[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 16

- 10571 Non

- Argument Calendar

________________________ D.C. Docket No. 4:15

- cr - 00012

- CDL

- MSH

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus ARSENIO BRUNDIDGE, Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Middle District of Georgia

________________________ (September 13, 2017)

Before MARCUS , WILSON and BLACK , Circuit Judges. PER CURIAM:

Case: 16-10571 Date Filed: 09/13/2017 Page: 1 of 62 Arsenio Bru ndidge 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 a sserts : (1) the G overnment’s statement s 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 ] lt hough 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 B rundidge did not object to the G overnment’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 A CCA 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 Cour t or this Court. United States v. Rodriguez , 627 F.3d 1372, 1381 (11th Cir. 2010).

Case: 16-10571 Date Filed: 09/13/2017 Page: 2 of 63 evidence. ” United States v. Reeves , 742 F.3d 487, 505 (11th Cir. 2014). Thus, an issue raised by a defendant dur ing closing is fair game for the prosecution on rebuttal. Id. ; s ee also United States v. Bernal

- Benitez , 594 F.3d 1303, 131 5 (11th Cir. 2010) (noting it is not improper for a prosecutor to mention the defendant has the same subpoena powers as the governme nt, 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 defenda nt. 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 co mment was merely a request the jury closely examine the record for support of defense counsel’s attacks). Brundid ge does not establish the G overnment’s statements during closing argument s constitute plain error. The G overnment’s statement that Deputy Powell previously k new 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 G overnment was allowed to rebut defense counsel’s argument on this issue. See Reeves , 742 F.3d at 505 ( “[T] he

Case: 16-10571 Date Filed: 09/13/2017 Page: 3 of 64 prosecutor, as an advocate, is entitled to make a fair response to the arguments of defense counsel .” )

. The G overnment also did n ot shift the burden of proof in addressing defense counsel’s arguments on Deputy Powell’s credibility. T he G overnment 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 und ue prejudice by explaining the G overnment’s burden of proof in its jury instructions. See id. ( concluding the co urt, following closing argument, cured any undue prejudice in its instruction on the government’s burden of proof). Although the G overnment speculate d whether Brundidge stole the firearm, the court quickly provided a curativ e 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 rev iew, it is not plain the G overnment’s stat ement was incurable. See United States v. Rodriguez , 627 F.3d 1372, 1381 (11th Cir. 2010)

. Br undidge does not establish the cumulative effects of the alleged errors denied him a fair trial. See Lopez , 590 F.3d at 1258 (stating i n addressing a claim of cumulative error, we examine the trial as a whole to determine whether the

Case: 16-10571 Date Filed: 09/13/2017 Page: 4 of 65 defendant was afforded a fundamentally fair trial )

. Brundidge did not establish plain error from the G overnment’s closing arguments, and there can be no

cum ulative 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) (201 1)). In Gundy , we held the Georgia statute was divisible, and

a pplying the modified categorical approach, we determined the defendant’s burglary convictions qualified as ACCA predicate offenses because the indictments charged that he burgled one dw elling house and two business houses. Id. at 1168

- 69.
T he district court did not plainly err in counting Brundidge’s Georgia burglary conviction as an ACCA predicate offense. We have held t he 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

Case: 16-10571 Date Filed: 09/13/2017 Page: 5 of 66 cite a contrary holding, as required under plain error review. See Rodriguez , 627 F.3d at 1381. Moreover, a cour t 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 c ourts may consider undisputed fa cts 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. Case: 16-10571 Date Filed: 09/13/2017 Page: 6 of 6