                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 03-4563



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


SAMARIA NORRIS,

                                            Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.   Cameron McGowan Currie, District
Judge. (CR-02-1171)


Submitted:   June 15, 2005                 Decided:   July 13, 2005


Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Jack B. Swerling, LAW OFFICES OF JACK B. SWERLING, Columbia, South
Carolina, for Appellant. J. Strom Thurmond, Jr., United States
Attorney, Marshall Prince, Assistant United States Attorney, Jimmie
C. Ewing, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

                Samaria Norris was convicted by a jury of conspiracy to

commit bank robbery, in violation of 18 U.S.C. §§ 371, 2113(a)

(2000) (Count One); bank robbery, in violation of 18 U.S.C. § 2113

(a) (2000) (Count Four); two counts of making a false statement to

a law enforcement officers, in violation of 18 U.S.C. § 1001 (2000)

(Counts Five and Six); and structuring transactions to evade

reporting requirements, in violation of 31 U.S.C. §§ 5324(a)(3),

(d)(1) (2000) (Count Seven).1               She was sentenced to 60 months’

imprisonment each on Counts One, Five, Six, and Seven, and 136

months’ imprisonment on Count Four, all to run concurrently, three

years’        supervised   release,   and    restitution   in     the   amount   of

$121,125.        Norris appeals her conviction and sentence.

                Norris contends that the trial court erroneously allowed

the Government to strike an African-American juror, in violation of

Batson v. Kentucky, 476 U.S. 79 (1986).             Great deference is given

to   a       district   court’s   determination    of   whether    a    peremptory

challenge was based on a discriminatory motive, and the court’s

ruling is reviewed for clear error.            Jones v. Plaster, 57 F.3d 417,

421 (4th Cir. 1995). Generally, a Batson challenge consists of

three steps: (1) the defendant makes a prima facie case; (2) the


         1
      Norris was indicted on nine counts stemming from bank
robberies in September 2000 and July 2001. Norris was found guilty
of the five counts related to the July 2001 robbery, but was
acquitted of the remaining four counts related to the September
2000 robbery or to passing counterfeit currency.

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Government offers a race neutral explanation; and (3) the trial

court decides whether the defendant has carried her burden and

proved purposeful discrimination.            United States v. Barnette, 211

F.3d 803, 812 (4th Cir. 2000).         “Once a prosecutor has offered a

race-neutral explanation for the peremptory challenges and the

trial court has ruled on the ultimate question of intentional

discrimination, the preliminary issue of whether the defendant had

made a prima facie showing becomes moot.”              Hernandez v. New York,

500 U.S. 352, 359 (1991).      “At this step of the inquiry, the issue

is the facial validity of the prosecutor’s explanation.                Unless a

discriminatory intent is inherent in the prosecutor’s explanation,

the reason offered will be deemed race neutral.”              Id. at 360.

           The Government’s proffered explanation was that it struck

the juror in question based on its belief that he might be biased

as a result of his brother’s pending criminal charge. No empaneled

juror had a pending criminal charge or family member with a pending

criminal   charge.       Accordingly,        the   Government’s      explanation

satisfies this second step.           Turning to the third step in the

inquiry, we review only for clear error the trial court’s finding

that   Norris   failed   to   carry    her    burden    to   prove   purposeful

discrimination.      Jones v. Plaster, 57 F.3d 417, 421 (4th Cir.

1995).   Norris offered no evidence of racial motivation.               Based on

our review of the record in this case, the district court did not

clearly err in denying Norris’ Batson motion.


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           Norris   next    argues    that    the   trial   court    erred    by

disallowing   her   to   question    the     government’s   witness,      Sherry

Kinley,   concerning     Kinley’s    possible    involvement    in    a   prior

unrelated robbery, in order to challenge her credibility.                 Norris

claims, through conclusory and unsupported allegations, that under

Fed. R. Evid. 404(b), evidence of Kinley’s involvement in a prior

robbery would somehow have negated Norris’ guilt.                   A district

court's exclusion of evidence under the Federal Rules of Evidence

is reviewed for an abuse of discretion.              See United States v.

Francisco, 35 F.3d 116, 118 (4th Cir. 1994).          The district court's

evidentiary rulings will not be reversed unless they are “arbitrary

or irrational.”     See United States v. Powers, 59 F.3d 1460, 1464

(4th Cir. 1995).    After careful review of the record, we conclude

that the district court did not abuse its discretion in excluding

the proffered evidence.

           Norris also appeals her sentence, arguing the district

court erred in applying enhancements to her sentence based on facts

found by the court and not by the jury in violation of Blakely v.

Washington, 124 S. Ct. 2531 (2004), and United States v. Booker,

125 S. Ct. 738 (2005).        Because Norris did not object to her

sentence in the district court based on Blakely or Booker, our

review is for plain error.     United States v. Hughes, 401 F.3d 540,

547 (4th Cir. 2005).        To demonstrate plain error, Norris must

establish that error occurred, that it was plain, and that it


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affected her substantial rights.             Id. at 547-48.      If a defendant

establishes        these     requirements,      the   Court’s   “discretion    is

appropriately exercised only when failure to do so would result in

a miscarriage of justice, such as when the defendant is actually

innocent or the error seriously affects the fairness, integrity or

public reputation of judicial proceedings.”               Id. at 555 (internal

quotation marks and citation omitted).

            In Booker, the Supreme Court held that the mandatory

manner in which the federal sentencing guidelines required courts

to impose sentencing enhancements based on facts found by the court

by a preponderance of the evidence violated the Sixth Amendment.

125 S. Ct. at 746, 750.            The Court remedied the constitutional

violation     by     severing     two   statutory      provisions,    18   U.S.C.

§§ 3553(b)(1), 3742(e) (West 2000 & Supp. 2004), thereby making the

guidelines advisory.          Hughes, 401 F.3d at 546.

            In this case, the district court increased Norris’ base

offense     level     from     twenty   to   thirty-two     based    on    several

enhancements.       Some of these enhancements were appropriately based

on facts found by the jury—for example, a two-level enhancement was

applied for taking money from a financial institution, which was

based on the jury finding Norris guilty of taking “monies belonging

to SouthTrust Bank and insured by the Federal Deposit Insurance

Corporation.”        However, some of the enhancements were based on

facts not found by the jury or admitted by Norris.                   For example,


                                        - 5 -
the jury did not find that the robbery involved a threat of death

or physical restraint of an individual, each of which resulted in

a two-level enhancement based on the district court’s factual

findings.

            Without the enhancements based on judge found facts,

Norris’ total combined offense level for all counts would be 24,

placing her guideline range at 51 to 63 months in prison.                 The

court’s calculation at sentencing gave Norris a sentencing range of

121 to 151 months in prison.           Norris’ 136-month sentence thus

exceeded the sentence that could have been imposed based only on the

facts found by the jury.2 Accordingly, Because Norris’ sentence was

the result of the Sixth Amendment violation, we conclude that her

substantial rights were affected. Therefore, in light of Booker and

Hughes, we vacate the sentence and remand the case for resentencing

consistent with Booker and Hughes.

            Although   the   Sentencing     Guidelines   are   no      longer

mandatory, Booker makes clear that a sentencing court must still

“consult    [the]   Guidelines   and    take   them   into   account     when

sentencing.”    125 S. Ct. at 767.        On remand, the district court

should first determine the appropriate sentencing range under the


     2
      Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Norris’ sentencing.     See generally Johnson v. United
States, 520 U.S. 461, 468 (1997) (stating that an error is “plain”
if “the law at the time of trial was settled and clearly contrary
to the law at the time of appeal”).

                                  - 6 -
Guidelines,   making   all   factual   findings   appropriate   for   that

determination.   See United States v. Hughes, 401 F.3d 540, 546 (4th

Cir. 2005) (applying Booker on plain error review).             The court

should consider this sentencing range along with the other factors

described in 18 U.S.C. § 3553(a) (2000), and then impose a sentence.

Id.   If that sentence falls outside the Guidelines range, the court

should explain its reasons for the departure as required by 18

U.S.C. § 3553(c)(2) (2000).     Id.    The sentence must be “within the

statutorily prescribed range and . . . reasonable.”      Id. at 546-47.

           In sum, while we affirm the convictions, we vacate Norris’

sentence and remand the case for resentencing consistent with Booker

and Hughes.   We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

                                                     AFFIRMED IN PART,
                                         VACATED IN PART, AND REMANDED




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