APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE. Hon. Paul J. Barbadoro, U.S. District Judge.
Tina Schneider on brief for appellant.
Donald Feith, Acting United States Attorney, and Charles L. Rombeau, Assistant United States Attorney, on brief for appellee.
Before Kayatta, Selya and Stahl, Circuit Judges.
SELYA, Circuit Judge.
Defendant-appellant Lawrence Madsen asserts that the prosecutor's statements during closing argument in his criminal trial misstated the evidence, amounted to proscribed comments on his failure to testify, and improperly shifted the burden of proof. He further asserts that the district court abused its discretion in imposing a variant sentence above the guideline sentencing range (GSR). Finding these claims to be without merit, we affirm the defendant's conviction and sentence.
In August of 2014, a federal grand jury sitting in the District of New Hampshire charged the defendant with seven counts of aiding and abetting the making of material false statements in connection with the acquisition of firearms. See 18 U.S.C. § § 2, 922(a)(6), 924(a)(2). The indictment addressed a series of seven gun purchases (involving a total of nine guns) by a codefendant, Bretton Crawford. Crawford eventually pled guilty and thereafter cooperated with the government. The defendant, however, stood his ground.
We rehearse the key facts as the jury could supportably have found them at trial. See United States v. Gobbi, 471 F.3d 302, 305 (1st Cir. 2006). Crawford testified that he had purchased the guns identified in the indictment as a " straw" for the defendant, falsely describing himself on federal forms as the real buyer. According to Crawford, the defendant (a Massachusetts resident) relied on Crawford's ability to purchase firearms in New Hampshire in order to acquire weapons that he (the defendant) could then re-sell illicitly to third parties. The defendant funded Crawford's purchases and, in addition, paid him a $100 emolument for each firearm.
Crawford's version of events was corroborated in substantial part by the dealers from whom he purchased the guns. It was also corroborated by text messages between Crawford and the defendant, text messages between the defendant and a third party, and a surveillance video showing Crawford and the defendant together in a gun shop. The defendant did not testify.
At the close of all the evidence, the jury convicted the defendant on six of the seven counts. During the sentencing hearing, the district court set the defendant's base offense level at twelve; added a four-level enhancement because the offense conduct involved between eight and twenty-four weapons, see U.S.S.G. § § 2K2.1(a)(7), (b)(1)(B); and placed the defendant in criminal history category I. Although these calculations yielded a GSR of 21 to 27 months, the court varied upward and imposed a 36-month term of immurement. This timely appeal followed.
In this venue, the defendant raises claims of both trial and sentencing error. We consider these claims sequentially.
A. The Prosecutor's Closing Argument.
Grasping the defendant's claim of trial error requires some additional background. In his opening statement, defense counsel began by telling the jury:
This is Larry Madsen. Larry is innocent of these charges, ladies and gentlemen. He didn't do what the government has accused him of doing, and I'm going to talk to ...