[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-10571

Non-Argument Calendar

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D.C. Docket No. 4:15-cr-00012-CDL-MSH-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

ARSENIO BRUNDIDGE, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Georgia

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(September 13, 2017)

Before MARCUS, WILSON and BLACK, Circuit Judges.

PER CURIAM: 

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Arsenio Brundidge appeals his convictions and total 235-month sentence for 

possession of a firearm by a convicted felon and possession of cocaine, violations 

of 18 U.S.C. §§ 922(g)(1) & 924(e)(1) and 21 U.S.C. § 844, respectively. 

Brundidge asserts: (1) the Government’s statements during closing arguments were 

improper and caused substantial prejudice; and (2) his prior conviction for Georgia 

burglary did not qualify as a predicate offense under the Armed Career Criminal 

Act (ACCA), 18 U.S.C. § 924(e). After review,1 we affirm. 

I. DISCUSSION

A. Prosecutorial misconduct

“In determining whether there was prosecutorial misconduct, we examine

whether the prosecutor’s remarks were (1) improper and (2) prejudicially affected 

the defendant’s substantial rights.” United States v. Azmat, 805 F.3d 1018, 1044

(11th Cir. 2015). “Prosecutorial misconduct must be considered in the context of 

the entire trial, along with any curative instruction.” United States v. Lopez, 590 

F.3d 1238, 1256 (11th Cir. 2009). 

“[A]lthough a prosecutor may not exceed the evidence presented at trial 

during her closing argument, she may state conclusions drawn from the trial 

 1 We review Brundidge’s claim of prosecutorial misconduct for plain error because 

Brundidge did not object to the Government’s closing arguments at trial. See United States v. 

Azmat, 805 F.3d 1018, 1045 (11th Cir. 2015). We review for plain error when a defendant fails 

to object to an ACCA enhancement before the district court. United States v. Jones, 743 F.3d 

826, 828 (11th Cir. 2014). An error is “plain” if the asserted error is clear from the plain 

meaning of a statute, constitutional provision, or from a holding of the Supreme Court or this 

Court. United States v. Rodriguez, 627 F.3d 1372, 1381 (11th Cir. 2010).

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evidence.” United States v. Reeves, 742 F.3d 487, 505 (11th Cir. 2014). Thus, an 

issue raised by a defendant during closing is fair game for the prosecution on 

rebuttal. Id.; see also United States v. Bernal-Benitez, 594 F.3d 1303, 1315 (11th 

Cir. 2010) (noting it is not improper for a prosecutor to mention the defendant has 

the same subpoena powers as the government, particularly when done in response 

to the prosecutor’s failure to call a specific witness). 

As part of its obligation to prove guilt beyond a reasonable doubt, the 

government may not make comments that would shift the burden of proof to the 

defendant. Bernal-Benitez, 594 F.3d at 1315. However, the prosecutor may 

comment on the failure of defense counsel, as opposed to the defendant, to counter 

or explain evidence. See Bernal-Benitez, 594 F.3d at 1315 (holding the 

prosecutor’s comment was merely a request the jury closely examine the record for 

support of defense counsel’s attacks). 

Brundidge does not establish the Government’s statements during closing 

arguments constitute plain error. The Government’s statement that Deputy Powell 

previously knew Brundidge was not calculated to mislead or inflame the jury’s 

passions. See Azmat, 805 F.3d at 1045 (“A prosecutor’s remarks, suggestions, 

insinuations, and assertions are improper when they are calculated to mislead or 

inflame the jury’s passions.”). Further, the Government was allowed to rebut 

defense counsel’s argument on this issue. See Reeves, 742 F.3d at 505 (“[T]he 

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prosecutor, as an advocate, is entitled to make a fair response to the arguments of 

defense counsel.”).

The Government also did not shift the burden of proof in addressing defense 

counsel’s arguments on Deputy Powell’s credibility. The Government was 

allowed to respond to defense counsel’s arguments on this issue. Id. Moreover, 

the Government may request the jury closely examine the evidence for support of 

defense counsel’s attacks. Bernal-Benitez, 594 F.3d at 1315. And the court cured

any undue prejudice by explaining the Government’s burden of proof in its jury 

instructions. See id. (concluding the court, following closing argument, cured any 

undue prejudice in its instruction on the government’s burden of proof).

Although the Government speculated whether Brundidge stole the firearm, 

the court quickly provided a curative instruction, stating the jury should not 

speculate about that issue because it was not an issue in the case. We presume the 

jury followed the district court’s curative instruction. Lopez, 590 F.3d at 1256.

Under a plain error standard of review, it is not plain the Government’s statement 

was incurable. See United States v. Rodriguez, 627 F.3d 1372, 1381 (11th Cir. 

2010).

Brundidge does not establish the cumulative effects of the alleged errors 

denied him a fair trial. See Lopez, 590 F.3d at 1258 (stating in addressing a claim 

of cumulative error, we examine the trial as a whole to determine whether the 

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defendant was afforded a fundamentally fair trial). Brundidge did not establish 

plain error from the Government’s closing arguments, and there can be no 

cumulative error where there are no individual errors. See Azmat, 805 F.3d at 

1045. Thus, his convictions are affirmed. 

B. ACCA

At the time of Brundidge’s conviction in 2010, Georgia’s burglary statute 

provided:

A person commits the offense of burglary when, without authority and 

with the intent to commit a felony or theft therein, he enters or 

remains within the dwelling house of another or any building, vehicle, 

railroad car, watercraft, or other such structure designed for use as the 

dwelling of another or enters or remains within any other building, 

railroad car, aircraft, or any room or any part thereof . . . .

United States v. Gundy, 842 F.3d 1156, 1164 (11th Cir. 2016) (citing Ga. Code 

Ann. § 16-7-1(a) (2011)). In Gundy, we held the Georgia statute was divisible, and 

applying the modified categorical approach, we determined the defendant’s 

burglary convictions qualified as ACCA predicate offenses because the 

indictments charged that he burgled one dwelling house and two business houses. 

Id. at 1168-69. 

The district court did not plainly err in counting Brundidge’s Georgia 

burglary conviction as an ACCA predicate offense. We have held the statute is 

divisible and the offense qualifies as an ACCA predicate offense under the 

modified categorical approach. Gundy, 842 F.3d at 1168-69. Brundidge does not 

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cite a contrary holding, as required under plain error review. See Rodriguez, 627 

F.3d at 1381. Moreover, a court may rely on undisputed facts contained in the 

presentence investigation report (PSI) in applying the modified categorical 

approach. See United States v. Ramirez-Flores, 743 F.3d 816, 820 & n.3 (11th 

Cir. 2014) (stating courts may consider undisputed facts contained in the PSI in 

applying the modified categorical approach). Thus, we affirm Brundidge’s total 

sentence.

II. CONCLUSION

Brundidge did not establish plain error from the Government’s closing 

arguments or in counting his prior conviction for burglary as a predicate offense 

under the ACCA. Thus, we affirm his convictions and total sentence. 

AFFIRMED.

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