USA v. Nihad Al Jaberi

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12852
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NIHAD AL JABERI,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 4:21-cr-00031-RSB-CLR-1
____________________
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2 Opinion of the Court 22-12852
Before L AGOA , BRASHER , and TJOFLAT, Circuit Judges.
TJOFLAT, Circuit Judge:
Nihad Al Jaberi appeals his convictions and sentences for at-
tempted smuggling, failure to notify a common carrier, and sub-
mitting false or misleading export information. He contends that
there was insufficient evidence of his guilt because law enforce-
ment did not conduct certain surveillance and because of alleged
inconsistencies in witness testimony. He also argues that failure to
notify a common carrier and submitting false or misleading export
information are both lesser included offenses of smuggling and
therefore asserts that his convictions violate the Double Jeopardy
Clause. Next, he argues that his due process rights were violated
because the Government failed to correct false witness testimony
and made prejudicial statements. Finally, he asserts that his sen-
tences are procedurally and substantively unreasonable because
they subjected him to double jeopardy and were greater than nec-
essary. For the reasons below, we affirm Al Jaberi’s convictions
and sentences.
I. Background
In February 2021, a federal grand jury returned a three-count
indictment against Al Jaberi. Count One charged Al Jaberi with
smuggling in violation of 18 U.S.C. § 554(a) by willfully and know-
ingly attempting to export nine firearms from the United States,
contrary to 18 U.S.C. § 922(e) and 13 U.S.C. § 305(a)(1). Of the nine
firearms listed in Count One, relevant here was the “Magnum
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22-12852 Opinion of the Court 3
Research, model Desert Eagle, .44 caliber pistol.” Count Two
charged Al Jaberi with violating 18 U.S.C. § 922(e) by knowingly
delivering firearms to a common carrier without giving the carrier
written notice that the firearms were being transported or shipped.
Count Three charged Al Jaberi with violating 13 U.S.C. § 305(a)(1)
by knowingly causing a freight forwarder to submit false and mis-
leading export information through a Shippers Export Declaration
and an Automated Export System by falsely declaring the contents
of a shipment to be only spare auto parts.
A. Trial
During its opening statement, the Government stated that
Al Jaberi contracted with a common carrier to send a shipping con-
tainer to Iraq. It explained that Al Jaberi made an atypical request
to load the shipping container himself. It added that although
Al Jaberi told the common carrier that he was sending auto parts,
he loaded nine firearms into the shipping container. The Govern-
ment also stated that law enforcement searched the container be-
fore it left port and discovered the firearms, including “a .44 [cali-
ber] Magnum Desert Eagle.”
During the Government’s case, Valery Baranouski—the
owner of the common carrier company North Atlantic Logistics
(NAL)—testified as follows. NAL contracted with Al Jaberi to ship
a container with spare auto parts in it from Georgia to Iraq. Typi-
cally, NAL would load the shipping containers at their own facility.
But because of the pandemic, NAL sent the container to Al Jaberi’s
facility for loading to reduce human contact. Al Jaberi and NAL
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4 Opinion of the Court 22-12852
agreed that the container would be delivered directly to Al Jaberi
on July 24, 2020, and picked up three days later. On July 27,
Al Jaberi emailed a bill of lading to NAL that described the cargo
only as “auto parts.” The next day, NAL electronically submitted
this information to the United States Customs and Border Protec-
tion’s (CBP) Automated Export System (AES).
On cross-examination, defense counsel showed Baranouski
a copy of the shipping container’s bill of lading. He testified that
the document “indicate[d] that the cargo was loaded and shipped
from KHM Auto, Inc.,” at “1810 Auger Drive” and confirmed that
this was at Al Jaberi’s instruction.
The Government also called CBP Agent Nichole Hamm to
testify. Agent Hamm testified that her team searched Al Jaberi’s
outbound shipping container on August 4, 2020. Her team found
a camp stove box wrapped in green cellophane against the back
wall of the container. The box contained disassembled firearms
that were also wrapped in green cellophane.
After Agent Hamm’s testimony, the Government called
CBP Supervisor John Wilcher. Wilcher testified that one of the
firearms was “a .50 caliber Magnum Research Desert Eagle.”
When Wilcher testified that CBP found a magazine for “the .50-cal-
iber Desert Eagle,” the Government repeated, “.50-caliber Desert
Eagle, all right.” And, in the trial transcripts, the court reporter
labeled the exhibit for this firearm as a “.50 caliber Magnum Re-
search Desert Eagle.”
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22-12852 Opinion of the Court 5
The Government then called Special Agent Ariel Leinwand
of the Department of Commerce, Bureau of Industry and Security,
Office of Export Enforcement (BIS). Special Agent Leinwand testi-
fied that in October 2020, the BIS searched Al Jaberi’s home. Dur-
ing its search, the BIS discovered three key pieces of evidence:
(1) the same type of green cellophane that the firearms were
wrapped in; (2) retail boxes for the firearms that were found disas-
sembled in the shipping container; and (3) a paper retail purchase
receipt for one of the firearms found in the shipping container. BIS
agents also interviewed Al Jaberi. According to Special Agent Lein-
wand’s testimony, Al Jaberi admitted that he shipped these fire-
arms to Iraq without informing the common carrier of the fire-
arms. Al Jaberi also admitted that the firearms were his and that he
packed them in the container without informing the common car-
rier.
On cross-examination, Special Agent Leinwand testified that
the BIS did not investigate KHM Auto. Inc. or 1810 Auger Drive.
And Special Agent Leinwand did not recall uncovering any com-
munication between Al Jaberi and individuals in Iraq about the
shipment.
The Government’s final witness was BIS Special Agent Jon-
athan Gray. During his testimony, Special Agent Gray recognized
an exhibit as “the Magnum Research, Model Desert Eagle .44-cali-
ber.” The Government showed Special Agent Gray several photo-
graphs and he testified as follows. The series of photos came from
Al Jaberi’s cellphone and showed the container being progressively
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6 Opinion of the Court 22-12852
packed with cargo. Al Jaberi’s cellphone also contained photos of
firearms discovered in the shipping container. During the search
of Al Jaberi’s home, law enforcement took photos that showed a
roll of green cellophane wrap and cases matching the firearms.
On cross-examination, Special Agent Gray testified to the
following. In February 2021, the BIS arrested Al Jaberi and imme-
diately interviewed him. During the interview, Al Jaberi admitted
that he loaded the container. Special Agent Gray was shown a
photo of the shipping container, in which it appeared that the stove
box containing firearms was not located “all the way in the back”;
instead, there were “vehicles behind it.”
Before closing arguments, Al Jaberi moved for acquittal un-
der Rule 29 of the Federal Rules of Criminal Procedure1 and argued
that there was insufficient evidence of his guilt. Al Jaberi asserted
that no government witness identified him as the defendant. He
asserted that there was insufficient proof that he loaded the con-
tainer, and that any statement that he made regarding having done
so was “contradicted by the other evidence.” He posited that he
never certified the container’s contents because another individual
did, and he had no reason to know that NAL required written no-
tice of the firearms. He also argued that Baranouski’s testimony
contradicted the Government’s assertion that Al Jaberi knowingly
1 Rule 29(a) states in relevant part: “After the government closes its evidence
or after the close of all the evidence, the court on the defendant’s motion must
enter a judgment of acquittal of any offense for which the evidence is insuffi-
cient to sustain a conviction.” Fed. R. Crim. P. 29(a).
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22-12852 Opinion of the Court 7
caused the filing of false or misleading export documentation. The
District Court denied Al Jaberi’s motion.
In its closing argument, the Government stated that
Al Jaberi tried to smuggle “a .44-caliber Desert Eagle.” It asserted
that Al Jaberi “paid through some electronic payment Mr. Eugene
McNair $525, presumably for” one of the firearms. The Govern-
ment also posited that Al Jaberi “removed the actual camping stove
from the box,” and in its place, CBP found dissembled firearms.
Before jury deliberation, the District Court reminded the ju-
rors that they “must consider only the evidence” and that “any-
thing the lawyers sa[id was] not evidence.” United States v. Al Jaberi,
No. 4:21-cr-00031-RSB-CLR-1, Doc. 114 at 68:14–17 (S.D. Ga. Nov.
8, 2022). And the District Court explained the final element of
smuggling, in violation of 18 U.S.C. § 554(a), required that Al Jaberi
knowingly exported a firearm
in violation of at least one of the laws listed in the in-
dictment, that is, A, that the defendant knowingly de-
livered or caused to be delivered a container contain-
ing the firearms to a common carrier for international
shipment without providing written notice of the
presence of the firearms to the carrier . . . . That’s
18 [U.S.C. §] 922(e); or, B, that the defendant know-
ingly filed or caused another to file inaccurate or mis-
leading information through the United States Ship-
per’s Export Declaration or [AES], and that’s
13 [U.S.C. §] 305.
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8 Opinion of the Court 22-12852
Id., Doc. 114 at 74:2–14. The jury found Al Jaberi guilty on all
counts.
B. Sentencing Hearing
The U.S. Probation Office prepared a presentence investiga-
tion report (PSR) for the sentencing hearing. The PSR grouped
Al Jaberi’s offenses and calculated a base offense level of twenty-six
under U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2M5.2(a)(1)
(U.S. Sent’g Comm’n 2021). The PSR recommended that Al Jaberi
receive a two-level enhancement under U.S.S.G. § 3C1.1 for ob-
struction of justice, resulting in a total offense level of twenty-eight.
When the offense level was combined with a criminal his-
tory category of I, the PSR recommended a Guideline range of sev-
enty-eight to ninety-seven months’ imprisonment followed by one
to three years’ supervised release. Count One carried a maximum
term of ten years’ imprisonment, while Counts Two and Three
each carried a maximum term of five years each. Each count au-
thorized the court to impose a term of supervised release of not
more than three years, with multiple terms of supervised released
running concurrently.
The PSR also stated that there was no identifiable victim of
Al Jaberi’s conduct. As to the basis for the obstruction of justice
enhancement, the PSR noted that Al Jaberi requested another indi-
vidual to (1) “create a false bill of sale for the firearms” and (2) lie
to law enforcement to hide the origin of the firearms. Regarding
Al Jaberi’s personal characteristics, the PSR stated that he married
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22-12852 Opinion of the Court 9
his wife in 2007 and that he has three minor children from this mar-
riage.
Al Jaberi objected to the facts as alleged in the entirety of the
PSR’s offense conduct section, and the factual allegations underly-
ing his two-level enhancement for obstruction of justice.
In his sentencing memorandum, Al Jaberi stated that “[d]es-
pite the image portrayed at trial, [he] is known by others as a kind,
loving, and helpful husband and father who has never engaged in
criminal conduct.” He noted his personal history as an immigrant
who “save[d] his family after receiving threats from the militia” in
Iraq and obtained legal permanent resident status in the United
States in 2016. He added that he “has lived [a] life contrary to the
stereotypical smuggler” and “had too much to give up to intention-
ally seek to hurt anyone.” He requested that the court consider
that he was “unduly prejudiced” by a Government witness’s mis-
statement that the Desert Eagle was .50 caliber, because “a .50 cal-
iber firearm sounds more militaristic than a .44 caliber.”
Al Jaberi also stated that “there were too many inconsisten-
cies . . . for him to have been convicted, including . . . [t]he location
of the stove box containing the disassembled firearms.” He posited
that he should not have been convicted because “the [G]overn-
ment did not investigate the loading company . . . even though the
[G]overnment had documents . . . which showed the loading com-
pany’s involvement and responsibility for loading the container
and for making the reports . . . to be forwarded to the shipping
company.” He also submitted five letters from family and friends
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10 Opinion of the Court 22-12852
describing his good character. A letter from Al Jaberi’s wife de-
scribed him as “a loving husband and father . . . whose wife and
kids need him.”
At the sentencing hearing, Al Jaberi maintained his objec-
tions to the factual allegations in the PSR but stated that there was
“no reason to litigate [the objections] today, particularly given that
the objections d[id] not affect the [G]uidelines.” The court said that
it “reviewed the entirety of the record” and overruled each of
Al Jaberi’s objections to the PSR. And it noted that Al Jaberi “at-
tempt[ed] to obstruct justice by creating false documents, as set
forth in the [PSR].”
The District Court determined Al Jaberi’s total offense level
to be twenty-eight and criminal history category to be I. This re-
sulted in a Guideline range of seventy-eight to ninety-seven
months’ imprisonment, one to three years’ supervised release, and
a $25,000 to $250,000 fine.
As for the 18 U.S.C. § 3553 factors,2 the Government as-
serted that Al Jaberi continued to refuse to accept responsibility
2 Those factors are: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence im-
posed to reflect the seriousness of the offense, promote respect for the law,
provide just punishment for the offense, afford adequate deterrence to crimi-
nal conduct, protect the public from the defendant’s further crimes, and pro-
vide the defendant with needed educational or vocational training, medical
care, or other correctional treatment in the most effective manner; (3) the
kinds of sentences available; (4) the sentencing guidelines’ recommended
range; (5) any pertinent policy statement issued by the Sentencing
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22-12852 Opinion of the Court 11
despite the strong evidence of his guilt and argued that the firearms
at issue included “impressive powerful handguns . . . intended for
something violent and unlawful.” The Government requested
ninety months’ imprisonment followed by three years of super-
vised release.
Al Jaberi noted his loving family, community-mindedness,
and lack of criminal history. He added that there was no identifia-
ble victim of his conduct and that he would likely be deported and
separated from his family following his sentence. Al Jaberi argued
that his case involved “a mere nine firearms” and that the § 3553
factors would be satisfied by a seventy-eight-month sentence.
Prior to rendering its sentence, the District Court stated that
it had considered the parties’ arguments, the PSR, Al Jaberi’s sen-
tencing memorandum, and the § 3553 factors. The District Court
judge also stated that he was familiar with Al Jaberi’s case because
he presided at trial. The court sentenced Al Jaberi to “94 months
as to Count 1 and 60 months as to each of Counts 2 and 3, all to be
served concurrently” and three years’ supervised release on all
counts to be served concurrently. The court also ordered that
Al Jaberi be released to Immigrations and Customs Enforcement
for deportation proceedings following his release.
Although the District Court recommended that Al Jaberi be
given credit for the time he had served in custody, it did “not find
Commission; (6) the need to avoid unwarranted sentence disparities; and
(7) the need to provide restitution to any victims. 18 U.S.C. § 3553(a)(1)–(7).
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12 Opinion of the Court 22-12852
any reason to depart from the sentence called for by application of
the [G]uidelines.” The District Court added that it would impose
this sentence “regardless of the [G]uidelines” because it was an ap-
propriate sentence. And it explained that Al Jaberi “continue[d] to
lie” despite “an overwhelming amount of evidence” of his guilt.
The court then asked if there were any objections to the sentence,
and Al Jaberi replied, “No objection . . . , other than those previ-
ously stated.” Al Jaberi timely appealed.
II. Legal Standards
A few different standards govern our review. First, “[w]e
review the sufficiency of the evidence to support [a defendant’s]
conviction de novo, viewing the evidence in the light most favora-
ble to the government and drawing all reasonable inferences and
credibility choices in favor of the jury’s verdict.” United States v.
Rodriguez, 218 F.3d 1243, 1244 (11th Cir. 2000) (per curiam). “The
district court’s denial of [a] motion[] for judgment of acquittal will
be upheld if a reasonable trier of fact could conclude that the evi-
dence establishes the defendant’s guilt beyond a reasonable doubt.”
Id. But when a defendant challenges the sufficiency of the evidence
on a ground not argued before the district court, we review for
plain error. United States v. Baston, 818 F.3d 651, 664 (11th Cir.
2016). “To establish plain error, a defendant must show (1) error;
(2) that is plain; (3) that affects his substantial rights; and (4) that se-
riously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Lewis, 40 F.4th 1229, 1246 (11th Cir.
2022).
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22-12852 Opinion of the Court 13
Second, “[w]hile we usually review de novo claims of double
jeopardy, we review issues not properly raised before the district
court, such as the instant one, for plain error.” United States v. Bobb,
577 F.3d 1366, 1371 (11th Cir. 2009) (citation omitted). “When ‘the
explicit language of a statute or rule does not specifically resolve an
issue, there can be no plain error where there is no precedent from
the Supreme Court or this Court directly resolving it.’” United
States v. Castro, 455 F.3d 1249, 1253 (11th Cir. 2006) (per curiam)
(quoting United States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005)
(per curiam)).
Third, “[t]ypically, we review . . . a claim of prosecutorial
misconduct de novo.” United States v. Horner, 853 F.3d 1201, 1206
(11th Cir. 2017). “But when, as here, the defendant[] do[es] not
object at trial or otherwise raise the issue before the district court,
. . . we review only for plain error.” Id. “Reversal on the basis of
prosecutorial misconduct requires that the misconduct be so pro-
nounced and persistent that it permeates the entire atmosphere of
the trial.” United States v. Capers, 708 F.3d 1286, 1308 (11th Cir.
2013) (quoting United States v. Woods, 684 F.3d 1045, 1065 (11th Cir.
2012) (per curiam)).
Last, we review the reasonableness of a sentence “under a
deferential abuse-of-discretion standard.” Gall v. United States,
552 U.S. 38, 41 (2007). “[T]he party challenging the sentence bears
the burden to show that it is ‘unreasonable in light of the record
and the [§] 3553(a) factors.’” United States v. Shabazz, 887 F.3d 1204,
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14 Opinion of the Court 22-12852
1224 (11th Cir. 2018) (quoting United States v. Gonzalez,
550 F.3d 1319, 1324 (11th Cir. 2008)).
III. Discussion
Al Jaberi makes four arguments on appeal: (1) there was in-
sufficient evidence to convict him; (2) his convictions and sen-
tences violate the Double Jeopardy Clause; (3) the Government’s
alleged prosecutorial misconduct—i.e., its misstatements and fail-
ure to correct testimony—violated his due process rights; and
(4) his sentence was procedurally and substantively unreasonable.
None have merit. We review and reject each argument in turn.
A. Sufficiency of the Evidence
Al Jaberi argues that there was insufficient evidence to sus-
tain his convictions and that the District Court erred by denying his
motion for judgment of acquittal. He asserts that law enforcement
neither surveilled nor investigated the location where the shipping
container was loaded. Al Jaberi adds that the Government failed to
offer evidence about any communications between him and any-
one in Iraq about the firearms. Last, he contends that the Govern-
ment witnesses offered inconsistent testimony about the location
of the box containing the firearms. We disagree.
Although Al Jaberi moved for a judgment of acquittal, he did
so on different grounds than those raised here. We therefore re-
view his arguments here for plain error. See Baston, 818 F.3d at 664.
The District Court did not err—plainly or otherwise—by
denying Al Jaberi’s motion for acquittal. A reasonable juror could
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22-12852 Opinion of the Court 15
have concluded that the evidence established his guilt on all three
counts beyond a reasonable doubt.3 The Government presented
evidence that Al Jaberi admitted that the firearms discovered in the
shipping container were his, that the shipping container was des-
tined for Iraq, and that he did not inform the shipper that the cargo
included firearms. The Government also presented evidence,
through witness testimony and photos, that Al Jaberi hid the fire-
arms in the container without disclosing their existence to the com-
mon carrier and submitted false information about the cargo’s con-
tents that was eventually uploaded to AES. And the Government
submitted evidence that the firearms’ cases, a physical receipt for
one of the firearms, and the same green cellophane wrap as was
found in the container were all found in Al Jaberi’s home.
That Al Jaberi hid the firearms within his cargo without dis-
closing their existence was strong circumstantial evidence of his
criminal intent. Cf. United States v. Singer, 963 F.3d 1144, 1166 (11th
Cir. 2020) (“Singer’s failure to tell United States law enforcement
about the items raised a reasonable inference that he was trying to
hide the items from United States officials . . . .”). And, in the
3 As an aside, Al Jaberi’s insufficient evidence argument is inadequate. His
brief omits a distinct statement of facts section, which was (and continues to
be) required under our rules at the time his brief was filed. See 11th Cir. R.
28-1(i)(ii) (Dec. 1, 2022). Nor does Al Jaberi indicate which of the three counts
lacked sufficient evidence or how the evidence was insufficient on at least one
element. As “[t]he Seventh Circuit memorably said . . . appellate judges ‘are
not like pigs, hunting for truffles buried in briefs.’” Chavez v. Sec’y Fla. Dep’t of
Corrs., 647 F.3d 1057, 1061 (11th Cir. 2011) (quoting United States v. Dunkel,
927 F.2d 955, 956 (7th Cir. 1991)).
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16 Opinion of the Court 22-12852
context of photos showing that Al Jaberi loaded the container,
there is sufficient proof that Al Jaberi took a substantial step toward
exporting the firearms in violation of U.S. law. See id. at 1160–61;
18 U.S.C. § 554(a). Al Jaberi’s failure to disclose the firearms on the
bill of lading’s cargo description—which was later uploaded to
AES—is also sufficient to sustain his convictions under
18 U.S.C. § 922(e) and 13 U.S.C. § 305(a)(1).
Al Jaberi’s assertions that the evidence was insufficient be-
cause law enforcement did not surveil the loading location or be-
cause the Government provided no proof of any communications
between him and anyone in Iraq are meritless. “It is not necessary
that the evidence exclude every reasonable hypothesis of inno-
cence or be wholly inconsistent with every conclusion except that
of guilt, provided a reasonable trier of fact could find that the evi-
dence establishes guilt beyond a reasonable doubt.” United States
v. Young, 906 F.2d 615, 618 (11th Cir. 1990).
Al Jaberi’s argument about the alleged inconsistent witness
testimony goes toward the weight and credibility of the evidence—
not its sufficiency. We see nothing in the witness testimony to
overcome the substantial deference we afford to the jury’s credibil-
ity determinations. See United States v. Holt, 777 F.3d 1234, 1255
(11th Cir. 2015). Nothing in the testimony was “contrary to the
laws of nature, or . . . so inconsistent or improbable on its face that
no reasonable factfinder could accept it.” Id. (quoting United States
v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002)).
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22-12852 Opinion of the Court 17
In short, there was sufficient evidence to convict Al Jaberi on
all three charges. And the District Court did not err by denying
Al Jaberi’s motion.
B. Double Jeopardy
Al Jaberi next argues that the District Court committed plain
error because his convictions violate the Double Jeopardy Clause.
He contends that Counts Two and Three are lesser included of-
fenses of Count One under the Blockburger test.4 In support of this
argument, Al Jaberi relies on Singer. According to Al Jaberi,
Singer held that, to establish smuggling, the Government must
prove that the defendant actually violated all essential elements of
the underlying “law or regulation” that rendered the exportation
illegal under 18 U.S.C. § 554(a). Embedded within his double jeop-
ardy argument, Al Jaberi also argues that he was severely preju-
diced by ineffective trial counsel because his trial counsel did not
raise the double jeopardy issue.5 We disagree.
4 See Blockburger v. United States, 284 U.S. 299, 304 (1932).
5 Because Al Jaberi’s ineffective assistance of counsel claim is “not designated
as [a] discrete issue[] in his brief to this Court and [is] not supported by . . .
substantive analysis, [it is] not properly before us.” United States v. Goodwin,
765 F.3d 1306, 1319 n.5 (11th Cir. 2014); see also Sappupo v. Allstate Floridian Ins.
Co., 739 F.3d 678, 681–82 (11th Cir. 2014) (explaining that an appellant aban-
dons a claim by failing to list it in his statement of issues, failing to “devot[e] a
discrete section of his argument to [it],” raising it “in a perfunctory manner
without supporting arguments and authority,” or embedding it within a larger
argument (first quoting Cole v. U.S. Att’y Gen., 712 F.3d 517, 530 (11th Cir.
2013), abrogated on other grounds by Nasrallah v. Barr, 140 S. Ct. 1683 (2020); then
citing Walter Int’l Prods., Inc. v. Salinas, 650 F.3d 1402, 1413 n.7 (11th Cir. 2011);
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18 Opinion of the Court 22-12852
“The Fifth Amendment’s Double Jeopardy Clause guaran-
tees that no person shall ‘be subject for the same offence to be twice
put in jeopardy of life or limb.’” Bobb, 577 F.3d at 1371 (quoting
U.S. Const. amend. V). “This guarantees against . . . multiple pun-
ishments for the same offense.” Id. Generally, “when a defendant
has violated two different criminal statutes, the Double Jeopardy
Clause is implicated when both statutes prohibit the same act or
transaction or when one act is a lesser included offense of the
other.” Id.
To determine whether dual statutory provisions prohibit
the same offense we apply the Blockburger test. See Blockburger v.
United States, 284 U.S. 299, 304 (1932). The Blockburger test analyzes
“whether each provision requires proof of a fact which the other
does not.” Id. “Our analysis focuses on the proof necessary to es-
tablish the statutory elements of each offense, not the actual evi-
dence presented at trial.” Bobb, 577 F.3d at 1372. “Specifically, we
need not examine the facts alleged in the indictment to support the
counts nor the ‘practical significance’ of the theories alleged for
and then citing United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir.
2003)).
Moreover, “[w]e will not generally consider claims of ineffective assistance
of counsel raised on direct appeal where the district court [neither] enter-
tain[ed] the claim nor develop[ed] a factual record.” United States v. Bender,
290 F.3d 1279, 1284 (11th Cir. 2002). “The preferred means for deciding a
claim of ineffective assistance of counsel is through a 28 U.S.C. § 2255 motion
‘even if the record contains some indication of deficiencies in counsel’s perfor-
mance.’” United States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010) (quot-
ing Massaro v. United States, 538 U.S. 500, 504 (2003)).
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22-12852 Opinion of the Court 19
each count.” United States v. Hassoun, 476 F.3d 1181, 1186 (11th Cir.
2007). That is true even when, as here, “charges are interrelated,
[but] are not interdependent.” Id. at 1188.6
Al Jaberi has not shown that the District Court plainly erred
for two reasons. First, Al Jaberi has not identified that the pur-
ported error was plain. To do so, he would have to cite precedent
from the Supreme Court or this Court holding that the convictions
on Count One and either Count Two or Three violate the Double
Jeopardy Clause. See United States v. Campo, 840 F.3d 1249, 1267
(11th Cir. 2016). Al Jaberi has not cited any such cases.
Second, Al Jaberi has shown no error under the Blockburger
test. A review of the three statutes under which Al Jaberi was con-
victed reveals that each statute entails different elements from the
others.
6 In Hassoun, we acknowledged that
there may remain a few specific circumstances in which we are
required to look beyond the elements of the offenses in order
to assess potential multiplicity problems, such as in a “contin-
uing criminal enterprise” prosecution where a drug conspiracy
is separately charged, or in cases where two counts are charged
under the same statutory provision.
476 F.3d 1181, 1186–87 (11th Cir. 2007). These circumstances are not present
here.
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Count One—the attempted smuggling charge—alleged that
Al Jaberi violated 18 U.S.C. § 554(a), which provides:
Whoever fraudulently or knowingly . . . attempts
to export or send from the United States, any . . . ob-
ject contrary to any law . . . of the United States . . . ,
shall be fined under this title, imprisoned not more
than 10 years, or both.
Count Two—the failure to notify a common carrier
charge—alleged that Al Jaberi violated 18 U.S.C. § 922(e), which
states:
It shall be unlawful for any person knowingly to
deliver or cause to be delivered to any common or
contract carrier for transportation . . . , any package
or other container in which there is any firearm or
ammunition without written notice to the carrier that
such firearm or ammunition is being transported or
shipped . . . .
And Count Three—the submitting a false or misleading ex-
port information charge—alleged that Al Jaberi violated 13 U.S.C.
§ 305(a)(1), which provides:
Any person who . . . knowingly submits false or
misleading export information through . . . the Auto-
mated Export System (AES) shall be subject to a fine
not to exceed $10,000 per violation or imprisonment
for not more than 5 years, or both.
To recap, § 554(a) penalizes the specific act of attempting to
illegally export contraband abroad. See 18 U.S.C. § 554(a).
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Whereas § 922(e) penalizes the failure to provide a common carrier
with written notice that cargo contains a firearm. Id. § 922(e). And
§ 305(a)(1) penalizes the act of submitting false or misleading ex-
port information through AES. 13 U.S.C. § 305(a)(1). Though
there is “substantial overlap in the proof offered to establish the[se]
crimes,” a conviction under these three statutes does not violate
the Double Jeopardy Clause. See Iannelli v. United States,
420 U.S. 770, 785 n.17 (1975).
Contrary to Al Jaberi’s argument, Singer does not alter our
analysis.7 Singer neither involved a Double Jeopardy Clause chal-
lenge nor held that, to establish attempted smuggling, the Govern-
ment must prove an actual violation of the underlying law or reg-
ulation that rendered the exportation illegal under § 554(a).
Al Jaberi is correct about one thing: in discussing the § 554(a)
smuggling conviction, Singer stated “we hold that, as the government
charged Singer, it was required to prove both that Singer violated
50 U.S.C. § 1705 and 15 C.F.R. § 746.2(a) and that Singer knew of
the facts that made his conduct a violation of these provisions.”
963 F.3d at 1158 (emphasis added). But the issue in Singer was
whether the defendant had to know that his attempted smuggling
7 In Singer, the defendant was charged (and convicted) under 18 U.S.C. § 554(a)
for attempting to smuggle modems to Cuba without a license contrary to
50 U.S.C. § 1705 and 15 C.F.R. § 746.2(a). United States v. Singer, 963 F.3d 1144,
1148, 1155 (11th Cir. 2020). Section 1705(c), which requires a mens rea of will-
fulness, makes it unlawful for a person to violate or attempt to violate “any
license, order, regulation, or prohibition.” 50 U.S.C. § 1705(c). And
15 C.F.R. § 746.2(a) requires a license to export certain items to Cuba.
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22 Opinion of the Court 22-12852
violated the law. Singer did not ask whether the Government had
to prove the defendant violated each of the elements underlying
the law or regulation he attempted to violate. So this holding is
inapplicable.
Al Jaberi’s interpretation of Singer contradicts the law of at-
tempt. Attempt is an inchoate crime that never requires the Gov-
ernment to prove all the essential elements of the completed of-
fense. As we noted in Singer, “[t]o prove attempt, the government
must show two things: that the defendant (1) had ‘the specific in-
tent to engage in criminal conduct with which he was charged; and
(2) had taken substantial steps toward to the commission of the of-
fense that strongly corroborates his criminal intent.’” Id. (quoting
United States v. St. Hubert, 909 F.3d 335, 351 (11th Cir. 2018), abro-
gated on other grounds by United States v. Taylor, 596 U.S. 845 (2022)).
The Government need not prove all the elements of § 554(a), let
alone all the elements of the underlying law or regulation that
made the attempted smuggling illegal. See, e.g., United States v.
Rivero, 889 F.3d 618, 623 (9th Cir. 2018) (“The government did not
have to prove the elements necessary to convict Rivero under [22
U.S.C.] § 2778(c), because conviction under § 2778(c) is not an ele-
ment of the offense violating § 554(a).”); United States v. Cardenas,
810 F.3d 373, 374 (5th Cir. 2016) (per curiam) (holding similarly).
Al Jaberi has not shown that his convictions under
18 U.S.C. §§ 554(a), 922(e), and 13 U.S.C. § 305(a)(1) violate the
Double Jeopardy Clause. Nor has he shown that the District Court
plainly erred by sentencing him for his convictions.
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22-12852 Opinion of the Court 23
C. Due Process
Al Jaberi also argues that his due process rights were violated
because of the Government’s alleged prosecutorial misconduct.
He asserts that the Government (1) failed to correct false testimony
and (2) made misstatements in its opening and closing arguments.
Neither argument is persuasive.
i. Failure to Correct False Testimony
Al Jaberi first claims that he was unduly prejudiced by CBP
Supervisor Wilcher’s testimony that the Desert Eagle was a .50 cal-
iber, not a .44 caliber as alleged in the indictment. He asserts that
“a .50 caliber firearm is definitely more militaristic than a .44 caliber
firearm and made him more guilty in the jury’s mind.” And
Al Jaberi argues that the Government’s failure to correct Wilcher’s
testimony “was material in that the Government focused on the
‘high caliber’ aspect” and “apparently influenced the court re-
porter” to erroneously label the Government’s trial exhibit as a .50
caliber Magnum Research Desert Eagle.
The Supreme Court has held that the Government’s failure
to correct false evidence can violate due process rights, and a de-
fendant may challenge such violations via a Giglio claim. See Giglio
v. United States, 405 U.S. 150, 153–55 (1972); see also United States v.
Dickerson, 248 F.3d 1036, 1041 (11th Cir. 2001). To prevail on a Gi-
glio claim, the defendant must establish that (1) the Government
knowingly used perjured testimony, or failed to correct what it
later learned was false testimony, and (2) the falsehood was mate-
rial. Dickerson, 248 F.3d at 1041. “Perjured testimony ‘must be
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24 Opinion of the Court 22-12852
given with the willful intent to provide false testimony and not as
a result of a mistake, confusion, or faulty memory.’” Horner,
853 F.3d at 1206 (quoting United States v. Singh, 291 F.3d 756, 763
n.4 (11th Cir. 2002)). “[F]alse testimony is deemed material if there
is a reasonable likelihood the false testimony could have affected
the judgment of the jury.” United States v. McNair, 605 F.3d 1152,
1208 (11th Cir. 2010).
As noted above, Al Jaberi preserved no due process claim.
We therefore review his due process claim for plain error.
See United States v. Nixon, 918 F.2d 895, 904–05 (11th Cir. 1990).
Like his double jeopardy claim, Al Jaberi’s due process claim fails
under plain-error review. Al Jaberi has not cited any binding prec-
edent that directly holds that misstating the caliber of a firearm the
defendant was convicted of smuggling constitutes prosecutorial
misconduct, much less violates due process. So we cannot say that
any purported error is plain.
Nor can we say any error occurred. Al Jaberi has not al-
leged—much less demonstrated—either that Wilcher’s misstate-
ment was willful or that the prosecutor’s failure to correct it was
knowing, rather than reckless or negligent. See Dickerson, 248 F.3d
at 1041; Horner, 853 F.3d at 1206. How could he? The prosecutor,
Special Agent Gray, and the Government’s Exhibit 19 all described
the firearm as a .44 caliber. These accurate descriptions show that
Wilcher’s misstatement and the prosecutor’s failure to correct it,
were honest mistakes.
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22-12852 Opinion of the Court 25
What’s more, Wilcher’s misstatement was immaterial. The
illegality of Al Jaberi’s actions did not depend on the caliber of the
firearms. Instead, his actions were illegal because he tried to smug-
gle firearms abroad. There is no “reasonable probability” that the
jury would have acquitted Al Jaberi but for Wilcher’s misstate-
ment. See United States v. Nerey, 877 F.3d 956, 970 (11th Cir. 2017).
Al Jaberi has not shown that Wilcher’s misstatement and the pros-
ecutor’s failure to correct amounted to plain error, such that a due
process violation occurred.
ii. Prosecutor’s Comments
Al Jaberi next argues that the Government misstated that he
made the unusual request to load the shipping container, when it
was NAL that unilaterally decided to have Al Jaberi load it. He also
claims that the Government’s statement that he removed the
camping stove and replaced it with firearms lacked evidentiary sup-
port. Last, Al Jaberi contends that the Government’s closing argu-
ment contained “unwarranted speculations, with alarming words
such as ‘presumably.’” For instance, he cites the prosecutor’s com-
ment that Al Jaberi “paid through some electronic payment
Mr. Eugene McNair $525, presumably for the Baretta APX.”8 Per
Al Jaberi, these comments, individually or collectively, give rise to
a due process violation.
8 According to Special Agent Gray, McNair was the original purchaser of the
Baretta handgun.
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26 Opinion of the Court 22-12852
“A prosecutor’s comments in [opening statements and] clos-
ing [arguments] must be viewed in the context of the trial as a
whole.” United States v. Reeves, 742 F.3d 487, 505 (11th Cir. 2014).
Opening statements and closing arguments “assist the jury in ana-
lyzing the evidence, and although a prosecutor may not exceed the
evidence presented at trial during [his or] her closing argument, [he
or] she may state conclusions drawn from the trial evidence.” Id.
“Yet, a prosecutor is free to suggest during oral argument what the
jury should conclude from the evidence before it.” United States v.
Rivera, 780 F.3d 1084, 1100 (11th Cir. 2015).
“Prosecutorial misconduct justifies a new trial only if the re-
marks in question were both (a) improper and (b) prejudicial to the
defendant’s substantial rights.” Nerey, 877 F.3d at 970. “A prosecu-
tor’s remarks, suggestions, insinuations, and assertions are im-
proper when they are calculated to mislead or inflame the jury’s
passions.” United States v. Azmat, 805 F.3d 1018, 1044 (11th Cir.
2015). And “[s]ubstantial rights are prejudiced when there is ‘a rea-
sonable probability . . . that, but for the remarks, the outcome of
the trial would have been different.” Nerey, 877 F.3d at 970 (omis-
sion in original) (quoting United States v. Eckhardt, 466 F.3d 938, 947
(11th Cir. 2006)). “Yet, substantial evidence establishing guilt may
counteract claims of prejudice.” Id.
Al Jaberi also failed to preserve this argument, so we review
it for plain error. See United States v. Goldstein, 989 F.3d 1178, 1199
(11th Cir. 2021). Here too, Al Jaberi fails to show plain error. He
points to no binding precedent that holds that the prosecutor’s
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22-12852 Opinion of the Court 27
purported mischaracterizations were either improper or prejudi-
cial. Any purported error therefore is not plain.
Nor are we convinced there was error for two reasons. First,
“because the statements of counsel are not evidence, the district
court may rectify improper prosecutorial statements by instructing
the jury that only the evidence in the case is to be considered.”
United States v. Jacoby, 955 F.2d 1527, 1541 (11th Cir. 1992). That is
what the District Court did here. It instructed the jury that it:
“must consider only the evidence admitted that [the court had] ad-
mitted in the case” and explained that “[e]vidence includes the tes-
timony of witnesses and the exhibits admitted. But anything the
lawyers say is not evidence and isn’t binding on you.” Al Jaberi,
No. 4:21-cr-00031-RSB-CLR-1, Doc. 114 at 68:14–17.
Second, the prosecutor’s alleged misstatements about
Al Jaberi’s request to load the container, the camping stove, and
the $525 payment are largely irrelevant or are logical inferences
from the trial evidence. The prosecutor’s comment that Al Jaberi
wanted to load the container is immaterial to the crimes charged.
Al Jaberi twice admitted that he loaded firearms into the shipping
container. That was the crux of the crime—not where he loaded
them, who chose that location, or the reasons behind those choices.
We cannot say that the prosecutor’s comment changed the out-
come of the trial. See Nerey, 877 F.3d at 970.
As for the prosecutor’s camping stove and payment com-
ments, both are logically inferred from supporting evidence. A
prosecutor “may state conclusions drawn from the evidence.”
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28 Opinion of the Court 22-12852
United States v. Bailey, 123 F.3d 1381, 1400 (11th Cir. 1997). The
evidence showed that Al Jaberi put the firearms into a box that was
originally labeled as containing a camping stove and loaded that
box into the shipping container. It could be inferred that Al Jaberi
removed the stove before putting the firearms in the box. The ev-
idence also showed that McNair bought the Baretta APX 9-mm pis-
tol on June 13, 2018, Al Jaberi paid him $525 on April 6, 2019, and
Al Jaberi searched the internet for spare parts for the same gun on
April 29 and May 8, 2020. It was reasonable to infer that Al Jaberi
“presumably” paid McNair for the gun.
We are satisfied that the prosecutor’s comments did not vi-
olate Al Jaberi’s due process rights. The prosecutor’s comments
were not calculated to mislead or inflame the jury’s passions. And
Al Jaberi has not shown that plain error occurred.
D. Sentencing Reasonableness
Al Jaberi’s final argument concerns his sentences. He argues
that his sentences are procedurally unreasonable because they
were imposed under simultaneous convictions thereby violating
the Double Jeopardy Clause. He also argues that his
ninety-four-month sentence is substantively unreasonable because
it “overstates the seriousness of what is attributable to him” and “is
greater than necessary to meet the need to protect the public” be-
cause he presents a low risk of recidivism based on statistics of sim-
ilarly aged individuals. He adds that his personal characteristics,
lack of minimum sentences for his convictions, and the lack of any
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22-12852 Opinion of the Court 29
“identifiable victim” demonstrate that a lower sentence would be
adequate. We disagree.
In reviewing the reasonableness of a sentence, we first con-
sider whether the district court committed a procedural error.
See Gall, 552 U.S. at 51. A district court commits a procedural sen-
tencing error when it imposes a sentence based on clearly errone-
ous facts, fails to calculate (or improperly calculates) the Guidelines
range, fails to consider the § 3553(a) factors, treats the Guidelines
as mandatory, or fails to explain the chosen sentence. Id.
After ensuring that a sentence is procedurally sound, we
then consider whether it is substantively reasonable. Id.
District courts are required to impose sentences suffi-
cient, but not greater than necessary, to comply with
the factors and purposes set forth in § 3553(a)(2),
which include the need to reflect the seriousness of
the offense, promote respect for the law, provide just
punishment for the offense, deter criminal conduct,
and protect the public.
United States v. Plate, 839 F.3d 950, 957 (11th Cir. 2016); 18 U.S.C.
§ 3553(a)(2). And district courts “must consider the nature and cir-
cumstances of the offense, the history and characteristics of the de-
fendant, the kinds of sentences available, the applicable [G]uide-
lines range, the pertinent policy statements of the Sentencing Com-
mission, the need to avoid unwarranted sentencing disparities, and
the need to provide restitution to the victim.” Id.; 18 U.S.C.
§ 3553(a)(1), (3)–(7).
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30 Opinion of the Court 22-12852
“[T]he weight to be accorded any given § 3553(a) factor is a
matter committed to the sound discretion of the district court, and
we will not substitute our judgment in weighing the relevant fac-
tors.” United States v. Butler, 39 F.4th 1349, 1356 (11th Cir. 2022)
(quoting United States v. Martinez-Gonzalez, 663 F.3d 1305, 1311
(11th Cir. 2011) (per curiam)). “A district court abuses its discretion
when it (1) fails to afford consideration to relevant factors that were
due significant weight, (2) gives significant weight to an improper
or irrelevant factor, or (3) commits a clear error of judgment in
considering the proper factors.” United States v. Suarez,
893 F.3d 1330, 1337 (11th Cir. 2018) (quoting United States v. Blake,
868 F.3d 960, 978 (11th Cir. 2017)).
A district court’s failure to specifically mention certain miti-
gating factors “do[es] not compel the conclusion that the sentence
crafted in accordance with the § 3553(a) factors was substantively
unreasonable.” See United States v. Snipes, 611 F.3d 855, 873 (11th
Cir. 2010). “The district court is not required to explicitly address
each of the § 3553(a) factors or all of the mitigating evidence.”
United States v. Taylor, 997 F.3d 1348, 1354 (11th Cir. 2021) (per cu-
riam). Instead, “[a]n acknowledgment the district court has con-
sidered the defendant’s arguments and the § 3553(a) factors will
suffice.” Gonzalez, 550 F.3d at 1324.
We will vacate a district court’s sentence as substantively
unreasonable “only if we are left with the ‘definite and firm’ con-
viction that the district court committed a clear error of judgment
in weighing the § 3553(a) factors by arriving at a sentence that is
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22-12852 Opinion of the Court 31
outside the range of reasonable sentences dictated by the facts of
the case.” United States v. Goldman, 953 F.3d 1213, 1222 (11th Cir.
2020) (quoting United States v. Irey, 612 F.3d 1160, 1190 (11th Cir.
2010) (en banc)). “A sentence imposed well below the statutory
maximum penalty is an indicator of a reasonable sentence.” United
States v. Stanley, 739 F.3d 633, 656 (11th Cir. 2014).
The District Court did not abuse its discretion because
Al Jaberi’s sentence was both procedurally and substantively rea-
sonable. Al Jaberi’s sentence was procedurally reasonable because,
as explained above, there was no double jeopardy violation.9 And
his sentence was substantively reasonable because the District
Court did not fail to consider relevant factors due significant
weight, give significant weight to an improper factor, or clearly err
in considering the proper factors. See Irey, 612 F.3d at 1189. The
District Court stated that it had considered the parties’ arguments,
the PSR, Al Jaberi’s sentencing memorandum, and the § 3553 fac-
tors. True, the court emphasized Al Jaberi’s untruthfulness despite
the substantial evidence of his guilt. But the court permissibly at-
tached greater weight to Al Jaberi’s personal characteristics and his
offense conduct. See United States v. Kuhlman, 711 F.3d 1321, 1327
(11th Cir. 2013) (“[S]ignificant reliance on a single factor does not
necessarily render a sentence unreasonable.”). And though the
District Court did not explicitly discuss Al Jaberi’s mitigating
9 As this is the only procedural reasonableness argument Al Jaberi makes, he
has abandoned any other challenge to the procedural reasonableness of his
sentences. See Sappupo, 739 F.3d at 681–82.
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32 Opinion of the Court 22-12852
evidence, it was not required to. See Snipes, 611 F.3d at 873. In any
event, the District Court stated that it considered Al Jaberi’s sen-
tencing memorandum, which presented his mitigation evidence.
Al Jaberi’s ninety-four-month sentence was also within the Guide-
lines’ range, and it was twenty-six months below the statutory max-
imum, both of which support our conclusion that his sentence is
reasonable. See Stanley, 739 F.3d at 656.
In short, we discern no abuse of discretion. Al Jaberi’s be-
low-Guidelines sentence was both procedurally and substantively
reasonable.
IV. Conclusion
Al Jaberi has not shown that the District Court erred. The
evidence was sufficient, such that the District Court properly de-
nied Al Jaberi’s motion for acquittal. And we identify no double
jeopardy or due process violations. We also conclude that the Dis-
trict Court did not abuse its discretion in sentencing Al Jaberi.
Al Jaberi’s convictions and sentences are therefore affirmed.
AFFIRMED.
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