                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                               F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                    May 13, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                           No. 03-11175 and
                             No. 04-10933
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

KENDRICK JERMAINE FULTON, also known as Ken Fulton,

                                      Defendant-Appellant.

                        --------------------
          Appeals from the United States District Court
                for the Northern District of Texas
                      USDC No. 5:02-CR-94-2-C
                        --------------------

Before DAVIS, SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

     In No. 03-11175, Kendrick Jermaine Fulton appeals his

conviction and sentence, following a jury trial, for conspiracy

to possess with intent to distribute more than five kilograms of

cocaine and more than 50 kilograms of cocaine base, in violation

of 21 U.S.C. § 846.    The district court sentenced Fulton to 400

months in prison and to five years of supervised release.         In No.

04-10933, Fulton, proceeding pro se, appeals from the denial of

his pro se motion for new trial.     We consolidate the two appeals

sua sponte.    See FED. R. APP. P. 3(b)(2).


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                         No. 03-11175 and
                           No. 04-10933
                                -2-

A.   No. 03-11175

     Before trial began, Fulton asked to proceed pro se, and the

district court granted his request, but stated that his appointed

attorney would remain as stand-by counsel.   Fulton proceeded pro

se at a pre-trial hearing on the admissibility of wiretap

evidence.   (After the hearing, the court granted Fulton’s motion

to rescind his request to proceed pro se, and it reappointed his

attorney to represent him at trial.)   Fulton now contends that he

did not knowingly and voluntarily waive his right to counsel at

the pre-trial hearing, in that the court failed to warn him

adequately about the dangers and disadvantages of self-

representation as required by Faretta v. California, 422 U.S. 806

(1975).   The district court, however, warned Fulton that his case

was “complex,” that it would involve “complex issues” regarding

wiretap evidence, that it was in Fulton’s “best interest” to

continue with appointed counsel, and that he would have a

“daunting task” if he proceeded pro se at trial, where he would

be faced with a “very capable prosecutor.”   We have held that

similar warnings are sufficient under Faretta to warn a defendant

of the danger and disadvantages of proceeding pro se.     See United

States v. Joseph, 333 F.3d 587, 590 (5th Cir. 2003).

     Fulton argues that the district court abused its discretion

by requiring him to wear leg irons and a “stun belt” during

trial, violating his right to a presumption of innocence.    Fulton

wore the leg irons throughout the trial.    The stun belt was not

placed on him until the third day of trial, after the court
                           No. 03-11175 and
                             No. 04-10933
                                  -3-

stated that it had overheard a confrontation between Fulton and

marshals.    At that time, the prosecutor also described an

incident in her office, during which Fulton allegedly had

attempted to walk away while wearing handcuffs and leg irons and

had to be forcibly detained in the office.    (Fulton’s version of

this incident differed.)    The transcript of Fulton’s detention

hearing reflected that he had been a fugitive for seven months in

the instant case (before turning himself in) and that, in the

past, he had been charged with and convicted of assaults.     It

appears that one juror, at most, was aware that Fulton was

wearing leg irons and that none were aware that he was wearing a

stun belt.    Given the reasons cited by the court and reasons that

are evident from the record, the district court did not abuse its

discretion in requiring Fulton to wear the restraints.    See

Joseph, 333 F.3d at 590; United States v. Hope, 102 F.3d 114, 118

(5th Cir. 1996); United States v. Ellender, 947 F.2d 748, 760

(5th Cir. 1991).    For the first time on appeal, Fulton raises a

distinct constitutional argument regarding the stun belt:     that a

defendant’s anxiety about being electrically shocked impinges

upon his ability to confer with counsel and to participate

meaningfully in the trial.    See United States v. Durham, 287 F.3d

1297, 1304-05 (11th Cir. 2002) (discussing such an argument).

The record of the instant case, however, indicates that Fulton in

fact participated actively in his trial and neither expressed nor

exhibited anxiety about the stun belt.
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                           No. 04-10933
                                -4-

     Fulton argues that the district court abused it discretion

by rejecting his pro se request, following the close of evidence,

to recall Government witnesses for further cross-examination.

The court offered Fulton an opportunity to explain how additional

testimony would be relevant and helpful.    We conclude that the

district court did not abuse its discretion in concluding that

additional cross-examination was not warranted.       See United

States v. Masat, 948 F.3d 923, 933 (5th Cir. 1992).

     Fulton maintains that the district court clearly erred in

calculating his criminal history score, when it added two

criminal history points because the instant offense was committed

while Fulton was serving a term of deferred adjudication for a

1992 conviction.   See U.S.S.G. § 4A1.1(d).   Testimony by a DEA

agent at Fulton’s sentencing and by Fulton’s codefendant Edgar

Joe Cofer at trial, as well as unrebutted information in Fulton’s

Presentence Report (“PSR”), reflected that Fulton had been

selling cocaine since the early 1990s.   No clear error is

apparent.   See United States v. Infante,      F.3d        (5th Cir.

Mar. 21, 2005), 2005 WL 639619 at *12 n.14; United States v.

Fitzgerald, 89 F.3d 218, 223 (5th Cir. 1996); U.S.S.G. § 6A1.3.

     Finally, Fulton contends for the first time on appeal that,

under Blakely v. Washington, 124 S. Ct. 2531 (2004), Sentencing

Guidelines increases imposed in his case violated his Sixth

Amendment right to trial by jury because the factors upon which

those increases were based were not submitted to the jury.
                          No. 03-11175 and
                            No. 04-10933
                                 -5-

In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme

Court held that, “‘[o]ther than the fact of a prior conviction,

any fact that increases the penalty beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond

a reasonable doubt.’”   In Blakely, the Supreme Court held that

“the ‘statutory maximum’ for Apprendi purposes is the maximum

sentence a judge may impose solely on the basis of the facts

reflected in the jury verdict or admitted by the defendant.”       124

S. Ct. at 2537.   In United States v. Booker, 125 S. Ct. 738, 756

(2005), the Supreme Court extended the Blakely holding to the

Guidelines, holding that “[a]ny fact (other than a prior

conviction) which is necessary to support a sentence authorized

by the facts established by a plea of guilty or a jury verdict

must be admitted by the defendant or proved beyond a reasonable

doubt.”   The Court excised 18 U.S.C. § 3553(b)(1) of the

Sentencing Reform Act, rendering the guidelines effectively

advisory rather than mandatory.     Id. at 764-65.   Under Booker,

district courts are still required to consider the guidelines,

and Booker applies to this direct appeal.     See id. at 757-69.     A

challenge under Blakely and Booker that is raised for the first

time on appeal, however, is reviewable only for plain error.

United States v. Mares,      F.3d       (5th Cir. Mar. 4, 2005),

2005 WL 503715 at *8.

     Although the district court erred by enhancing Fulton’s

guidelines sentence based on factors not submitted to the jury,

the error was not preserved in the district court and Fulton
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                            No. 04-10933
                                 -6-

cannot demonstrate plin error on appeal unless he shows that the

error affected his “substantial rights.”     Id.   Because Fulton has

not identified anything in the record to suggest that the

district court would have sentenced him differently under the

pre-Booker advisory Guidelines regime, Fulton has not shown plain

error.   Id. at *9.   Fulton’s contention that his sentence

violated Apprendi itself because the jury returned a “general

verdict” that did not address drug quantity is belied by the

record, which reflects that the district court specifically

instructed the jury that, to find Fulton guilty, it was required

to find that the offense involved the drug quantities charged in

the indictment.

     The conviction and sentence are AFFIRMED.

B.   No. 04-10933

     In Fulton’s pro se FED. R. CRIM. P. 33 motion for a new

trial, which was filed several months after Fulton’s trial and

sentencing, Fulton argued that the Government had obtained the

wiretap evidence illegally and that it used a “recycled”

affidavit.   The district court denied the motion without

requiring the Government to file a response.

     This court reviews the denial of a motion for new trial for

abuse of discretion.    Infante, 2005 WL 639619 at *7.   Such

motions are “‘disfavor[ed]’” and “‘view[ed] with great caution.’”

Id. (citation omitted).

     In his appellate brief, Fulton focuses on “newly discovered

evidence” in the form of polygraph results from three tests of
                          No. 03-11175 and
                            No. 04-10933
                                 -7-

his codefendant Cofer, which he allegedly learned about from

Cofer’s mother.    He has not provided a copy of the results or

specifically described their contents.    (In the district court,

Fulton made only cursory reference to this evidence.)    According

to Fulton, the polygraph results would show that the affidavit

offered in support of the wiretap application contained

inaccurate information and would have made the wiretap evidence

inadmissible.    A review of the wiretap application and its

supporting affidavit reflect that the alleged newly discovered

evidence is immaterial and that, were it introduced at a new

trial, it would probably not produce an acquittal.     See Infante,

2005 WL 639619 at *7.    The district court did not abuse its

discretion in denying Fulton’s motion for new trial.     Id.

     We AFFIRM the district court’s order denying Fulton’s motion

for new trial.    Fulton’s pro se motion for the production of

grand jury transcripts is DENIED.

     CONVICTION AND SENTENCE AFFIRMED; DENIAL OF MOTION FOR NEW

TRIAL AFFIRMED; MOTION DENIED.
