United States Court of Appeals

for the Fifth Circuit

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No. 22-30391

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United States of America, 

Plaintiff—Appellee,

versus

Kevondric Fezia, 

Defendant—Appellant.

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Appeal from the United States District Court 

for the Western District of Louisiana

USDC No. 2:21-CR-77-1

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Before Richman, Chief Judge, Southwick and Oldham, Circuit 

Judges.

Per Curiam:

*

Kevondric Fezia appeals his jury conviction for sex trafficking in

violation of 18 U.S.C. § 1591(a)(1) and attempting to entice a minor to engage

in prostitution in violation of 18 U.S.C. § 2422(b). He contends that the

prosecutor violated his constitutional rights at trial.

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* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

July 12, 2023

Lyle W. Cayce

Clerk

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No. 22-30391

2

Fezia did not object at trial, so our review is for plain error. See United 

States v. Cabello, 33 F.4th 281, 285 (5th Cir. 2022). To prevail, the defendant 

must show an error that is “clear or obvious” and not “subject to reasonable 

dispute.” Puckett v. United States, 556 U.S. 129, 135 (2009). Such error must 

also affect the defendant’s substantial rights. Id. And even if the defendant 

can make satisfy these threshold requirements, the court of appeals has 

“discretion to remedy the error—discretion which ought to be exercised only 

if the error seriously affects the fairness, integrity or public reputation of 

judicial proceedings.” Id. (quotation omitted). 

Fezia first argues that his Sixth Amendment rights under the Confrontation Clause were violated when the prosecutor, in his closing argument, 

referenced what the minor victim would have said if she testified at trial. But 

closing arguments do not implicate the Confrontation Clause so this claim 

fails. See United States v. Solis, 299 F.3d 420, 442 (5th Cir. 2002). 

Fezia next contends that the prosecutor committed prosecutorial 

misconduct by referencing evidence not presented at trial and blaming 

defense counsel’s theoretical cross-examination as the reason that the victim 

did not testify. While “[c]ounsel is accorded wide latitude during closing 

argument,” United States v. Reagan, 725 F.3d 471, 492 (5th Cir. 2013)

(quotation omitted), and may attempt to rebut assertions made by defense 

counsel, see United States v. McCann, 613 F.3d 486, 495 (5th Cir. 2010), a 

prosecutor may not refer to or even allude to evidence that was not produced

at trial, see United States v. Mendoza, 522 F.3d 482, 491 (5th Cir. 2008).

Fezia cannot show that the prosecutor’s statements were improper. 

See Vargas, 580 F.3d at 279 (noting that the absence of an objection by 

defense counsel supported the court’s determination that the prosecutor’s 

remarks did not rise to the level of clear or obvious error); see also, e.g., United 

States v. Tomblin, 46 F.3d 1369, 1390 & n.56 (5th Cir. 1995); United States v. 

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Livingston, 816 F.2d 184, 195 (5th Cir. 1987). The prosecutor’s remarks must 

be considered in the context of the entire trial. See Mendoza, 522 F.3d at 492; 

see also United States v. Young, 470 U.S. 1, 12–13 (1985) (“[I]f the 

prosecutor’s remarks were ‘invited,’ and did no more than respond 

substantially in order to ‘right the scale,’ such comments would not warrant 

reversing a conviction.”). Here, the record reflects that the prosecutor’s 

challenged remarks were made in response to defense counsel’s closing 

argument, emphasizing the absence of the victim’s testimony and explaining 

why such sexually charged testimony from a minor was unnecessary.

Moreover, Fezia has not shown that these statements had a strong 

prejudicial effect or that they “cast serious doubt on the correctness of the 

jury’s verdict.” United States v. Smith, 814 F.3d 268, 276 (5th Cir. 2016) 

(quotation omitted). The prosecution introduced considerable evidence that 

Fezia recruited the minor victim to engage in sex work after meeting her 

online and took her from Louisiana to Texas to engage in prostitution. The 

evidence of Fezia’s guilt—viewed in context with the district court’s 

instruction that the questions, statements, objections, and arguments by the 

lawyers are not evidence—outweighs any prejudicial effect of the 

prosecutor’s comments. See United States v. Turner, 674 F.3d 420, 439-40 

(5th Cir. 2012); see also Livingston, 816 F.2d at 196. Fezia has not and cannot 

show that the remarks constituted plain error.

AFFIRMED.

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