IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-20863

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.

United States Court of Appeals

Fifth Circuit

F I L E D

November 23, 2010

Lyle W. Cayce

Clerk

 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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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 crossexamine Ford about his post-Miranda silence in violation of Doyle v. Ohio,

426 U.S. 610 (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, 68 F.3d 860, 867 (5th Cir. 1995). Accordingly, the harmless

error standard applies. United States v. Sumlin, 489 F.3d 683, 688 (5th Cir.

2007); United States v. Rodriguez, 260 F.3d 416, 422 (5th Cir. 2001) (noting that

harmless error doctrine applies to so-called Doyle violations). As a result,

1

The leading case in this Circuit analyzing the harmless error test as applied to Doyle 1

violations is Chapman v. United States, 547 F.2d 1240, 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, 43 F.3d 117, 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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reversal is appropriate only if any of the claimed evidentiary errors affected

Ford’s substantial rights. Sumlin, 489 F.3d at 688. 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. Id. Here, after 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, 38 F.3d 761, 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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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, 402 F.3d 511, 519 (5th Cir. 2005). The court’s ultimate findings

of fact are reviewed for clear error, United States v. Mauskar, 557 F.3d 219, 232

(5th Cir. 2009), while the denial of an evidentiary sentencing hearing is reviewed

for abuse of discretion, United States v. Henderson, 19 F.3d 917, 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, 528 F.3d 423, 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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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 crossexamination 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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