                                                              [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                 MAY 9, 2005
                                 No. 04-13094                  THOMAS K. KAHN
                             Non-Argument Calendar                 CLERK
                           ________________________

                     D. C. Docket No. 03-00052-CR-1-MMP

UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                      versus

EARL JEFFERY BARBER,

                                                          Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Northern District of Florida
                         _________________________

                                   (May 9, 2005)

Before HULL, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

      Earl Jeffery Barber appeals his convictions and sentences for possession of a

firearm by a convicted felon, in violation of 18 U.S.C. sections 922(g)(1) and
924(e)(1), and possession of stolen firearms, in violation of 18 U.S.C.

sections 922(j) and 924(a)(2). Barber argues that the district court erred when it

denied a motion to suppress a photographic lineup identification and when it

applied an obstruction of justice enhancement. Barber also contends for the first

time on appeal that the district court violated his Sixth Amendment rights when it

applied the obstruction of justice enhancement based on facts that were neither

charged in his indictment nor proven to a jury. We reject each argument and

affirm Barber’s convictions and sentences.

                                I. BACKGROUND

      The charges against Barber arose from an investigation of the burglary of the

home of Katherine Hayes and the theft of her jewelry, collector’s coins, and

firearms. Before trial, Barber filed a motion to suppress the identification of him

by an eyewitness, Katherine Hayes, and her eleven year old son, John Hayes,

through a photographic lineup. Barber argued that the photographic array was

unduly suggestive because he was the only individual with hair color that matched

the description of the eyewitnesses. Barber also argued that the identification

procedure was tainted because, when John Hayes was shown the photographic

lineup, Barber’s photograph was marked with Katherine Hayes’s initials.

      The district court held a hearing on the motion to suppress, and the



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government presented the testimony of Katherine Hayes, John Hayes, and the

detective who conducted the photographic lineup. The district court denied the

motion to suppress and explained that “nothing about the manner in which the

photographic array was prepared, or presented, was unduly suggestive” and that

“each witness, independent of each other and in a separate proceeding, in fact

identified the defendant . . . and that it was only after each had made their own

independent identification that they placed their initials upon the photo array.”

      A jury found Barber guilty on both counts. At the sentencing hearing,

Barber stated that he accepted and had no objections to the facts and

recommendations in the presentence investigation report. The government

objected because the probation office did not recommend an enhancement for

obstruction of justice. Special Agent Michael Mitchell testified in support of the

enhancement. He testified that Barber’s co-defendant, Anthony Boyd, who turned

himself into police the day after the burglary, told authorities that Barber instructed

Boyd not to implicate Barber. Agent Mitchell also testified that in phone calls

made from prison, Barber told his mother, sister, and wife to make sure that Boyd

maintained his story and not “lie on him.” Barber also made a phone call to Boyd

about Boyd’s testimony in front of the grand jury. Portions of the recorded phone

calls were played for the court.



                                           3
      The district court sustained the government’s objection and found that

Barber “concocted the story so as to hide the truth of the fact that he was . . .

involved in the burglaries. He maintained that posture through the tapes I heard by

telling others to find certain testimony.” The court applied the enhancement and

sentenced Barber to 327 months’ imprisonment for Count 1 and 120 months’

imprisonment for Count 2, to run concurrently.

                                  II. DISCUSSION

      Barber makes three arguments on appeal. Barber first argues that the district

court erred when it denied his motion to suppress the photograph lineup

identification by the two eyewitnesses to the burglary. Second, he contends that

the district court erred when it applied the obstruction of justice enhancement,

because the government failed to present reliable and specific evidence to support

the enhancement and instead relied on the trial testimony of Barber’s co-defendant.

Finally, Barber argues for the first time on appeal that the obstruction of justice

enhancement was based on facts neither charged in the indictment nor submitted to

the jury, in violation of the Sixth Amendment. See United States v. Booker, 543

U.S. ___, ___, 125 S. Ct. 738, 749-56 (2005).

                                A. Motion to Suppress

      We employ a two-step analysis to assess the constitutionality of the decision



                                            4
by a district court to admit out-of-court identifications. See Cikora v. Duffer, 840

F.2d 893, 895 (11th Cir. 1988). “First, we must determine whether the original

identification procedure was unduly suggestive. If we conclude that the

identification procedure was suggestive, we must then consider whether, under the

totality of the circumstances, the identification was nonetheless reliable.” Id.

Factors to be considered in determining whether the identification was reliable

include: (1) opportunity to view; (2) degree of attention; (3) accuracy of the

description; (4) level of certainty; and (5) length of time between the crime and the

identification. See Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382 (1972).

         The district court concluded that the identification procedure was not

impermissibly suggestive. This conclusion is subject to a clearly erroneous

standard. See Cikora v. Duffer, 840 F.2d at 896. “In reviewing the denial of a

motion to suppress, we construe the facts in the light most favorable to the

prevailing party below.” United States v. Fernandez , 58 F.3d 593, 596 (11th Cir.

1995).

         Construing the facts most favorably to the government, the district court did

not clearly err when it found that neither the photographic lineup nor the

identification procedure was unduly suggestive. Although John Hayes testified at

the motion hearing that he could not remember whether his mother’s intials were



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on the photographic array when he made the identification, both Katherine Hayes

and the detective who conducted the lineup testified at the motion hearing that Mrs.

Hayes’s initials were not on the array that was shown to John. In addition, the hair

color in Barber’s photograph was not so different from those in the other

photographs that we could conclude that the district court clearly erred when it

found the photographic lineup not unduly suggestive. Barber’s contention that a

minor difference in hair color necessarily renders a photographic lineup unduly

suggestive is not supported by our precedent. See United States v. Weldon, 826

F.2d 1018, 1021 (11th Cir. 1987). Because we conclude that the district court did

not clearly err when it found neither the lineup nor identification procedures

suggestive, we do not need to proceed to the second step to determine whether the

identification was unreliable.

                                 B. Obstruction of Justice

      A court may impose a two-level enhancement if the defendant “willfully

obstructed or impeded, or attempted to obstruct or impede, the administration of

justice during the course of the investigation, prosecution, or sentencing of the

instant offense of conviction . . . .” U.S.S.G. § 3C1.1 The comments to U.S.S.G.

section 3C1.1 provide a non-exhaustive list of examples of the types of conduct to

which the adjustment applies and include “threatening, intimidating, or otherwise



                                            6
unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or

attempting to do so.” Id. cmt. at 4(a). “The district court’s determination that a

defendant has obstructed justice is a factual finding which must be affirmed unless

it is clearly erroneous.” United States v. Kramer, 943 F.2d 1543, 1552 (11th Cir.

1991) (citation omitted).

       Barber’s argument fails. The evidence at sentencing showed that Barber told

his co-defendant, Boyd, to lie to authorities regarding his involvement in the

burglary, and Barber pressured and solicited his family to pressure Boyd to

continue to tell authorities that he was not involved. The district court did not

clearly err when it found that Barber had obstructed justice and applied the

enhancement.

                             C. Sixth Amendment Violation

       Barber’s argument that the enhancement of his sentence violated the Sixth

Amendment is reviewed for plain error. We “may not correct an error the

defendant failed to raise in the district court unless there is: (1) error, (2) that is

plain, and (3) that affects substantial rights. If all three conditions are met, an

appellate court may then exercise its discretion to notice a forfeited error, but only

if (4) the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.



                                             7
2005) (quotations and citations omitted).

      The first prong of the plain error test is satisfied. Under a mandatory

guidelines system, the district court enhanced Barber’s sentence as a result of

findings made by the judge that went beyond the facts admitted by Barber or found

by the jury. The enhancement was based on the judge’s findings regarding

obstruction of justice, and it increased Barber’s base offense level, guideline range,

and sentence under a mandatory guidelines system.

      The second prong of the plain error test is also satisfied. “[T]he 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.” Id. at

1297. Although the error was not “plain” at the time of sentencing, “where the

law at the time of trial was settled and clearly contrary to the law at the time of

appeal – it is enough that the error be ‘plain’ at the time of appellate

consideration.” Johnson v. United States, 520 U.S. 461, 468, 117 S. Ct. 1544,

1549 (1997). This error is now plain under Booker.

      Barber, however, fails to satisfy the third prong of the plain error test. The

third prong “requires that an error have affect[ed] substantial rights, which almost

always requires that the error must have affected the outcome of the district court



                                            8
proceedings.” Rodriguez, 398 F.3d at 1299 (quotations and citations omitted). “It

is the defendant rather than the [g]overnment who bears the burden of persuasion

with respect to prejudice.” United States v. Olano, 507 U.S. 725, 734, 113 S. Ct.

1770, 1778 (1993). “In applying the third prong, we ask whether there is a

reasonable probability of a different result if the guidelines had been applied in an

advisory instead of binding fashion by the sentencing judge in this case.”

Rodriguez, 398 F.3d at 1301.

       Barber has not established that he would have received a more lenient

sentence had the district court considered the Guidelines advisory as opposed to

mandatory. The district court sentenced Barber at the highest point in the

guidelines range. Even if Barber’s sentence had been at the lowest point in the

guideline range, the likelihood of a different result would be speculative without a

clear statement from the district court that, but for the mandatory nature of the

guidelines, the court would have imposed a lighter sentence. See id. Because it is

unclear whether the district court would have imposed a different sentence if it had

applied the Guidelines in an advisory fashion, Barber has not established a

reasonable probability that the result of his sentencing would have been different

but for the Booker error. See id. We need not apply the fourth prong of the plain

error test.



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                               III. CONCLUSION

      The district court did not clearly err when it denied the motion to suppress

and when it applied the enhancement for obstruction of justice. Barber also failed

to establish a reasonable probability that the Booker error affected the outcome of

his sentencing.

      AFFIRMED.




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