[DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                            No. 09-15035                 ELEVENTH CIRCUIT
                                                             MARCH 3, 2011
                        Non-Argument Calendar
                                                              JOHN LEY
                      ________________________
                                                               CLERK

               D. C. Docket No. 09-00111-CR-ORL-19DAB

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

WALLACE ALLEN,
KAVON GRAVES,


                                                       Defendants-Appellants.


                      ________________________

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

                             (March 3, 2011)

Before TJOFLAT, CARNES and ANDERSON, Circuit Judges.

PER CURIAM:
        Kavon Graves appeals his conviction and 240-month sentence for forcibly

assaulting a correctional officer engaged in the performance of his official duties

with a deadly weapon or causing bodily injury, in violation of 18 U.S.C.

§ 111(a)(1) and (b). Wallace Allen appeals his convictions for forcibly assaulting

a correctional officer engaged in the performance of his official duties and

inflicting bodily injury, in violation of 18 U.S.C. § 111(a)(1) and (b).

      Graves raises several arguments on appeal, namely, that (1) the government

failed to produce material required under Brady v. Maryland, 

, 83 S.

Ct. 1194, 

(1963), related to cigarette smuggling at Coleman

Federal Penitentiary (“Coleman”); (2) the district court should have reviewed the

contraband-smuggling materials he requested in camera to determine whether any

exculpatory or impeachment evidence that should have been disclosed to him

existed; (3) the court abused its discretion in excluding expert testimony regarding

contraband smuggling at Coleman; (4) the court improperly allowed the

government to engage in “burden shifting” in its closing argument; (5) the court

violated the Fifth and Sixth Amendments by calculating his base offense level

using U.S.S.G. § 2A2.2, which corresponds with aggravated assault on a federal

officer, instead of under U.S.S.G. § 2A2.4, the guideline for obstructing or

impeding an officer, based on facts not proved to the jury beyond a reasonable



                                           2
doubt; (6) the court erroneously determined that he was a career offender by

relying on a predicate offense that occurred when Graves was only seventeen years

old; and (7) by considering a juvenile conviction in determining his career-offender

status, the court violated his Fifth and Eighth Amendment rights. Both Graves and

Allen argue on appeal that (8) the district court erred in excluding Graves’s

confession to an FBI agent, and Allen asserts further that the exclusion of Graves’s

statements violated his rights to due process and a fair trial.

                                            I.

      We review allegations of a Brady violation de novo. United States v. Jones,

, 1266 (11th Cir. 2010). Under Brady, “the prosecution is required

to disclose to the defense evidence favorable to the accused if the evidence is

material to guilt or punishment.” United States v. Starrett, 

, 1555

(11th Cir. 1995) (per curiam). To obtain a new trial based on a Brady violation,

      the defendant must show that (1) the government possessed favorable
      evidence to the defendant; (2) the defendant does not possess the
      evidence and could not obtain the evidence with any reasonable
      diligence; (3) the prosecution suppressed the favorable evidence; and
      (4) had the evidence been disclosed to the defendant, there is a
      reasonable probability that the outcome would have been different.

United States v. Vallejo, 

, 1164 (11th Cir. 2002). “A ‘reasonable

probability’ is a probability sufficient to undermine confidence in the outcome.”

United States v. Bagley, 

, 682, 

, 3383, 

481 (1985). “The question is not whether the defendant would more likely than

not have received a different verdict with the [concealed] evidence, but whether in

its absence he received a fair trial, understood as a trial resulting in a verdict

worthy of confidence.” Kyles v. Whitley, 

, 434, 

,

1566, 

(1995). The defendant does not have to demonstrate by a

preponderance that disclosure of the suppressed evidence would have resulted in

an acquittal. 

115 S. Ct. at 1566.

       The “Brady rule is not an evidentiary rule that grants broad discovery

powers to a defendant.” United States v. Quinn, 

, 1421–22 (11th Cir.

1997) (holding that the government was not required to disclose the contents of

personnel files of testifying officers or submit them for in camera review simply

based on the defendant’s unsupported contention that they might contain

information of significance to his case); see also Weatherford v. Bursey, 

, 559, 

, 846, 

(1977) (“There is no general

constitutional right to discovery in a criminal case, and Brady did not create one.”)

       Graves offered no evidence that the government possessed favorable

evidence regarding cigarette smuggling at Coleman by the victims in this case,

Officer Rocky Velazco and Officer Christopher Wynter. When the district court

questioned the Government as to potential Brady material, the Government



                                            4
explained that it had no record of either victim being investigated for any reason,

cigarette smuggling or otherwise. Furthermore, even if such favorable evidence

existed, Graves has not demonstrated that there would have been a different

outcome at trial had the information been produced. Therefore, there was no

Brady violation.

                                           II.

      As noted above, we review allegations of a Brady violation de novo. 

. The prosecutor may mark potential Brady material as a court

exhibit and submit it to the court for an in camera inspection if its qualification as

Brady material is debatable. United States v. Jordan, 

, 1252 (11th

Cir. 2003).

       The court denied Graves’s request for an in camera review of the entire

investigatory file related to cigarette smuggling at Coleman because it was not

proper Brady material, was irrelevant, and would require excessive time and

resources to review. Thus, the district court did not improperly fail to perform an

in camera review.

                                          III.

      We review a district court’s decision with respect to the admissibility and

reliability of expert testimony for an abuse of discretion and can only reverse a



                                           5
district court’s ruling if it is manifestly erroneous. United States v. Frazier, 

, 1258 (11th Cir. 2004) (en banc).

      Pursuant to Federal Rule of Evidence 702:

      If scientific, technical, or other specialized knowledge will assist the
      trier of fact to understand the evidence or to determine a fact in issue,
      a witness qualified as an expert by knowledge, skill, experience,
      training, or education, may testify thereto in the form of an opinion or
      otherwise, if (1) the testimony is based upon sufficient facts or data,
      (2) the testimony is the product of reliable principles and methods, and
      (3) the witness has applied the principles and methods reliably to the
      facts of the case.

Fed. R. Evid. 702. The proponent of the expert testimony carries the burden of

showing reliability under Rule 702 by a preponderance of the evidence. See

& n.6 (Tjoflat, J., concurring) (citing Daubert v. Merrell

Dow Pharms., Inc., 

, 592–93 & n.10, 

, 2796 & n.10,

). Thus, the proponent must demonstrate that the witness is

qualified to testify competently, that his opinions are based on sound methodology,

and that his testimony will be helpful to the trier of fact. See 

(majority

opinion).

      The defense proferred Special Agent Dulay as an expert witness. The district

court ruled that Dulay could not testify as an expert because he merely had general

knowledge of contraband in Coleman, which was not relevant to the facts of this

case. Agent Dulay testified that not only was he not aware of either Officer

                                            6
Velazco or Officer Wynter having any involvement in the smuggling of

contraband, but further than he did not know who either officer was. The court

accordingly expressed skepticism that any of Officer Dulay’s proffered testimony

would be relevant.

      Further, the court expressed doubts as to whether Agent Dulay was qualified

to testify as an expert because he had been working for the Office of the Inspector

General for less than five years, his position required only a bachelor’s degree, and

he testified that he did not undergo any specialized training to perform his duties.

Based on Agent Dulay’s experience, training, and education, the district court did

not err in concluding that Dulay was not qualified to render an opinion regarding

smuggling at Coleman. Thus, considering the relevance of Dulay’s proffered

testimony, and his qualifications, the court did not abuse its discretion in excluding

his testimony.

                                          IV.

      Graves argues that the district court allowed the prosecutor to shift the

burden of proof in closing argument by stating that the Government was not

required to prove the cause of the fight. In general, it is prosecutorial misconduct

for a prosecutor to make comments that prejudicially shift the burden of proof to

the defendant. United States v. Simon, 

, 1086 (11th Cir. 1992).



                                           7
“Such prosecutorial misconduct, if so pronounced and persistent that it permeates

the entire atmosphere of the trial, requires reversal.” 

internal

quotations omitted). Consequently, “prosecutors must refrain from making

burden-shifting arguments which suggest that the defendant has an obligation to

produce any evidence or to prove innocence.” 

if a prosecutor

makes statements that could have resulted in shifting the burden of proof to the

defendant, the errors can be cured by a court’s instructions regarding the burden of

proof, as the jury is presumed to follow jury instructions. 

      The government’s statement during its closing argument that it was not

required to prove the reason for the attack was legally correct. The court instructed

the jury that the government had the burden to prove Graves guilty beyond a

reasonable doubt, that Graves was presumed innocent, and that Graves was not

required to prove his innocence or produce any evidence at all. The district court

did not err in allowing the government to argue as it did.

                                           V.

      Graves argues that the district court incorrectly calculated his base level

offense by using U.S.S.G. § 2A2.2 for “Aggravated Assault,” rather than U.S.S.G.

§ 2A2.4 for “Obstructing or Impeding Officers.” Section 2A2.4, which applies to

offenses that involve “Obstructing or Impeding Officers,” contains a cross



                                            8
reference instructing the sentencing court to apply § 2A2.2, rather than § 2A2.4, “if

the conduct constituted an aggravated assault.” 

The definition of

aggravated assault as provided in the application notes is “a felonious assault that

involved (A) a dangerous weapon with intent to cause bodily injury (i.e., not

merely to frighten) with that weapon; (B) serious bodily injury; or (C) an intent to

commit another felony.” 

cmt. n.1. Section 2A2.2’s base offense level

is 14, with incremental increases for specific offense characteristics, including the

use of a weapon and the infliction of bodily injury, and for convictions under 18

U.S.C. § 111(b) or § 115. 

(a), (b).

      The district court did not err in calculating Graves’s sentence under § 2A2.2.

The indictment charged that Graves “did use a deadly and dangerous weapon, and

did inflict bodily injury,” in violation of 18 U.S.C. § 111(a)(1) and (b). The jury

found Graves guilty “of the offense of Forcibly Assaulting a Federal Officer With

Use of a Deadly Weapon or Inflicting Bodily Injury in violation of 18 U.S.C.

§ 111(b) as charged in Count One of the Indictment.” Graves stabbed Officer

Velazco seventeen times; this conduct constitutes aggravated assault, rather than

merely obstructing or impeding an officer. Thus, the district court properly

sentenced Graves under § 2A2.2 for aggravated assault.

                                          VI.



                                           9
      We review de novo the district court’s application and interpretation of the

Sentencing Guidelines and review factual findings for clear error. United States v.

Wilks, 

, 1242 (11th Cir. 2006).

      Pursuant to § 4B1.1(a):

      A defendant is a career offender if (1) the defendant was at least
      eighteen years old at the time the defendant committed the instant
      offense of conviction; (2) the instant offense of conviction is a felony
      that is either a crime of violence or a controlled substance offense; and
      (3) the defendant has at least two prior felony convictions of either a
      crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a). “Prior felony conviction” is defined as:

      [A] prior adult federal or state conviction for an offense punishable by
      death or imprisonment for a term exceeding one year, regardless of
      whether such offense is specifically designated as a felony and
      regardless of the actual sentence imposed. A conviction for an
      offense committed at age eighteen or older is an adult conviction. A
      conviction for an offense committed prior to age eighteen is an adult
      conviction if it is classified as an adult conviction under the laws of
      the jurisdiction in which the defendant was convicted (e.g., a federal
      conviction for an offense committed prior to the defendant’s
      eighteenth birthday is an adult conviction if the defendant was
      expressly proceeded against as an adult).

cmt. n.1. To determine whether a defendant was convicted as an adult,

we consider “the nature of the proceedings, the sentences received, and the actual

time served.” 

(citation omitted). We have held that a

conviction is considered an “adult conviction” if the defendant was convicted as an

adult and was sentenced to a term of imprisonment exceeding one year and one

                                         10
month. United States v. Pinion, 

, 943–44 (11th Cir. 1993) (citing

U.S.S.G. § 4A1.2, cmt. n.7 (1991)).

      Graves argues that the district court erroneously sentenced him as a career

offender because one of the predicate offenses was a felony conviction that

occurred when he was seventeen years old and resulted in his commitment to a

youth program. Graves was sentenced to a lengthy prison term in an adult court

for this offense. He initially served six years and, after violating probation while

on supervised release, the rest of his twenty-year suspended sentence was imposed.

The district court did not clearly err in determining that the 1997 conviction

qualified as an adult conviction for purposes of a career-offender classification

pursuant to § 4B1.1.

                                         VII.

      Graves argues on appeal that the district court violated his Fifth and Eighth

Amendment rights by considering a juvenile conviction in determining his

career-offender status. Graves contends that under the precedent of Roper v.

Simmons, 

, 

, 

(2005), which prohibited

the execution of juvenile offenders, using his juvenile conviction to impose a

career-offender sentence violated evolving standards of decency.

      Our precedent forecloses Graves’s argument that Supreme Court precedent



                                          11
from Roper precludes the use of juvenile convictions in imposing career offender

status on a defendant. See 

(holding that, after Roper,

juvenile convictions can qualify as predicate offenses for sentence enhancement

purposes). Accordingly, the district court did not err in determining Graves’s

career-offender status.

                                          VIII.

      Graves concedes that his statements to FBI Agent Raby were hearsay but

argues that they should have been admitted under Federal Rule of Evidence 803(3),

the then-existing state of mind exception, Rule 804(b)(3), as a statement against

interest, or Rule 106, the rule of completeness. Allen’s only argument on appeal is

that Graves’s statements should have been admitted under Rule 804(b)(3). On

appeal, Allen argues that the district court’s ruling that the statement was

inadmissible denied him a fair trial.

      We review a district court’s rulings on the admissibility of hearsay testimony

for abuse of discretion. See United States v. Brown, 

, 1359 (11th

Cir. 2006). However, if the defendant fails to raise a constitutional challenge to an

evidentiary ruling in the district court, we will review for plain error only. United

States v. Turner, 

, 1275 (11th Cir. 2007). “To demonstrate plain

error, a defendant must show that there is (1) error, (2) that is plain and (3) that



                                           12
affects substantial rights.” 

This Court may exercise its discretion to

notice a forfeited error only if the first three elements are met, and if “the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” 

a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Fed. R. Evid. 801(c). As an exception to the hearsay rule, Rule 803(3)

permits “[a] statement of the declarant’s then existing state of mind, emotion,

sensation, or physical condition (such as intent, plan, motive, design, mental

feeling, pain, and bodily health), but not including a statement of memory or belief

to prove the fact remembered or believed.” We have held that the “state-of-mind

exception does not permit the witness to relate any of the declarant’s statements as

to why he held the particular state of mind, or what he might have believed that

would have induced the state of mind.” United States v. Duran, 

,

1297 (11th Cir.), cert. denied, 

(2010). To be admissible under

803(3), the statement must also have been made at the time of the incident. United

States v. De La Cruz Suarez, 

, 1216 (11th Cir.), cert. denied, 

(2010).

      Though Graves’s statement does purport to explain his state of mind and



                                            13
motive at the time of the incident, it was made after the fact and, thus, does not

qualify under Rule 803(3). The district court did not abuse its discretion in

excluding the confession on this ground.

      “To be admissible under Rule 804(b)(3), a statement must satisfy three

elements: (1) the declarant [must be] unavailable; (2) the statement so far tends to

subject the declarant to criminal liability that a reasonable person in his position

would not have made the statement unless he believed it to be true; and (3) the

statement is corroborated by circumstances clearly indicating its trustworthiness.”

United States v. Westry, 

, 1214 (11th Cir. 2008) (per curiam)

(brackets in original) (quotation and citation omitted). “While a determination of

whether a statement is against the declarant’s penal interest is purely a question of

law subject to de novo review, . . . consideration of a statement’s trustworthiness

requires a review of findings of fact and a review of the trial court’s application of

a legal standard to the facts.” 

(internal citation omitted).

      In Williamson v. United States, 

, 600–604, 

,

2435–37, 

(1994), the Supreme Court held that collateral

statements contained within a broader inculpatory confession are not admissible

under Rule 804(b)(3). The Court was particularly concerned with the reliability

and admissibility of statements implicating codefendants within a broader



                                           14
self-inculpatory confession. 

instructed that to determine whether a

statement is self-inculpatory, it must be viewed in context and in light of all the

surrounding circumstances. Id.; see also United States v. U.S. Infrastructure, Inc.,

, 1208–09 (11th Cir. 2009) (holding that a statement made by a

county official regarding bribes was inculpatory because it “did not seek to lessen

blame as to his crime by spreading blame to others”); United States v. Thomas, 

, 288 (5th Cir. 1978) (“We do not read Rule 804(b)(3) to be limited to

direct confessions of guilt. Rather, by referring to statements that ‘tend’ to subject

the declarant to criminal liability, the Rule encompasses disserving statements by a

declarant that would have probative value in a trial against the declarant.”).

      “[I]n determining trustworthiness, the [district] court should determine what

the possibility was that the declarant fabricated the statement. In other words, it

must be unlikely, judging from the circumstances, that the statement was

fabricated.” United States v. Jernigan, 

, 1288 (11th Cir. 2003)

(brackets in original) (citation omitted). Furthermore, we are “entitled to consider

the fact that [the person proffering the testimony is] a prison inmate in determining

whether his testimony would be trustworthy.” 

original) (citation

omitted).

      Graves exercised his Fifth Amendment right not to testify and was thus



                                           15
unavailable for the purposes of Rule 804. Fed. R. Evid. 804(a)(1). The portions of

Graves’s statement in which he admits to stabbing Velazco multiple times and

admits full responsibility for his actions are self-inculpatory. However, Graves

also made a lengthy and broad confession to Agent Raby, detailing a cigarette deal

with Velazco and blaming the fight on the failed cigarette transaction, which was

not inculpatory. Instead, it sought to deflect Graves’s culpability for the attack by

claiming it occurred due to Velazco’s own illegal conduct and create a defense that

Velazco wasn’t acting in his official capacity at the time of the attack. Further, the

district court found that the cigarette portion of the testimony did not have

corroborating circumstances indicating trustworthiness. The district court found

that this portion of the testimony was likely fabricated based upon the lack of

evidence in the record to support Graves’s claim that he was engaged in a cigarette

transaction. The district court did not abuse its discretion, as to Defendant Graves,

or plainly err, as to Defendant Allen, in refusing to admit the confession under

Rule 804(b)(3).

      The “rule of completeness,” Fed. R. Evid. 106, states that “[w]hen a writing

or recorded statement or part thereof is introduced by a party, an adverse party may

require the introduction at that time of any other part or any other writing or

recorded statement which ought in fairness to be considered contemporaneously



                                          16
with it.” Rule 106 only applies when a written document is admitted into evidence,

or when a document is used in such a way that is “tantamount” to introduction of

the document itself. United States v. Ramirez-Perez, 

, 1113 (11th

Cir. 1999).

      The testimony at trial regarding statements made by Graves after the fight

were all verbal statements made contemporaneously as the officers struggled to

control Graves during the incident. The officers testified as to statements they

personally heard Graves make. The government did not introduce any written or

recorded statement and, thus, by its plain language, Rule 106 does not apply.

      As Graves’s confession does not qualify as an exception to the hearsay rule

under Rules 803(3), 804(b)(3), or 106, the district court did not abuse its discretion

in excluding his statement as inadmissible hearsay. Furthermore, this exclusion

did not violate Allen’s right to a fair trial because he failed to show that the

exclusion was plain error that violated his substantial rights.

      Upon a thorough review of the entire record on appeal, and after

consideration of the parties’ briefs, we affirm.

      AFFIRMED.




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