Case: 09-20863 Document: 00511302981 Page: 1 Date Filed: 11/23/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         November 23, 2010

                                       No. 09-20863                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

DEVLEN H. FORD,

                                                   Defendant - Appellant




                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CR-242-1


Before JONES, Chief Judge, and JOLLY and GARZA, Circuit Judges.
PER CURIAM:*
       Devlen Ford was convicted following a jury trial with being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court
sentenced him to 120 months imprisonment, followed by three years of
supervised released. Ford now appeals. We affirm.




       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 09-20863

                                        I.
      In early February of 2009, Officer M.R. Franklin, a police officer in Harris
County, received a tip that there was a black male receiving stolen merchandise
at a particular house in the area he was patrolling. Two detectives–Officers
Thomas and Middleton–were dispatched to help investigate. The three officers
went to the identified house, where they saw Devlen Ford pulling into the
driveway.
      According to Officer Middleton, the officers introduced themselves to Ford
and explained they were investigating a burglary. Officer Thomas asked Ford
for consent to search his house for the stolen property. Ford gave consent in
written form. Officer Middleton testified that once in the house, Ford told the
officers that the day before he had traded marijuana for some items that a
person named Stephen had brought over, and that those items were in his
bedroom, underneath his bed. The officers looked under the bed and found a
laptop, an X-Box 360, and the pistol that is the subject of this case. The officers
also claimed to have found a box of marijuana as they were leaving the room.
According to Officer Thomas, Ford admitted to them that the items under the
bed were those for which he had traded marijuana the day before. Ford was
arrested at the scene.
      Ford’s testimony differed considerably from that of the officers. Ford
claims that he had met Stephen the day before and hired him to perform yard
work at Ford’s home. When Stephen arrived at Ford’s home to work, he carried
with him a bag. According to Ford, Stephen later went to the store for a drink,
leaving the bag on the driveway. Ford claims that since Stephen never returned
for it, he brought the abandoned bag into his home for safekeeping. When police
arrived the next day, Ford consented to the search of his home and showed them
the bag left by Stephen. As they were taking items out of it, Ford claims he
noticed something heavy in the pocket of a jacket that was in the bag. The police

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                                       No. 09-20863

found a pistol in the jacket pocket, a pistol of which Ford testified he had been
unaware.
       Ford was later convicted after a jury trial with being a felon in possession
of a firearm and sentenced to 120 months imprisonment. Ford now appeals.
                                             II.
       Ford raises five issues on appeal. He contends that the district court erred
by (1) allowing the Government to cross-examine Ford about inadmissible prior
convictions and arrests; (2) permitting an ATF agent to testify that a firearm
possessed by Ford in a prior case was stolen, testimony which Ford argues was
inadmissible under Federal Rule of Evidence 404(b) and admitted in violation
of the Confrontation Clause; and (3) permitting the Government to cross-
examine Ford about his post-Miranda silence in violation of Doyle v. Ohio,

(1976). Ford also argues that (4) his conviction should be reversed
because of improper comments made by the Government in its closing argument
and that (5) the district court wrongfully imposed a two-level sentencing
enhancement for a stolen firearm. We find no reversible error.
                                              A.
       The first three issues raised by Ford relate to evidentiary rulings of the
district court. We review evidentiary rulings for abuse of discretion. United
States v. Parks, 

, 867 (5th Cir. 1995). Accordingly, the harmless
error standard applies. United States v. Sumlin, 

, 688 (5th Cir.
2007); United States v. Rodriguez, 

, 422 (5th Cir. 2001) (noting that
harmless error doctrine applies to so-called Doyle violations).1 As a result,


       1
         The leading case in this Circuit analyzing the harmless error test as applied to Doyle
violations is Chapman v. United States, 

, 1247-48 (5th Cir. 1977). Many cases
cannot be resolved solely by reference to the Chapman categories, however. In such instances,
“we apply a case-by-case approach using the Chapman categories as guidelines for assessing
the prejudice to the defendant in the particular context, including the strength of the
evidence.” United States v. Rodriguez, 

, 121-22 (5th Cir. 1995). Here, in light of
the evidence and for the reasons stated elsewhere, we find no prejudice requiring reversal.

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                                  No. 09-20863

reversal is appropriate only if any of the claimed evidentiary errors affected
Ford’s substantial rights. 

. Because we find that any
error was harmless, we need not decide whether the district court erred in these
evidentiary rulings.
      This court has stated that an error affects substantial rights if there is a
reasonable probability that the improperly admitted evidence contributed to the
conviction. 

considering the parties’ briefs and the evidence
against Ford, we are not persuaded there is a reasonable probability the jury
would not have convicted Ford absent the challenged testimony. Both parties
agreed this case turned on whose testimony the jury credited–the officers’ or
Ford’s. Ford’s alibi–that a man named “Stephen” inexplicably left a bag of very
expensive items at his home, the contents of which were unknown to Ford–was,
to put it charitably, far less plausible than the officers’ story. The jury had
sufficient reason to credit the officers’ testimony over Ford’s, even without
evidentiary errors. Thus, we find no reversible error.
                                        B.
      Ford next argues that his conviction should be reversed because of
improper comments made in the Government’s closing argument. Assuming,
without deciding, that the comments were inappropriate, reversal would be
appropriate only if the remarks cast serious doubt on the correctness of the jury's
verdict. United States v. Fierro, 

, 771 (5th Cir. 1994). For the same
reasons stated above, we find that any inappropriate comments made by the
Government did not cast serious doubt on the correctness of the jury’s verdict.
Thus, we find no reversible error here.
                                        C.
      Ford’s final argument on appeal is that the district court abused its
discretion by imposing a two-level enhancement for a stolen firearm pursuant
to U.S.S.G. § 2K2.1(b)(4) based on an unreliable affidavit, which stated that the

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                                  No. 09-20863

gun at issue was stolen. Ford argues that it was “highly unusual” that the
affiant claimed to be the victim of a burglary in 2006, but did not report the
crime until questioned by the ATF during the investigation in this case. Ford
also contends that the district court erred by denying his request for an
evidentiary hearing to determine whether the gun was stolen. We find these
challenges to be without merit.
      Sentencing judges are entitled to find, by a preponderance of the evidence,
all facts relevant to determination of a Guidelines sentencing range. United
States v. Mares, 

, 519 (5th Cir. 2005). The court’s ultimate findings
of fact are reviewed for clear error, United States v. Mauskar, 

, 232
(5th Cir. 2009), while the denial of an evidentiary sentencing hearing is reviewed
for abuse of discretion, United States v. Henderson, 

, 927 (5th Cir.
1994).
      This court has stated that defendant bears the burden of showing that
information in the PSR relied on by the district court is materially untrue.
United States v. Smith, 

, 425 (5th Cir. 2008). Ford has failed to
establish anything approaching this threshold.       He provides no reasons to
suspect the affiant in question was lying, nor does he even assert what evidence
or additional facts he would adduce at an evidentiary hearing to support his
claim that the affidavit was incorrect. Simply claiming that it was “highly
unusual” for the affiant not to report to the police that her gun had been stolen
is not sufficient to show that the affidavit was not true. For these reasons, the
district court did not err in relying on the affidavit, nor abuse its discretion in
denying an evidentiary hearing.
      We AFFIRM.




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                                 No. 09-20863

E. GRADY JOLLY, Circuit Judge, specially concurring:
      I concur in the majority’s opinion in full. I write separately to take note
that underlying the key issues in today’s case is the rather crass manner in
which the prosecution was, in part, conducted. As the record before us makes
clear, the Assistant United States Attorney engaged in conduct that eschewed
professional training, which put in jeopardy an otherwise clear conviction. He
extensively cross-examined Ford about prior convictions and arrests on the ruse
that defense counsel had opened the door to such questioning. He put on the
stand an ATF agent who testified, based on a National Crime Information
Center report, that a firearm possessed by Ford in a previous case was stolen,
which had little purpose but to inflame the jury. The Government now concedes
on appeal that this testimony was hearsay, and it does not dispute that
admission of this testimony violated Ford’s rights under the Confrontation
Clause.
      Beyond    these    missteps,    the    prosecutor    posed     a   lengthy
question—amounting to little more than invective—with respect to Ford
remaining silent after he had invoked his Miranda rights.          During cross-
examination the prosecutor attributed to him a marijuana or “dope-dealing
business,” an accusation bearing no relevance to the crime of possession of a
firearm by a felon. Indeed, during the Government’s summation, the AUSA
claimed that “all [Ford] does is hang around with marijuana, and that is what
he is.”
      The prosecutor is fortunate that his general resort to naked and raw
emotionalism did not cost him the case; any evidentiary errors are ultimately
insufficient to warrant a reversal of Ford’s conviction. Notwithstanding this
result, the prosecutor needs reminding that we must demand a higher degree of
professional prosecution than we have seen here.



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