                                                                    [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS
                                                                             FILED
                           FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                             ________________________ ELEVENTH CIRCUIT
                                                                       NOV 2, 2006
                                   No. 05-10869                      THOMAS K. KAHN
                             ________________________                    CLERK


                          D. C. Docket No. 03-80091-CR-JCP

UNITED STATES OF AMERICA,


                                                                       Plaintiff-Appellee,

                                          versus

PATRICK KNIGHTON,

                                                                    Defendant-Appellant.


                             ________________________

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

                                  (November 2, 2006)

Before PRYOR, FAY and REAVLEY,* Circuit Judges.

PER CURIAM:


       *
        Honorable Thomas M. Reavley, United States Circuit Judge for the United States Court
of Appeals for the Fifth Circuit, sitting by designation.
      Patrick Knighton appeals his convictions for bank robbery and conspiracy to

commit bank robbery and his sentences. Knighton challenges the sufficiency of

the evidence as to one count of the indictment, an evidentiary ruling, a refusal to

give a jury instruction, and three decisions related to sentencing. We affirm.

                               I. BACKGROUND

      In 2003, Knighton was arrested and indicted on charges arising from bank

robberies committed in Greenacres, Riviera Beach, and Boynton Beach, Florida on

November 19, 2002, December 13, 2002, December 31, 2002, and June 19, 2003.

Knighton pleaded not guilty and proceeded to trial.

      As to the count that Knighton challenges regarding sufficiency, the

government presented evidence that on June 19, 2003, Peter Bueza, a bank

employee for Bank of America, opened the drive-in teller building and was

walking to the main bank when he was attacked by a man in a zip-up garage suit

with a towel over his face. The perpetrator threatened Bueza and dragged him

back to the drive-in teller building where another man joined him. The two

robbers then stole approximately $22,000. Bueza reported that the man who first

attacked him was approximately 5'10" to 5' 11" in height and weighed

approximately 170 to 180 pounds. Both perpetrators punched Bueza in the face or

jaw, and Bueza suffered a fractured jaw. During the robbery, Bueza heard a beep,



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like the sound from a Nextel phone. Bueza also activated the silent alarm.

      FBI Agent Ruiz de Gamboa responded to the alarm and recovered a cell

phone in the area of the assault. No fingerprints were recovered, but the cell phone

was registered to Knighton. In addition, a two-door, white Toyota Camry with

gold rims, similar to a car that Knighton drove, was observed near the scene of the

robbery.

      As part of its case in chief, the government also presented evidence, under

Federal Rule of Evidence 404(b), of admissions made by Knighton to

coconspirators regarding an earlier robbery of a Wachovia bank on March 12,

2002, for which Knighton was not charged. Teresa Heller, a Wachovia teller who

was present during the robbery, testified to the fact and manner of the robbery.

      In his defense, Knighton presented the testimonies of two of his girlfriends

that he had lost his cell phone before the date of the robbery and that he was in bed

with one of the women during the robbery. Knighton also presented the testimony

of another girlfriend that, although she owned a white vehicle similar to the one

seen at the robbery and Knighton used the car on occasion, he did not have access

to the vehicle when the robbery occurred.

      At the close of the evidence, Knighton requested that the district court give

the following jury instruction on the reasonable doubt standard:



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      If the evidence gives equal or nearly equal circumstantial support to
      competing explanations for an element of a charge, one consistent
      with the Government's theory of guilt, but the other an equally
      plausible innocent reason for the same facts as offered by the defense,
      then you must necessarily entertain a reasonable doubt as to the truth
      of an element of the charge, and therefore, find the defendant not
      guilty.

The government objected, and the district court declined to give the instruction.

      Knighton was convicted on all seven counts. At sentencing, the district court

sentenced Knighton to 360 months of imprisonment with three years of supervised

release. Knighton was ordered to pay a special assessment of $700 and restitution

in the amount of $78,950.42.

                           II. STANDARD OF REVIEW

      This appeal involves multiple standards of review. Whether sufficient

evidence was presented at trial to support Knighton’s conviction is a question of

law subject to de novo review. United States v. Diaz, 248 F.3d 1065, 1084 (11th

Cir. 2001). “The evidence is viewed in the light most favorable to the government

and all reasonable inferences and credibility choices are made in the government’s

favor.” Id. “We review the district court’s decisions on the admissibility of

evidence of uncharged misconduct under Rule 404(b) for abuse of discretion.”

United States v. Giordano, 261 F.3d 1134, 1140 (11th Cir. 2001). “We review the

district court’s failure to provide additional jury instructions for abuse of



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discretion.” United States v. Miles, 290 F.3d 1341, 1354 (11th Cir. 2002). The

Court reviews questions of law arising under the Sentencing Guidelines de novo

and findings of fact for clear error. United States v. Crawford, 407 F.3d 1174,

1177-78 (11th Cir. 2005).

                                 IV. DISCUSSION

      Knighton raises six arguments on appeal. First, Knighton argues that the

evidence is not sufficient to support his conviction for the June 19, 2003, robbery.

Second, Knighton argues that it was an abuse of discretion for the district court to

allow the Rule 404(b) testimony of Teresa Heller regarding the uncharged robbery

of the Wachovia bank. Third, Knighton argues that the district court abused its

discretion when it refused to give his proposed jury instruction. Fourth, Knighton

argues that the district court improperly calculated his sentencing range. Fifth,

Knighton argues that the district court erroneously calculated the amount of the

loss. Sixth, Knighton argues that the district court erroneously denied him the right

to confront witnesses at the sentencing hearing. We address each argument in turn.

               A. The Evidence Is Sufficient to Support the Verdict.

      Knighton argues that the evidence was not sufficient to sustain a conviction

for the June 19, 2003, robbery because the evidence established only that “the

robbery was committed by an individual who is taller and thinner than Mr.



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Knighton. And, that a white Camry which is similar to the one driven by Mr.

Knighton’s girlfriend may have been spotted at the robbery.” Knighton argues that

the discovery of his cell phone at the scene of the robbery is immaterial because

one witness testified that, before the robbery, Knighton told her his cell phone had

been lost or stolen, and another witness testified that, at the time of the robbery,

Knighton was in bed asleep with her. These arguments fail.

      The evidence established that a cell phone registered to Knighton was found

at the crime scene and that a vehicle similar to a vehicle registered to Knighton was

seen at or fleeing the crime scene. Evidence was also presented that the

perpetrators used a two-way communication device during the robbery, which was

the same manner of communication used by Knighton during the other robberies.

The jury was entitled to disbelieve both the evidence presented by Knighton that he

had lost his cell phone and the testimony of Knighton’s girlfriend that he was with

her during the robbery.

                  B. The 404(b) Evidence was Properly Admitted.

      Knighton next argues that the district court erred when it admitted the

testimony of Teresa Heller regarding an uncharged robbery of a Wachovia Bank

for two reasons. Knighton argues that the government gave insufficient notice of

its intent to offer the evidence and that the probative value of the evidence was



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outweighed by its undue prejudice. These arguments fail.

      When the government intends to introduce Rule 404(b) evidence, that

evidence is admissible for limited purposes “provided that upon request by the

accused, the prosecution in a criminal case shall provide reasonable notice in

advance of trial . . . of the general nature of any such evidence it intends to

introduce at trial.” Fed. R. Evid. 404(b). The notice of the government, provided

to Knighton five months before trial, stated that the government intended to

introduce “evidence and testimony” with respect to “Statements by Knighton that

he robbed the Wachovia Bank . . . at 3700 Broadway, Riviera Beach, Florida.”

The notice of the government informed Knighton of its intent to offer evidence

regarding the Wachovia Bank robbery and gave a description of the robbery,

including the amount of money stolen. This notice was adequate that the testimony

of Heller might be presented. Rule 404(b) requires notice of the “general nature”

of the evidence, not a proffer of what will be presented a trial.

      The testimony of Heller, which described the Wachovia Bank robbery, was

properly admitted as relevant and not unduly prejudicial. Two coconspirators of

Knighton’s testified that Knighton had admitted to them that he robbed the

Wachovia Bank. Because Knighton robbed the same bank several months later, a

crime for which he was being tried, the testimony of Heller regarding the



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commission of the earlier robbery was probative of Knighton’s knowledge of the

bank, his intent to rob the bank, and his modus operandi when robbing banks. The

district court did not abuse its discretion in admitting this evidence.

    C. The District Court Correctly Refused to Give the Requested Instruction.

      Knighton argues that the district court erroneously refused to give the jury

instruction that Knighton requested. This argument fails. “We will reverse a trial

judge’s refusal of a requested instruction only if the rejected instruction was

substantively correct; the actual charge to the jury did not substantially cover the

proposed instruction, and the failure to give it substantially impaired the

defendant’s ability to present an effective defense.” United States v. Orr, 825 F.2d

1537, 1542 (11th Cir. 1987).

      Knighton’s proposed jury instruction was akin to a “reasonable hypothesis”

instruction, or an instruction on the proposition that the proof must be “inconsistent

with every reasonable hypothesis of innocence.” United States v. Johnson, 713

F.2d 633, 653 (11th Cir. 1983). The instruction was confusing and unnecessary

when the jury, as here, was properly instructed regarding reasonable doubt. See id.

(quoting United States v. Stokes, 471 F.2d 1318, 1321 (5th Cir. 1973) (citing

Holland v. United States, 348 U.S. 121, 137, 75 S. Ct. 127, 140 (1954))). The

district court did not abuse its discretion when it refused to give Knighton’s



                                           8
proposed instruction.

                D. The Sentencing Range Was Properly Calculated.

      Knighton argues that his sentence violated Blakely and Apprendi because

the district court imposed enhancements that were not found by a jury. This

argument is frivolous. The district court understood that the guidelines were

advisory. See United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).

There was no error.

                E. The District Court Correctly Calculated the Loss.

      Knighton complains that the district court did not properly determine the

amount of the loss and the restitution owed. Knighton argues that the amount of

restitution was based on the pre-sentence investigation report only and that the

district court erroneously failed to hold a hearing as required by section 3664(d)(5)

of Title 18. These arguments fail.

      Because Knighton failed to object to the calculations in the pre-sentence

investigation report, the district court was entitled to rely on the undisputed facts in

the report. United States v. Hedges, 175 F.3d 1312, 1315 (11th Cir. 1999)

(“Hedges did not object to the statements in the PSI on which the district court

relied. Thus, these statements were undisputed, and the court was permitted to rely

on them despite the absence of supporting evidence.”). The district court correctly



                                            9
calculated the loss based on that report. In addition, section 3664(d)(5) requires a

hearing “[i]f the victim’s losses are not ascertainable by the date that is 10 days

prior to sentencing.” 18 U.S.C. § 3664(d)(5). The district court was not required

to hold a hearing because the losses were ascertainable and listed in the

pre-sentence report before the hearing.

      F. Knighton Did not Have a Right to Confront Witnesses at Sentencing.

      Finally, Knighton asserts that the district court violated his right to confront

the witnesses against him at sentencing. This argument is foreclosed by our

precedent. “The right to confrontation is not a sentencing right.” United States v.

Cantellano, 430 F.3d 1142, 1146 (11th Cir. 2005).

                                IV. CONCLUSION

      Knighton’s convictions and sentences are

      AFFIRMED.




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