### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-50605 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. BONGANI CHARLES CALHOUN, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 5:08-CR-351-2

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges. PER CURIAM: * Bongani Charles Calhoun appeals his convictions and s entences for conspiracy to possess with intent to distribute five kilograms or more of cocaine, attempt to possess with intent to d i s t ribute five kilograms or more of cocaine, and possession of a firearm in furtherance of a drug trafficking crime. Calhoun first argues that he i s e n t i t l e d to a new trial because the prosecutor asked a hi ghly p r e

j u dici al an d r aci ally inf l ammatory question while cro s s - e x a m inin g hi m and raised the sentiment again during the Government’s closing argument. The U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D June 7, 201 2 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-50605 Document: 00511879606 Page: 1 Date Filed: 06/07/2012No. 11-50605

questi o n i n dispute was, “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you—a light bulb doesn’t go off in your head and say, This is a drug deal?” Calhoun responded, “No, sir.” Plain error review applies to this issu e , as Calhoun did not object to the prosecutor’s question or the prosec u t o r ’ s explanation of the question in his closing argument. See United States v. Gracia , 522 F.3d 597, 599-600 (5th Cir. 2008). To show plain error, the appellant must show a forfei t ed error that is clear or obvious and that affects his substantial rights. Puckett v. United States , 556 U.S. 129, 135 (2009). In the context of improper prosecutorial remarks, the substantial rights prong “sets a high bar,” with the determinative question being “whether the prosecutor’s remarks cast serious doubt on the correctness of the jury’s verdict.” United States v. Morin , 627 F.3d 985, 1000 (5th Cir. 2010), cert. denied , 131 S. Ct. 2126 (2011) (internal quotation marks and citation omitted). In answering that question, we consider “(1) the magnitude of t h e p rejudicial effect of the prosecutor’s remarks, (2) the efficacy of any cautionary instruction by the judge, a n d (3) the strength of the evidence supporting the conviction.” United States v. Thompson , 482 F.3d 781, 785 (5th Cir. 2007) (internal quotation marks and citation omitted). If Calhoun meets his burden under the first three prongs of the plain error standard, we have the discretion to correct the error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. See Gracia , 522 F.3d at 600. Calhoun has not satisfied his burden. First, the improper racial overtone of the question was isolated, a n d the prosecutor moved on to another line of questioning after Calhoun responded negatively to the question. See Morin , 627 F.3d at 1000. The prosecutor’s remarks in his closing argument were made in
response to def

e n s e counsel’s reference of the question and focused on the presence of the large sum of money rather than the race of the participants. Second, the prejudicial effect of the prosecutor’s remarks was mitigated by the district court’s instruction to the jury that the statements and arguments of
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the attorneys were not evidence and that the verdict must be based only on the evidence. See id. At defense counsel’s reque s t , t he district court had also ensured during jury selection that no j u r o r f e l t that he or she would be influenced by the fact that Calhoun was African-American. Third, the evidence against Calhoun was strong, as the testi m ony of several witne s s e s indicated that he was a knowing participant in the drug transaction. Although Calhou n t e s t i f i ed that he was not aware of the drug transac tio n , hi s t e s ti m o ny al s o e s t ab li s h e d that the other participants knowingly displayed over $400,000 in cash in front of him and brought him to the scene of their planned drug purchase. Calh o u n ’ s argument is unavailing, as the prosecutor’s remarks do not “cast serious doubt on the correctness of the jury’s verdict.” See id. Calhoun also contends that his sentences totaling 180 months of impr i s o nment are unreasonable because the district court failed to consider under 18 U.S.C. § 3553(a)( 6 ) t h e disparity between Calhoun’s sentences and those of his co-participants in the attempted drug t r a n s a c t ion. For each conviction, the district court sentenced C a l h o u n to the relevant statutory minimum term of imprisonment. See 21 U.S.C. § 841(b)(1)(A); 21 U.S.C. § 846; 18 U.S.C. § 924(c)(1)(A)(i), (D)(ii). Because the distr i c t c o u r t lacked the power to sentence Calhou n b elow those statutory minimums, his challenge to his sentence is unavailing. See United States v. Doggins , 633 F.3d 379, 384 (5th Cir. 2011).Although neither party has noted a n e r r o r in the written judgment, the written judgment indicates that Calhoun received concurrent five-year terms of supervised release on all three of his convictions while the district court orally pronounced concurrent five-year terms of supervised release on Calhoun’s two drug convictions and a concurrent three-year term of supervised release for his f i rearm conviction. Where there is a conflict between the oral pronouncement of a sentence and the written jud g m e n t , the oral pronouncement prevails.
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United States v. Torres-Aguilar , 352 F.3d 934, 935 (5th Cir. 2003). Accordingly, the judgment is AFFIRMED, and the ca s e i s REMANDED for the limited
purpose of correcting the clerical error in the judgment. See F E D

. R. C R I M

. P. 36; United States v. Johnson , 588 F.2d 961, 964 (5th Cir. 197 9).

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HAYNES, Circuit Judge, concurring: I concur fully in the majority opinion. Specifically, I agree that Calhoun has not s h o w n r eversible plain error as a result of the prosecutor’s remarks. That said, I write separately to express deep concern about this conduct. First, it should be very clear (certainly to a lawyer licens e d thirty-seven years in Texas) t h a t such racially-charged comments are completely inappropriate for any lawyer. T E X

. D I S C I P L I NARY R U L E S O F P R O F ’ L C O N D U C T R. 5.08. Next, it is particularly inappropriate for an Assistant United States Attorney – a prosecutor – to behave this way. Prosecutors are held to a higher standard than even the high professional standards applicable to all attorneys. Berger v. United States , 295 U.S. 78, 88 (1935); see also T E X

. D I S C I P L I NARY R U L E S O F P R O F ’ L C O N D U C T R

. 3

. 0 9 , cmt. 1 (“A prosecutor has the responsibility to see that justice is done, and not simply to be an advoca t e . ”). “The United States Attorney is the represe n t a t ive

. . . of a sovereignty

. . . whose interest

. . . in a criminal prosecution is not that it shall win a case, but that justice shall be done.

. . . He m a y p rosecute with earnestness,

. . . [b]ut, while he may strike hard b l o w s , h e is not at liberty to strike foul ones .” Berger , 295 U.S. at 88 (emp h a s i s added). It is hard to think o f a m o r e f o u l blow than implying that the race or national or i gi n o f a group of people has anything to do with whether Calhoun should have known they were involved in dealing drugs. Finally, p e r h a p s the most troubling of all is how the United States Attorney’s Of

fice has handled this matter thereafter. While I do not fault the determination to argue in favor of sustaining the verdict, I am dismayed by the caval i e r approach to this situation. The Government’s brief calls the question “impolitic” and states: “even assuming the question crossed the line,” as if that is in doubt. Let me clear up any confusion – the question crossed the line. An apology is in order, and I do not see it in the briefing. Indeed, it should trouble the Assistant United States Attorney in question and all those in his office not just that he said such a t h i n g , b ut that he thought it. The title “prosecutor”–
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indeed, the title “lawyer”

– d e m a n d s b e t ter. I hope I will not have to say this again.

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