United States v. Wishork

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
September 21, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-60453
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEPHEN WISHORK,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 4:04-CR-32
--------------------
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Stephen Wishork appeals his conviction following a jury
trial for sexual assault of a child on an Indian reservation, in
violation of 18 U.S.C. §§ 1153 and 2241(c), and his resulting
180-month sentence. He contends that the prosecutor made
impermissible closing remarks which deprived him of a fair trial;
that the district court erred in preventing him from cross-
examining Government witness Randal Hickman about any charges of
sexual assault Hickman faced; and that the sentence imposed
violates United States v. Booker, 543 U.S. 220 (2005).

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No. 05-60453
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Wishork’s challenge to the prosecutor’s closing remarks
indicating that he and his girlfriend, Tonya Lillie, broke up
because she was aware he sexually assaulted the victim in this
case fails for lack of resulting substantial prejudice because
the challenged statements were not pervasive throughout closing
argument and were limited by the district court’s cautionary
instruction to the jury that argument by counsel was not
evidence. See United States v. Holmes, 406 F.3d 337, 356 (5th
Cir.), cert. denied, 126 S. Ct. 375 (2005). Moreover, the
evidence of Wishork’s guilt was strong, including the medical
evidence indicative of sexual assault; the victim’s testimony
that Wishork was her attacker, which testimony was corroborated
by the testimony of her family members, the investigating
officer, and the nurse who examined her; Officer Butler’s
testimony that, at his initial interview, Wishork denied being at
home on the night in question, then changed his story, saying
that he had gone out with Randal Hickman and returned home to
sleep in his room; and Hickman’s testimony that he spent the
night in Wishork’s room and did not see Wishork that evening,
which contradicted Wishork’s story to the police. See id.
To the extent that Wishork additionally challenges, for the
first time on appeal, the prosecutor’s comments regarding his
flight to New Mexico after his initial police interview, the
claim is similarly unavailing. The remarks regarding Wishork’s
flight to New Mexico were made in explanation of why he had not

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No. 05-60453
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been tested for chlamydia and were proper comments on the trial
evidence. See United States v. Binker, 795 F.2d 1218, 1224
(5th Cir. 1986). Moreover, the comments were proper rebuttal to
the defense counsel’s closing argument suggesting that the
investigators were at fault for failing to test Wishork for
chlamydia. The remarks were not plainly erroneous. See United
States v. Knezek, 964 F.2d 394, 400 (5th Cir. 1992).
Wishork next contends, also for the first time on appeal,
that the district court improperly limited his cross-examination
of Hickman. Even if it is assumed that the district court’s
ruling prohibiting Wishork’s proposed question on cross-
examination was error, Wishork’s substantial rights were not
affected, given the strength of the direct evidence of his guilt,
including the victim’s unwavering identification of him as her
assailant, as well as the lack of any evidence pointing to
Hickman as a suspect and the jury’s clear rejection of Lillie’s
alibi testimony. See United States v. Olano, 507 U.S. 725, 732
(1993).
Wishork additionally challenges his sentence. For the first
time on appeal, he contends that the sentence violates Booker
because the district court apparently considered the guidelines
to be mandatory and because it increased his sentence beyond the
statutory maximum based on judicially determined facts.
Wishork’s conclusional allegation that the district court
mistakenly considered the guidelines to be mandatory is

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No. 05-60453
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unsupported by the record, which establishes that sentence was
imposed after Booker. Because sentencing occurred post-Booker,
there is no Sixth Amendment violation in connection with the
district court’s factual findings. See United States v. Mares,
402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).
Further, because the sentence imposed fell within a properly
calculated advisory guidelines range, it was neither unreasonable
nor plainly erroneous. Id.
The district court’s judgment is AFFIRMED.

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