                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                No. 04-14607                    JUNE 22, 2005
                            Non-Argument Calendar             THOMAS K. KAHN
                          ________________________                CLERK


                       D.C. Docket No. 03-00507-CR-1-1

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

      versus

MICHAEL BERRY CODY,

                                                   Defendant-Appellant.
                         __________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                        _________________________
                               (June 22, 2005)

Before BLACK, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

      A jury convicted Michael Berry Cody of bank robbery, in violation of 18

U.S.C. § 2113(a) (count 1); attempted bank robbery, in violation of 18 U.S.C. §

2113 (a) and (d) (count 2); and carrying or using a firearm during the commission
of the attempted bank robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (count

3). Cody appeals his convictions on all counts and sentences. We affirm his

convictions, but vacate his sentences on counts one and two in light of United

States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005), and remand for resentencing.

We consider each of Cody’s four arguments in turn.

                                   DISCUSSION

I.    Sufficiency of the Evidence

      Cody first argues that the evidence supporting his convictions is insufficient

because eyewitness identification is unreliable, as is the testimony of witnesses

regarding their level of certainty in an identification. He argues that the in-court

identification of him during his trial was impermissibly suggestive and ensured

that he would be identified by the bank employees because he was seated at the

defense table and was the only person in the courtroom that fit the robber’s

description. He further argues that there was insufficient evidence to support his

conviction of carrying a firearm since the evidence presented was not sufficient for

a reasonable trier of fact to conclude that the object he revealed was a firearm, as

defined by the statute, and not a toy gun.

      We review de novo whether sufficient evidence supports a jury’s verdict.

United States v. Byrd, 403 F.3d 1278, 1288 (11th Cir. 2005). We view the

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evidence in the light most favorable to the government and resolve all reasonable

inferences and credibility determinations in the government’s favor. Id. “A

conviction must be upheld unless the jury could not have found the defendant

guilty under any reasonable construction of the evidence.” Id.

      A. Counts 1 and 2

      To convict a defendant of bank robbery or attempted bank robbery the

government must prove that the defendant: 1) took or attempted to take; 2) from

the person or presence of another, 3) money or anything of value; 4) belonging to

or possessed by a federally insured bank; 5) by force, violence, or intimidation.

See 18 U.S.C. §§ 2113(a), (f). We have recognized that issues associated with

eyewitness identification, which include perception and memory, “can be

adequately addressed in cross-examination and that the jury can adequately weigh

these problems through common-sense evaluation.” United States v. Smith, 122

F.3d 1355, 1357 (11th Cir. 1997) (quoting United States v. Thevis, 665 F.2d 616,

641 (5th Cir. Unit B 1982)).

      To establish that an in-court identification was unnecessarily suggestive, a

defendant must show that the identification was “so impermissibly suggestive as

to give rise to a very substantial likelihood of misidentification.” Code v.

Montgomery, 725 F.2d 1316, 1319 (11th Cir. 1984). In determining the reliability

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of in-court identifications, we consider the totality of the circumstances which

include: 1) the opportunity of the witness to view the criminal at the time of the

crime; 2) the witness’s degree of attention; 3) the accuracy of the witness’s prior

description of the criminal; 4) the level of certainty demonstrated by the witness at

the confrontation; and 5) the length of time between the crime and the

confrontation. Id.

       Witness testimony established that a robber took money from one federally

insured bank and attempted to take money from a second federally insured bank,

thus establishing the elements of the offenses. Furthermore, multiple eyewitnesses

described the robber as matching Cody’s general appearance and three

eyewitnesses specifically identified Cody as the perpetrator in both offenses.

After a review of the record and the parties’ briefs, we conclude that Cody has not

shown that the in-court identifications made by the eyewitnesses were so

impermissibly suggestive as to give rise to a very substantial likelihood of

misidentification since the totality of the circumstances suggests that their in-court

identifications were reliable. As a result, the record contains sufficient evidence to

support the jury’s guilty verdict in Cody’s bank robbery and attempted bank

robbery offenses. Therefore, we affirm Cody’s convictions on counts one and

two.

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      B. Count 3

      To sustain a conviction for carrying or using a firearm during the

commission of a crime, the government must present sufficient evidence that the

defendant 1) carried or used a firearm 2) during and in relation to the commission

of a crime of violence. See 18 U.S.C. § 924(c)(1)(A); see also United States v.

Timmons, 283 F.3d 1246, 1250-52 (11th Cir. 2002) (affirming conviction under §

924(c)(1)(A) for carrying a firearm in relation to drug trafficking offense because

it was based on sufficient evidence). The government is not required to show to a

“scientific certainty” that a defendant was carrying a gun as defined by the statute,

nor is it required to present the gun into evidence. United States v. Woodruff, 296

F.3d 1041, 1049 (11th Cir. 2002). “The government must present sufficient

testimony, including the testimony of lay witnesses, in order to prove beyond a

reasonable doubt that a defendant used, possessed or carried a ‘firearm’ as that

term is defined [in the statute].” Id.

      The record contains sufficient evidence to support the jury’s guilty verdict

on Cody’s firearm count in light of the testimony by one of the bank tellers that

she was familiar with guns and saw the handle of a gun in Cody’s waistband.

Therefore, we affirm Cody’s conviction on count 3.

II.   Confrontation Clause

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      Cody asserts that the district court violated his Sixth Amendment

confrontation right when it denied him the opportunity to question the case agent

investigating his case about a bank robbery committed by a person matching

Cody’s description that occurred while he was incarcerated.

      We review a district court’s ruling on the extent of cross-examination for

abuse of discretion. See United States v. Garcia, 13 F.3d 1464, 1468 (11th Cir.

1994). “The district court has discretionary authority to rule on the admissibility of

evidence, including the power to limit cross-examination. The district court’s

discretion is limited, however, by the requirements of the Sixth Amendment.” Id.

(internal citations omitted). “The test for the Confrontation Clause is whether a

reasonable jury would have received a significantly different impression of the

witness’ credibility had counsel pursued the proposed line of cross-examination.”

United States v. Diaz, 26 F.3d 1533, 1539-40 (11th Cir. 1994) (quotation and

citation omitted). Once there is sufficient cross-examination to satisfy the

Confrontation Clause, the district court may limit further cross-examination within

its discretion. Id. at 1539.

      The district court did not abuse its discretion by limiting the scope of

Cody’s cross-examination of the case agent. Cody had full opportunity to attack

the agent’s credibility, which was not unduly limited by the court’s ruling.

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Furthermore, allowing Cody to explore the facts and circumstances of the other

bank robberies would have brought before the jury a host of details that may have

confused the jury. Because a reasonable juror would not have received a

significantly different impression of the agent’s credibility had the court allowed

Cody to pursue that line of cross-examination, the district court did not violate the

Confrontation Clause. Therefore, we affirm the court’s evidentiary ruling as

within its discretion.

III.   Prejudicial Statements

       Cody contends that several prejudicial statements were made during the

course of his trial, and that, while none of the statements individually warrant

relief, the cumulative effect of the statements warrant reversal, even though he did

not make objections. He asserts that statements by a police officer at Veterans

Administration Medical Center (VA) indicating that he saw Cody on a news

broadcast regarding “numerous bank robberies” infers that Cody was involved in

more than the bank robberies for which he was charged. He contends that the

officer’s testimony that he worked in a “special post” at the VA indicated that

Cody was receiving treatment for substance abuse and implied that Cody required

special security precautions. He asserted that the clear implication of the case

agent’s testimony describing Cody’s transportation to and from the holding facility

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to the court for his initial appearance was that Cody was held without bond after

his arrest, and the effect was to negate the presumption of innocence.

      Because Cody did not object to the statements made during his trial, we

review for plain error. United States v. Hall, 314 F.3d 565, 566 (11th Cir. 2002).

Under a plain error standard, Cody must show: 1) an error occurred; 2) that was

plain; 3) and affected his substantial rights; and 4) seriously affected the fairness,

integrity, or public reputation of judicial proceedings. Id.

      Federal Rule of Evidence 403 provides that relevant evidence can be

excluded if it is unduly prejudicial. Fed. R. Evid. 403. Though it is within the

court’s discretion to exclude prejudicial evidence, the district court did not plainly

err in allowing the statements Cody now alleges were prejudicial. As we

recognized in Hall, a district court is not required to intervene sua sponte and

instruct a jury to disregard statements that may be objectionable. See Hall, 314

F.3d at 566. Thus, even assuming that the district court erred, that error was not

plain. Id. Because Cody cannot satisfy the plain error standard, his argument

challenging the evidence as prejudicial must fail, and his conviction must stand.

IV.   Booker/Blakely

      Finally, Cody argues, in light of Booker, that his sentence for counts one

and two should be vacated as a result of a two-level enhancement of his offense

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level for a “threat of death” and increase in his criminal history category as a result

of prior convictions.

      Because Cody objected before the district court, we review Cody’s sentence

de novo, and will vacate and remand only for harmful error. United States v. Paz,

405 F.3d 946, 948 (11th Cir. 2005). “To find harmless error, [this Court] must

determine that the error did not affect the substantial rights of the parties.” United

States v. Hernandez, 160 F.3d 661, 670 (11th Cir. 1998). Under harmless error

review, the government bears the burden of establishing the absence of prejudice

to the defendant’s substantial rights.

      In Booker, the Supreme Court concluded that: “Any fact (other than a prior

conviction) which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable doubt.” __ U.S.

at __, 125 S. Ct. at 756. Pursuant to Booker, “the Sixth Amendment right to trial

by jury is violated where under a mandatory guidelines system a sentence is

increased because of an enhancement based on facts found by the judge that were

neither admitted by the defendant nor found by the jury.” United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005), petition for cert. filed, 73

U.S.L.W. 3531 (U.S. Feb. 23, 2005) (No. 04-1148).

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      Recently, this Court explained in United States v. Shelton that there are two

types of Booker error: 1) constitutional error resulting from enhancements based

on impermissible judicial fact-finding, and 2) statutory error resulting from

application of the guidelines in a mandatory fashion. 400 F.3d 1325, 1331 (11th

Cir. 2005).

      With respect to Cody’s contention that the district court’s use of his prior

convictions to enhance his sentence, we simply note that in Booker, the Supreme

Court “left undisturbed its holding in [Almendarez-Torres], that recidivism is not a

separate element of an offense that the government is required to prove beyond a

reasonable doubt.” United States v. Orduno-Mireles, No. 04-12630, slip op. at

1792 (11th Cir. Apr. 6, 2005); see also United States v. Camacho-Ibarquen, 404

F.3d 1283, 1290 (11th Cir. 2005). Therefore, the district court did not violate the

Sixth Amendment by relying on Cody’s prior convictions to determine his

sentence.

      Nevertheless, the government has failed to prove that the sentence

enhancement based on a finding that Cody made a threat of death did not violate

the Sixth Amendment. Likewise, the government concedes that the district court

erred in sentencing Cody under a mandatory sentencing scheme. Because the




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government has not carried its burden of showing that these errors were harmless,

we vacate Cody’s sentences for counts one and two, and remand for re-sentencing.

                                  CONCLUSION

      For the reasons discussed above, we affirm Cody’s convictions because

sufficient evidence supports the convictions, the district court did not violate his

Sixth Amendment right to confrontation, and the district court did not plainly err

in admitting potentially prejudicial witness statements. Nevertheless, because the

district court committed statutory and constitutional Booker error, we vacate

Cody’s sentences for counts one and two, and remand for re-sentencing.

      AFFIRMED IN PART, VACATED IN PART AND REMANDED.




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