UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-4295

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JORGE ESPINOSA,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Greenville. James C. Fox, Senior

District Judge. (4:15-cr-00068-F-5)

Submitted: January 31, 2017 Decided: February 10, 2017

Before WILKINSON, AGEE, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North 

Carolina, for Appellant. John Stuart Bruce, United States 

Attorney, Jennifer P. May-Parker, First Assistant United States 

Attorney, Barbara D. Kocher, Assistant United States Attorney, 

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Jorge Espinosa appeals from his conviction after a jury 

trial for conspiracy to possess with the intent to distribute 5

kilograms or more of cocaine, in violation of 21 U.S.C. § 846 

(2012), and his resulting 188-month sentence. Espinosa argues 

that the district court erred in denying his motion for a 

mistrial and imposing a sentence that was greater than 

necessary. Finding no error, we affirm.

First, Espinosa assigns error to the district court’s 

denial of his motion for a mistrial, which was predicated on the 

prosecutor’s questioning of a law enforcement witness regarding 

Espinosa’s post-arrest, post-Miranda* silence. We review the 

denial of a motion for a mistrial for an abuse of discretion. 

See United States v. Johnson, 587 F.3d 625, 631 (4th Cir. 2009); 

United States v. Wallace, 515 F.3d 327, 330 (4th Cir. 2008) (“We 

review . . . a district court’s denial of a motion for a 

mistrial . . . for an abuse of discretion.”). A district court 

abuses its discretion when “it has acted arbitrarily or 

irrationally[,] . . . has failed to consider judicially 

recognized factors constraining its exercise of discretion, or 

when it has relied on erroneous factual or legal premises.”

 * Miranda v. Arizona, 384 U.S. 436 (1966).
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L.J. v. Wilbon, 633 F.3d 297, 304 (4th Cir. 2011) (alterations 

in original) (internal quotation marks omitted).

Prosecutorial comment on a defendant’s invocation of rights 

pursuant to Miranda is forbidden. See Doyle v. Ohio, 426 U.S. 

610, 618 (1976) (opining that “it would be fundamentally unfair 

and a deprivation of due process to allow the arrested person’s 

silence to be used to impeach an explanation subsequently 

offered at trial”). Miranda assures a defendant that his 

silence or invocation of the right to counsel will not be used 

against him at trial; thus, the Supreme Court has explained, to 

allow the prosecution to comment at trial on the defendant’s 

decision to exercise that right violates the “implicit assurance 

[afforded by Miranda] ‘that silence will carry no penalty.’” 

Greer v. Miller, 483 U.S. 756, 762 (1987) (quoting Doyle, 426 

U.S. at 618). In Greer, the Supreme Court articulated that the 

holding of Doyle, rather than prohibiting all reference to or 

mention of the defendant’s silence, was “that the Due Process 

Clause bars the use for impeachment purposes of a defendant’s 

postarrest silence.” Greer, 483 U.S. at 763 (internal citation 

omitted). Thus, “[w]hile a single comment alone may sometimes 

constitute a Doyle violation, the Supreme Court’s opinion in 

Greer makes clear that a single mention does not automatically

suffice to violate a defendant’s rights when the government does 

not specifically and expressly attempt to use—as was attempted 
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in Doyle and in Greer—the improper comment to impeach the 

defendant.” United States v. Stubbs, 944 F.2d 828, 835 (11th 

Cir. 1991).

Such comments violate due process only if they “so infected 

the trial with unfairness as to make the resulting conviction a 

denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 

637, 643 (1974). To obtain a new trial on this basis, Espinosa 

must show both “(1) that the government’s remarks were in fact 

improper and (2) that the remarks prejudicially affected the 

defendant’s substantial rights so as to deprive the defendant of 

a fair trial.” United States v. Higgs, 353 F.3d 281, 330 (4th 

Cir. 2003) (citation and internal quotation marks omitted). In 

determining whether Espinosa has made the requisite showing of 

prejudice with respect to any particular comment, we must look 

to a number of factors, including: (1) the degree to which the 

prosecutor’s remarks have a tendency to mislead the jury and to 

prejudice the accused; (2) whether the remarks were isolated or 

extensive; (3) absent the remarks, the strength of competent 

proof introduced to establish the guilt of the accused; and 

(4) whether the comments were deliberately placed before the 

jury to divert attention to extraneous matters. Id. Also

relevant to this inquiry is “the issuance of curative 

instructions from the court,” Humphries v. Ozmint, 397 F.3d 206, 
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218 (4th Cir. 2005) (en banc), which the jury is presumed to 

follow, Richardson v. Marsh, 481 U.S. 200, 206 (1987). 

An attempted Doyle violation amounts to a claim of 

prosecutorial misconduct, which violates due process if it so 

egregious that it effectively denies the defendant a fair trial. 

Greer, 483 U.S. at 765. When reviewing such a claim, the 

reviewing court must evaluate the challenged remark “in 

context.” Id. at 766 (internal quotation marks omitted). 

Here, the testifying officer was asked what response 

Espinosa made after he was read his Miranda rights. The officer

testified that Espinosa responded that he did not wish to speak 

with him. However, as the officer left the room he made a

comment regarding Espinosa’s father. To this comment, which was 

not presented as a question, the defendant made an incriminating 

statement, which was properly admitted: “if you let me speak to 

my dad, I’ll tell you where the other kilos are.” While 

Sergeant Weeks’ testimony made reference to the Defendant’s 

post-arrest silence, the Government was not using or attempting 

to use the fact of the Defendant’s silence against him. 

Instead, the comment was “in the context of the officer[]’[s] 

narrative[] regarding [the defendant’s] . . . arrest.” 

Noland v. French, 134 F.3d 208, 216 (4th Cir. 1998). In 

addition, defense counsel recognized that there was no Doyle

violation, and raised Espinosa’s invocation of his right to 
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silence when cross-examining Weeks. We conclude that the court 

did not abuse its considerable discretion in denying the motion 

for a mistrial. See Noland, 134 F.3d at 216 (holding 

prosecutor’s argument that related to voluntary statement after 

Miranda, rather than to silence itself, was not a Doyle

violation).

Next, Espinosa contends that a sentence below the 

Sentencing Guidelines range would have been appropriate and

afforded adequate deterrence to Espinosa’s criminal conduct, 

particularly in light of his limited criminal history. We 

review a sentence for reasonableness, applying an abuse of 

discretion standard. Gall v. United States, 552 U.S. 38, 46 

(2007). We first review for significant procedural error, and 

if the sentence is free from such error, we then consider

substantive reasonableness. Id. at 51. Espinosa contends that 

his sentence is substantively unreasonable. Substantive 

reasonableness is determined by considering the totality of the 

circumstances, and if the sentence is within the 

properly-calculated Guidelines range, this court applies a 

presumption of reasonableness. United States v. Strieper, 666 

F.3d 288, 295 (4th Cir. 2012).

“Any sentence that is within or below a properly calculated 

Guidelines range is presumptively [substantively] reasonable. 

Such a presumption can only be rebutted by showing that the 
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sentence is unreasonable when measured against the 18 U.S.C. 

§ 3553(a) [(2012)] factors.” United States v. Louthian, 756 

F.3d 295, 306 (4th Cir. 2014) (internal citation omitted). The 

district court considered that the offense involved Espinosa’s 

participation in a conspiracy to distribute a large amount of 

cocaine. Espinosa delivered a kilogram of cocaine to a deal 

involving a confidential informant, possessed a firearm, and hid 

16 kilograms of cocaine, worth approximately $400,000, the 

location of which he did not disclose. The court noted the 

defendant’s age, his lack of prior criminal history, and the 

possibility Espinosa was motivated to protect his father, a 

coconspirator. The court determined that these circumstances

were insufficient to mitigate the totality of the circumstances. 

The court recognized its obligation to impose a sentence 

sufficient but not greater than necessary to comply with 

sentencing purposes, and compared the sentencing ranges and 

factors of Espinosa’s coconspirators, but given the highly 

addictive nature of cocaine and the violence associated with it, 

and that the court was troubled by Espinosa’s failure to 

disclose the location of 16 kilograms of cocaine, the court 

concluded that a sentence of 188 months was necessary. Espinosa 

has not rebutted the presumption of reasonableness. Thus, the 

sentence was not an abuse of discretion.
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Accordingly, we affirm the judgment. We deny Espinosa’s 

motion to file a pro se supplemental brief. We dispense with 

oral argument because the facts and legal contentions are 

adequately presented in the materials before this court and 

argument would not aid the decisional process.

AFFIRMED