Abolarinwa, through counsel, stated that,

while he did not “know when would be the proper time” to raise

it, he wanted to “put an objection on the record [to] the make-up

of the jury,” because there were only seven black people in the

venire, one of whom “either [did not] show [up] or was excused.”

The district court overruled the objection, concluding that

Abolarinwa did not “meet [his] burden” and noting that, the “jury

was picked by a computer, and there [were] . . . four people excused

prior to coming today,” and the court was unaware of the excused

jurors’ races. Abolarinwa stated that one of those excused

individuals was black, but that he did not know why that person

was excused. The district court then noted that the “panel would

have been made up of the same people based on the computer’s

generation” and that the “computer ha[d] been approved by the

[Judicial Council for the] Eleventh Circuit.” 1

1 The Jury Selection and Service Act, 28 U.S.C. § 1861, “seeks to ensure that

potential grand and petit jurors are selected at random from a representative

cross section of the community and that all qualified citizens have the

opportunity to be considered for service.” United States v. Bearden, 659 F.2d

590, 593 (5th Cir. 1981). “The Act provides that each district court shall devise

a written plan, known as a ‘local plan,’ to achieve the twin objectives of

nondiscrimination and opportunity of service. The plan must be approved by

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4 Opinion of the Court 23-10199

At Abolarinwa’s request, the district court explained to the

venire that Abolarinwa was not a natural born citizen and that

“[s]ome of the acts alleged in [the] indictment [were] alleged to

have been committed by people who are not U.S. citizens.” The

district court then asked, as requested by Abolarinwa, whether any

members of the venire had “any opinions about immigration that

would affect [their] ability to be fair and impartial in this case to the

defendant who is not a natural-born citizen.” Juror No. 3 indicated

that he would. Upon further questioning in a sidebar conference,

Juror No. 3 explained that his answer “depends on whether or not

it’s legal or illegal immigration.” The district court explained that

Abolarinwa was “a permanent resident” so it was “legal”

immigration. Juror No. 3 stated: “Okay. That’s all that matters,

legal or illegal,” and he confirmed that he would not have any

problem being fair or impartial to Abolarinwa. As a follow-up

question, the government then asked Juror No. 3 if he would be

“able to put aside the fact that [potential witnesses were] here

illegally and listen to what they say in their testimony and evaluate

that separately from [his] beliefs.” Juror No. 3 stated “[p]robably

not.”

After questioning, Abolarinwa moved to strike Juror No. 3

for cause based on his “strong . . . opinions” concerning

the judicial council of the circuit in which the district is located.” Id. at 593–

94.

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immigrants. 2 The government objected, arguing that Juror No. 3

stated he could be fair, and although he expressed trouble with

“believing illegal immigrants,” the government thought it was

unlikely to call any illegal immigrants at trial. The district court

denied the strike for cause, noting that Juror No. 3 “seem[ed]

totally fine” with legal immigrants and Abolarinwa “is legal.”

Ultimately, Juror No. 3 was not seated on the jury.

The parties then addressed peremptory strikes. 3 As relevant

here, the government sought to strike Juror No. 21, a black male.

The following colloquy then occurred:

[Defense Counsel]: Your Honor, I object to No. 21.

We are down to two black people in the venire with

the numbers down to—for the original pool, strike

pool. No. 21, to my knowledge, didn’t answer any

questions, and, you know, I believe it would be a

Batson[4] issue. Like I said, we are down to two out of

the entire pool with the numbers that we have.

2 Abolarinwa also moved to strike Juror No. 44 for cause and the government

agreed. The government separately moved to excuse Juror No. 37 for cause,

and Abolarinwa had no objection.

3 It appears from the transcript that the peremptory strikes were not discussed

on the record unless there was an objection. However, the “strike lists” in the

record show that the government sought to use peremptory strikes against

Jurors No. 9 (white), 21 (black), and 28 (white). Abolarinwa sought to strike

Jurors No. 3, 4, 10, 15, 18, 20, 22, 30, 11, 8, and 33 (all of whom were white).

4 Batson v. Kentucky, 476 U.S. 79 (1986).

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6 Opinion of the Court 23-10199

THE COURT: Of the pool that you’ve been given.

[Defense Counsel]: Yes, ma’am

THE COURT: So –

[Government Counsel]: Two I want to strike.

THE COURT: I don’t believe you’ve made your case.

Would you like to state it for the record.

[Government Counsel]: 21 is not employed. He has

never been employed. He is not collecting

unemployment insurance.[ ] That’s the same reason

5

we struck No. 28,[ 6] who is also unemployed, not

collecting unemployment insurance. In addition,

with regard to 21, he has a previous arrest for forgery.

THE COURT: Those are race-neutral reasons. I find

that’s a race-neutral reason.

[Defense Counsel]: Thank you, Your Honor.

5 Juror No. 21 indicated on his questionnaire that he was age 45; black;

currently unemployed; not retired; that he had previously received or applied

for Social Security benefits; and that he had not been arrested or charged with

any prior criminal offenses. He left the section asking about his previous

occupations blank.

6 Juror No. 28 indicated on his questionnaire that he was age 28; white;

currently unemployed; not retired; had never applied for any of the specified

government benefits listed on the questionnaire; and had not been arrested or

charged with any prior offenses.

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The court then announced the jury, which consisted of two black

jurors (Jurors No. 7 and 23), one hispanic juror (Juror No. 5), nine

white jurors (Jurors No. 2, 6, 12, 13, 14, 16, 17, 24, 25), and an

alternate black juror, (Juror No. 34) and one alternate white juror,

(Juror No. 32).

Following the trial,7 the jury found Abolarinwa guilty, and

the district court sentenced him to 46 months’ imprisonment to be

followed by three years’ supervised release. Abolarinwa appealed.8

II. Discussion

Abolarinwa argues that (A) the racial composition of the

venire violated federal law; (B) the district court erred in overruling

his Batson objection to the government’s use of a peremptory strike

against Juror No. 21; and (C) the district court erred in denying his

7 Because all of Abolarinwa’s challenges to his conviction center on jury

selection, that underlying facts of the crime and evidence adduced at trial are

not relevant to this appeal and will not be discussed.

8 Abolarinwa dedicates a section of his brief to the timeliness of his appeal.

However, the government agrees that the appeal is timely. Therefore, any

challenge to the timeliness of the appeal is waived. See United States v. Lopez,

562 F.3d 1309, 1313 (11th Cir. 2009) (explaining that the deadline for filing a

notice of appeal in a criminal case is not jurisdictional but rather is a claims-

processing rule that may be waived by the government).

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request to strike Juror No. 3 for cause. We address each argument

in turn.

A. Racial composition of the venire

Abolarinwa contends that the total population of the five

counties from which the venire was comprised was 736,371, with

the black population for those counties totaling 201,174, or 27.3%.

But he asserts that black venire members made up less than 15% of

the venire, which equates to a 12.3% disparity and is statistical

evidence of unlawful racial disparity. Notably, he does not specify

in his counseled brief whether he is bringing his challenge to the

composition of the venire under the Sixth Amendment or the Fifth

Amendment to the Constitution or the Jury Selection and Service

Act, 28 U.S.C. § 1861—indeed he cites none of these authorities in

his brief. See United States v. Grisham, 63 F.3d 1074, 1077 (11th Cir.

1995) (“Challenges to the jury selection process may be based on

the fair cross-section requirement of the Sixth Amendment, the

equal protection component of the Fifth Amendment, or a

substantial failure to comply with the provisions of the [Jury

Selection and Service] Act.” (internal citations omitted)). Nor did

he specify in the district court under which of these authorities he

based his claim. We note that it is the defendant’s responsibility

to specify the basis for his objection, including on what authority

the objection is based, so that the district court can have the

opportunity in the first instance to address the alleged issue and

correct it to avoid wasting scare judicial resources. See United States

v. Straub, 508 F.3d 1003, 1011 (11th Cir. 2007) (“To preserve an issue

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for appeal, one must raise an objection that is sufficient to apprise

the trial court and the opposing party of the particular grounds

upon which appellate relief will later be sought. The objection

must be raised in such clear and simple language that the trial court

may not misunderstand it.” (quotations and internal citation

omitted)); United States v. Gallo-Chamorro, 48 F.3d 502, 507 (11th

Cir. 1995) (“To preserve an issue for appeal, a general objection or

an objection on other grounds will not suffice.”); United States v.

Kennedy, 548 F.2d 608, 612–14 (5th Cir. 1977) 9 (holding that

defendant forfeited his challenge under the Jury Selection Service

Act by failing to properly preserve the issue for appeal). Regardless,

even if Abolarinwa had properly preserved his challenge, he is not

entitled to relief on any of these grounds.

“The Sixth Amendment to the Constitution grants every

criminal defendant the right to a speedy and public trial, by an

impartial jury. The Supreme Court has interpreted this right to

mean, among other things, that a petit jury venire must represent

a fair cross section of its community.” United States v. Perez-

Hernandez, 672 F.2d 1380, 1384 (11th Cir. 1982) (quotations

omitted).

To establish a prima facie violation of the fair

cross-section requirement, a defendant must show:

9 See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc)

(holding that all decisions from the Fifth Circuit Court of Appeals issued prior

to the close of business on September 30, 1981, are binding precedent in the

Eleventh Circuit).

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(1) that the group alleged to be excluded is a

distinctive group in the community, (2) that

representation of the group in venires is not fair and

reasonable in relation to the number of such persons

in the community, and (3) that the

underrepresentation is due to systemic exclusion of

the group in the jury-selection process.

United States v. Davis, 854 F.3d 1276, 1295 (11th Cir. 2017)

(quotations omitted). 10 Importantly, when a defendant fails to

establish any one of these three elements, his claim under the Sixth

Amendment fails. United States v. Pepe, 747 F.2d 632, 649 (11th Cir.

1984).

Abolarinwa has failed to satisfy the third element which

requires him to show that the jury “selection procedure . . . is

susceptible of abuse or is not racially neutral . . . .” Castaneda v.

Partida, 430 U.S. 482, 494 (1977); Gibson v. Zant, 705 F.2d 1543, 1546

10 For purposes of the second element, we determine whether a given race

was fairly and reasonably represented in the venire by “compar[ing] the

difference between the percentage of [the relevant distinctive racial group] in

the population eligible for jury service and the percentage of [that group] in

the [jury] pool.” Davis, 854 F.3d at 1295. “[I]f the absolute disparity between

these two percentages is ten percent or less, the second element is not

satisfied.” Id. Here, the parties dispute the relevant statistics. Abolarinwa

argues that when the relevant black population is compared with the number

of black venire members, the disparity is 12.3 percent. Meanwhile, the

government argues that Abolarinwa’s statistical analysis is flawed and that the

disparity between the relevant population and the number of black venire

members was only 10%, meaning that Abolarinwa’s claim fails as a matter of

law. We need not resolve this dispute because, as we discuss further in this

opinion, Abolarinwa cannot satisfy the third element.

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(11th Cir. 1983) (same). There is no suggestion—either in his brief

or before the district court—that the Southern District of

Alabama’s Jury Plan, which uses a computer generated

randomized process to generate the venire, was not racially neutral

or was susceptible to abuse as a tool of discrimination. Rather,

Abolarinwa states simply that the alleged 12.3% racial disparity in

this case “cannot be waved off by pointing to a computer

program.” That assertion is not sufficient to meet Abolarinwa’s

burden of pointing to evidence tending to show that the “selection

procedure . . . is susceptible of abuse or is not racially neutral.”

Castaneda, 430 U.S. at 494; see also Berghuis v. Smith, 559 U.S. 314,

332–33 (2010) (emphasizing that the defendant bears the burden to

prove the third element as part of the prima facie case and generally

must point to more than statistical evidence tending to show a

disparity).

Abolarinwa’s claim fails under the Fifth Amendment for the

same reason.

To establish an equal protection violation in the jury

selection context, the defendant must show (1) that he

or she is a member of a group capable of being

singled out for discriminatory treatment; (2) that

members of this group were substantially

underrepresented on the venire; and (3) that the

venire was selected under a practice providing an

opportunity for discrimination.

Davis, 854 F.3d at 1295. Abolarinwa fails to identify anything about

the jury selection process that provides an opportunity for

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discrimination. See id. at 1296 (explaining that to satisfy the third

element, the defendant must identify something “about the jury

selection process that could be considered not racially neutral or

susceptible to abuse as a tool of discrimination” (quotations

omitted)).

Finally, Abolarinwa has forfeited any challenge under the

Jury Selection Service Act because he failed to comply with the

statutory procedural mechanisms for preserving such a claim. See

28 U.S.C. § 1867(d) (requiring the defendant to file a written

motion “containing a sworn statement of facts which, if true,

would constitute a substantial failure to comply with [the Act]”);

id. § 1867(e) (providing that “[t]he procedures prescribed by this

section shall be the exclusive means by which a person accused of

a Federal crime . . . may challenge any jury on the ground that such

jury was not selected in conformity with the provisions of this

title”); see also Kennedy, 548 F.2d at 612–14 (holding that, although

there was a violation of the Jury Selection Service Act, the

defendant was not entitled to relief because he forfeited the claim

by making only an oral objection and failing to comply with the

formal procedural requirements); United States v. Paradies, 98 F.3d

1266, 1278 (11th Cir. 1996) (“The Act requires that any motion filed

pursuant thereto be accompanied by a sworn statement of facts

which, if true, would constitute a substantial failure to comply with

the provisions of [the Act]. When that requirement is not satisfied,

the challenge to the selection process must fail . . . .” (alteration in

original) (internal citation and quotations omitted)).

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Accordingly, Abolarinwa is not entitled to relief under the

Sixth Amendment, the Fifth Amendment, or the Jury Selection and

Service Act.

B. Batson Challenge

Abolarinwa argues that the government’s use of

peremptory strikes disproportionately targeted the black venire

members in violation of Batson. And he maintains that the

government’s proffered race-neutral reasons were a pretext for

unlawful discrimination because there were “meaningful

differences” between the prospective black juror that the

government struck and the prospective white juror that the

government asserted it struck for similar reasons. 11

“The Supreme Court in Batson established the now-familiar

three-part inquiry for evaluating whether a peremptory strike was

motivated by racial or ethnic discrimination.” United States v.

Ochoa-Vasquez, 428 F.3d 1015, 1038 (11th Cir. 2005) (citing Batson,

476 U.S. at 79). First, “the district court must determine whether

the party challenging the peremptory strikes has established a

prima facie case of discrimination by establishing facts sufficient to

support an inference of racial discrimination.” Id. (quotations

omitted). If the challenger has established a prima facie case, “the

11 The government argues that Abolarinwa has forfeited many of the

arguments he makes on appeal in support of his Batson claim because they

extend beyond the legal grounds he presented to the district court. We

conclude that we need not address this issue because, even considering

Abolarinwa’s arguments, he is not entitled to relief on his Batson claim.

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burden then shifts at step two to the striker to articulate a race-

neutral explanation for the challenged strike.” Id. Finally, at step

three, the district court must determine whether the striker’s

“stated reasons were the actual reasons or instead were a pretext

for discrimination.” Flowers v. Mississippi, 139 S. Ct. 2228, 2241

(2019). Importantly, “the ultimate burden of persuasion rests with,

and never shifts from, the opponent of the strike.” Ochoa-Vasquez,

428 F.3d at 1038 (quotations omitted).

Step two under Batson merely requires an explanation for

the strike that is legitimate, reasonably specific, and facially

nondiscriminatory. United States v. Folk, 754 F.3d 905, 914 (11th Cir.

2014); United States v. Alston, 895 F.2d 1362, 1366 (11th Cir. 1990).

The district court must then at step three “assess the plausibility of

that reason in light of all evidence with a bearing on it.” Miller El v.

Dretke, 545 U.S. 231, 252 (2005); Rice v. Collins, 546 U.S. 333, 338

(2006) (“Third, the court must then determine whether the

defendant has carried his burden of proving purposeful

discrimination. This final step involves evaluating the

persuasiveness of the justification proffered by the prosecutor.”

(internal citation omitted) (quotations omitted)). In other words,

at the third step, “the decisive question will be whether counsel's

race-neutral explanation . . . should be believed. This is a pure issue

of fact, subject to review under a deferential standard . . . [and]

peculiarly within a trial judge’s province.” McNair v. Campbell, 416

F.3d 1291, 1310 (11th Cir. 2005) (alterations in original) (internal

citation omitted).

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“When reviewing the district court’s ruling on Batson

challenges, the court's determination is entitled to great deference,

and must be sustained unless it is clearly erroneous.” United States

v. Robertson, 736 F.3d 1317, 1324 (11th Cir. 2013) (quotations

omitted); see also Flowers, 139 S. Ct. at 2244 (emphasizing review of

the trial court’s factual determinations on a Batson claim is “highly

deferential” and the “trial court’s ruling on the issue of

discriminatory intent must be sustained unless it is clearly

erroneous” (quotations omitted)).

Here, it appears that the district court assumed that

Abolarinwa had made out a prima facie case of racial discrimination

at step one because upon Abolarinwa’s objection to the striking of

Juror No. 21, the court invited the government to state its reasons

for striking Juror No. 21. The government explained that it struck

Juror No. 21 because he was unemployed, had never had a job, and

was not collecting unemployment benefits, which were the same

reasons that the government struck a white juror (No. 28). The

government also asserted that Juror No. 21 had a prior arrest for

forgery. The district court then concluded that these were

legitimate, race-neutral reasons.

Abolarinwa has not shown that the district court’s decision

was clearly erroneous. Although he quarrels with the

government’s statement that Juror No. 21 never worked—

highlighting that the juror did not affirmatively state that he had

never worked, but instead simply left the prior employer section of

his questionnaire blank—it was not unreasonable for the

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government to conclude based on the blank prior employment

section that Juror No. 21 had not worked before. Nor was it clearly

erroneous for the district court to accept this reason as a legitimate

non-pretextual reason for striking Juror No. 21 given that the case

was about unemployment benefits.12 Robertson, 736 F.3d at 1324;

United States v. Walker, 490 F.3d 1282, 1291 (11th Cir. 2007) (“Once

past the prima facie step, the district court’s determination

concerning the actual motivation behind each challenged strike

12 With regard to the government’s second proffered reason for the strike, for

the first time on appeal, Abolarinwa points out that the “Government also

incorrectly stated that” Juror No. 21 had a prior criminal arrest, pointing to the

jury questionnaire where he indicated that he had never been arrested. To the

extent that Abolarinwa contends that this incorrect statement constitutes

evidence that the government’s proffered reasons were pretextual, we

disagree. First, we note that Abolarinwa never raised this objection in the

district court, which would have afforded the government an opportunity to

explain on what information it based this statement or otherwise correct the

record. Second, while the court may have erred in crediting the prior criminal

arrest record reason, ultimately there is nothing in the record suggesting that

the true reason for striking Juror No. 21 was race, especially given the validity

of the government’s unemployment-based reason. And there was no

evidence that the government exercised a pattern of peremptory strikes

against black venire members—it used only three of its six peremptory strikes

to strike two white jurors and one black juror. Furthermore, a total of three

black jurors were empaneled on the fourteen person jury, although one served

as an alternate. Thus, there is no evidence that the government unlawfully

struck jurors based on race. Hernandez v. New York, 500 U.S. 352, 359 (1991)

(explaining when evaluating a Batson claim that “[d]iscriminatory purpose . . .

implies more than intent as volition or intent as awareness of consequences.

It implies that the decisionmaker . . . selected . . . a particular course of action

at least in part because of, not merely in spite of, its adverse effects upon an

identifiable group.” (ellipses in original) (quotations omitted)).

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amounts to pure factfinding, and we will reverse only if the

decision is clearly erroneous.”).

C. Denial of request to strike Juror No. 3 for cause

Abolarinwa argues that the district court erred in denying

his request to strike Juror No. 3 for cause based on Juror No. 3’s

expressed views on immigration.

We review a district court’s decision whether to excuse a

prospective juror for cause for an abuse of discretion. 13 United

States v. Pendergrass, 995 F.3d 858, 871 (11th Cir. 2021). “[T]he

abuse of discretion standard allows a range of choice for the district

court, so long as that choice does not constitute a clear error of

judgment.” United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir.

2004) (en banc) (quotations omitted). “We have recognized that

there are few aspects of a jury trial where we would be less inclined

to disturb a trial judge’s exercise of discretion than in ruling on

13 The government argues that we should review this claim for plain error

because on appeal Abolarinwa asserts for the first time that Juror No. 3 should

have been struck for cause based on his views “towards illegal immigrants”

because it was unclear whether Juror No. 3 “would conclude that

[Abolarinwa’s] circumstances (marrying an American only for her to divorce

him a few years later) made [Abolarinwa] ‘illegal’ in [Juror No. 3’s] eyes.”

While we agree that Abolarinwa did not make this exact cause argument

below instead relying on a general concern with Juror No. 3’s “pretty strong”

opinions concerning illegal immigrants, we need not resolve whether plain

error should apply to his claim on appeal because he is not entitled to relief

under the traditional abuse of discretion standard.

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18 Opinion of the Court 23-10199

challenges for cause in empaneling of a jury.” Davis, 854 F.3d at

1296 (quotations omitted).

Here, following initial and rehabilitative questioning of

Juror No. 3, the district court declined to excuse him for cause

because he confirmed that he could be fair and impartial to

Abolarinwa. Based on Juror No. 3’s answers to the questioning and

affirmation that he could be fair and impartial we cannot say the

district court abused its discretion. Frazier, 387 F.3d at 1259

(recognizing that “the abuse of discretion standard allows for a

range of choice” and “there will be occasions in which we affirm

the district court even though we would have gone the other way

had it been our call” (quotations omitted)). Moreover, Abolarinwa

does not argue that he suffered any harm due to the denial of his

cause challenge—and he would be hard pressed to do so because

Juror No. 3 was not seated on his jury. Therefore, his claim must

fail. Davis, 854 F.3d at 1296 (concluding that the defendant’s claim

failed because, among other reasons, he failed to show “that he

suffered any harm due to the court’s denial of his for-cause

challenge).

III. Conclusion

For the above reasons, Abolarinwa is not entitled to relief on

any of his claims. Accordingly, we affirm his conviction.

AFFIRMED.