                       NOT RECOMMENDED FOR PUBLICATION
                              File Name: 05a0769n.06
                             Filed: September 1, 2005

                                       No. 03-4222

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                    On Appeal from the United
                                                      States District Court for        the
ELIJAH DEXTER DUKES,                                  Southern District of Ohio.

       Defendant-Appellant.
                                            /

BEFORE:       RYAN, MOORE, and COOK, Circuit Judges.

       RYAN, Circuit Judge.        Elijah Dexter Dukes was convicted of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and sentenced to a term of

37 months’ imprisonment. In this direct appeal, Dukes alleges prosecutorial misconduct

and argues that the government presented evidence and argument to the jury to suggest

that Dukes should be found “guilty by association” because he was arrested in a

neighborhood well known to the jurors to be a local high crime area. We find no error and

we will affirm Dukes’s conviction. However, in light of United States v. Booker, 125 S. Ct.

738 (2005), we must vacate Dukes’s sentence and remand for resentencing.                The

government concedes that resentencing is necessary because Dukes was sentenced at

the bottom of his Guideline range and nothing in the record rebuts the presumption that he

was prejudiced by the court’s belief that the Guidelines were mandatory. United States v.

Barnett, 398 F.3d 516, 526-29 (6th Cir. 2005), petition for cert. filed, No. 04-1690, 73 USLW
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3735 (U.S. June 16, 2005). Because Dukes will be resentenced, we need not address the

other alleged sentencing errors he raises.

        Undercover Cincinnati police officer Howard Fox testified that on September 11,

2002, he saw Dukes placing a gun in his waistband while crossing the street in the

neighborhood north of downtown Cincinnati, Ohio, known to locals as Over the Rhine.

Officer Fox called for uniformed backup to help him investigate. Shortly thereafter, at least

one uniformed officer approached Dukes, identified himself, and told Dukes to drop to the

ground. Dukes fled, and was seen throwing the gun near some trash cans. He was

eventually arrested and the pistol was retrieved from the area where it had been thrown.

        After being advised of his rights, Dukes, on two separate occasions, admitted to

possession of the pistol, and his admissions were later received into evidence. At trial, the

only issue submitted to the jury was whether Dukes possessed the weapon. There was

extensive reference during the trial, by the prosecutor, the prosecution witnesses, and the

defense counsel, to the relevant events having occurred in the area known as Over the

Rhine, and to the character of the neighborhood as a violent, high crime area. The

defendant did not object to these references, perhaps because the area’s reputation would

have been well known to Cincinnati area jurors, and because the violent/high crime/drug

trafficking character of the area could lend some credibility to the defense counsel’s

argument that it would not be unusual for a discarded handgun to be found among trash

cans.

        But now, on appeal, and for the first time, Dukes argues that the prosecutor’s

repeated references to Over the Rhine as a violent, high crime, high vice area had the
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intended effect of suggesting Dukes was “guilty by association” and thus denied him a fair

trial.

         There having been no objection at trial, we review the trial court’s receiving the

testimony and allowing the non-testimony references to which Dukes now objects, for plain

error. To establish plain error, Dukes must show: (1) an error occurred at trial, (2) the error

was plain, i.e., obvious or clear, (3) the error affected his substantial rights, and (4) the plain

error seriously affected the fairness, integrity, or public reputation of the judicial

proceedings. Johnson v. United States, 520 U.S. 461, 467 (1997). “‘Plain error is defined

as an egregious error, one that directly leads to a miscarriage of justice.’” United States

v. Camejo, 333 F.3d 669, 672 (6th Cir. 2003) (citation omitted).

         The district court did not err, plainly or otherwise, in permitting the witnesses to refer

to the neighborhood in which Dukes was arrested in Cincinnati, widely known as Over the

Rhine, and its character as a high crime area.             This testimony served primarily as

permissible background evidence, necessary to tell the story of Dukes’s offense, see

United States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000), including the reason plainclothes

vice squad officers were working the area midday, alert to potential criminal activity. Indeed

it was Dukes’s counsel who first broached the subject of crime in the area when he inquired

of Officer Fox, on cross-examination concerning police response to complaints of

prostitution. It is obvious, on reading the transcript, that Dukes hoped to benefit by

introducing evidence that Over the Rhine was a high crime neighborhood. This is borne

out in Dukes’s counsel’s closing remarks to the jury, in which he argued the officers’

testimony that Dukes discarded the gun should not be believed (presumably neither should
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his two confessions), because it would not be uncommon to find a discarded gun lying

amidst trash cans in the Over the Rhine area.

      It was not error, plain or otherwise, for the district court to permit the testimony and

argument Dukes now challenges on appeal. And, perforce, the Assistant U.S. Attorney

was not guilty of prosecutorial misconduct in referring to the area and its high crime

character during closing argument.

      For the foregoing reasons, we AFFIRM Dukes’s conviction, but VACATE his

sentence and REMAND for resentencing, because, as the government concedes, the

sentence offends United States v. Barnett, 398 F.3d at 526-29.
