FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 3, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-15787

Non-Argument Calendar

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D. C. Docket No. 07-00201-CR-T-27TBM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

RONNIE DELAUGHTER, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(September 3, 2008)

Before DUBINA, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
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Ronnie Delaughter appeals his conviction for distribution of cocaine base,

in violation of 21 U.S.C. § 841(a)(1),(b)(1)(C), and his guideline-range sentence

of 37 months’ incarceration. On appeal, Delaughter argues that the district court

abused its discretion when it denied his motions for mistrial based on statements

made by a government witness and that the district court imposed an unreasonable

sentence in light of his drug addiction and its impact on his criminal history. 

I. 

We review denial of a motion for mistrial for abuse of discretion. United

States v. Ramirez, 426 F.3d 1344, 1353 (11th Cir. 2005) (per curiam). “A

defendant is entitled to a fair trial but not a perfect one.” Id. (internal quotation

mark omitted). We have stated that: “Evidentiary . . . errors do not constitute

grounds for reversal unless there is a reasonable likelihood that they affected the

defendant’s substantial rights.” United States v. Hawkins, 905 F.2d 1489,

1493 (11th Cir. 1990). Although individually errors may not warrant reversal,

their cumulative effect can so prejudice a defendant to require a new trial. 

Ramirez, 426 F.3d at 1353. However, a defendant’s substantial rights are not

affected by error if properly admitted evidence sufficiently establishes guilt. Id. at

1353-54.

Rule 403 provides in relevant part: “[a]lthough relevant, evidence may be
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excluded if its probative value is substantially outweighed by the danger of unfair

prejudice . . . .” Fed. R. Evid. 403. Rule 404(b) states that: 

Evidence of other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show action in conformity

therewith. It may, however, be admissible for other purposes, such as

proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident[.]

Fed.R.Evid. 404(b). However, prejudice from improperly admitted evidence may

be mitigated by a limiting instruction to the jury. United States v. Edouard,

485 F.3d 1324, 1346 (11th Cir. 2007). 

In United States v. Beasley, 2 F.3d 1551 (11th Cir. 1993), we concluded that

a defendant was not prejudiced by a witness’s cross-examination response that he

had the defendant in prison where the district court gave a curative instruction and

the response added nothing to the government’s case. Id. at 1559. 

To obtain a conviction for distribution in violation of 21 U.S.C. § 841, the

government must prove beyond a reasonable doubt that the defendant knowingly

or intentionally distributed a controlled substance. 21 U.S.C. § 841(a)(1). Section

841 identifies substances containing a detectable amount of cocaine as a

controlled substance. Id. § 841(b)(1)(A). 

In this case, Delaughter challenges his conviction due to the testimony of a

government witness who stated that he knew Delaughter from school and
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numerous citizen contacts while a patrol officer and that he had possibly arrested

Delaughter once prior to this case. However, testimony by another witness, to

which Dalaughter did not object, established Delaughter’s guilt by identifying him

as the seller of the drugs. In addition, the district court’s curative instruction

sufficiently remedied any prejudice Delaughter might have incurred. Because

Delaughter’s substantial rights were not affected by the challenged testimony, we

discern no error. 

II. 

We review the final sentence imposed by the district court for

reasonableness. United States v. Agbai, 497 F.3d 1226, 1229 (11th Cir. 2007) (per

curiam). Recently, the Supreme Court clarified that the reasonableness standard

means review of sentences for abuse of discretion. Gall v. United States, 552 U.S. 

__, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007). 

The district court must impose a sentence that is both procedurally and

substantively reasonable. Gall, 552 U.S. at __, 128 S. Ct. at 597. The Supreme

Court has explained that a sentence would be procedurally unreasonable if the

district court improperly calculated the guideline imprisonment range, treated the

Guidelines as mandatory, failed to consider the appropriate statutory factors, based

the sentence on clearly erroneous facts, or failed to adequately explain its
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reasoning. Id. If the district court made no procedural errors, then we review the

substantive reasonableness of the sentence imposed to determine whether the

sentence is supported by the 18 U.S.C. § 3553(a) factors. Id. at __, 128 S.

Ct. at 600. The § 3553(a) factors include: 

(1) the nature and circumstances of the offense and the history and

characteristics of the defendant; (2) the need to reflect the seriousness

of the offense, to promote respect for the law, and to provide just

punishment for the offense; (3) the need for deterrence; (4) the need

to protect the public; (5) the need to provide the defendant with

needed educational or vocational training or medical care; (6) the

kinds of sentences available; (7) the Sentencing Guidelines range; (8)

pertinent policy statements of the Sentencing Commission; (9) the

need to avoid unwanted sentencing disparities; and (10) the need to

provide restitution to victims.

United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (per curiam). 

There is a “range of reasonable sentences from which the district court may

choose.” Id. at 788. “[T]he party who challenges the sentence bears the burden of

establishing that the sentence is unreasonable in light of both [the] record and the

factors in section 3553(a).” Id. The weight given to particular sentencing factors

is committed to the sound discretion of the district court. United States v. Clay,

483 F.3d 739, 743 (11th Cir. 2007).

We have held that a district court is not required to state that it has explicitly

considered each § 3553(a) factor. United States v. Scott, 426 F.3d 1324, 1329
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(11th Cir. 2005). In addition, “when the district court imposes a sentence within

the advisory Guidelines range, we ordinarily will expect that choice to be a

reasonable one.” Talley, 431 F.3d at 788.

In this case, the district court properly calculated the Guidelines based on

the undisputed PSI, considered the Guidelines as advisory, and considered the

factors of 18 U.S.C. § 3553(a). Given the facts and circumstances of the case, the

district court determined that a median, guideline range sentence was appropriate. 

On appeal, we cannot say the district court improperly weighed the required

statutory factors, nor can we find any other circumstances which suggest that

Delaughter’s 37-month sentence is unreasonable. Accordingly, we affirm.

AFFIRMED.