                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT  OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              APRIL 27, 2009
                              No. 07-12660
                                                            THOMAS K. KAHN
                        ________________________
                                                                 CLERK

                     D. C. Docket No. 04-10009-CR-SH

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee
                                                                  Cross-Appellant,

                                    versus

JAMES HENDRICK,

                                                           Defendant-Appellant
                                                               Cross-Appellee.

                        ________________________

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

                               (April 27, 2009)

Before BIRCH, DUBINA and WILSON, Circuit Judges.

PER CURIAM:

     James Hendrick was convicted of conspiracy, 18 U.S.C. § 371; obstructing
justice, 18 U.S.C. § 1503(a); and witness tampering, 18 U.S.C. § 1512(b)(1)).

Instead of sentencing Hendrick to prison within the applicable guidelines range,

the district court imposed a sentence of five years’ probation; directed Hendrick to

pay a $50,000 fine; prohibited him from participating in any business related to

government contracting or lobbying; and ordered him to perform 2,500 hours of

community service at a rate of 500 hours per year.

      Hendrick appeals his convictions, challenging the sufficiency of the

evidence and some of the court’s evidentiary rulings. The government cross-

appeals Hendrick’s sentence, arguing that the sentence is both procedurally and

substantively unreasonable. We address each appeal in turn.

                                  I. C ONVICTIONS

      Hendrick argues that the government did not present sufficient evidence at

trial to prove that he conspired with Jack London to obstruct justice or to tamper

with a witness. In a related argument, he contends that the government failed to

meet its burden of proof as to these charges. He further argues that the district

court abused its discretion by admitting into evidence: (1) the lay opinion

testimony of Randall Hilliard, who received immunity from prosecution; (2) the

surprise expert testimony of former IRS Agent Dennis Donnell; and (3) the hearsay

testimony of Elaine London, Jack London’s widow.



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      After carefully reviewing the record, studying the parties’ briefs, and having

the benefit of oral argument, we conclude that the government presented sufficient

evidence to support Hendrick’s convictions. We further conclude that the district

court did not abuse its discretion by admitting the testimony of Hilliard, Donnell,

or Elaine London. Thus, we affirm all of Hendrick’s convictions.

                                   II. S ENTENCE

      The government cross-appeals Hendrick’s below-guidelines sentence. After

carefully reviewing the record and considering the arguments that the parties

briefed and orally argued, we agree with the government that the sentence is both

procedurally and substantively unreasonable. We accordingly vacate it and

remand for resentencing.

                                 III. C ONCLUSION

      We AFFIRM all of Hendrick’s convictions. We VACATE his sentence

and REMAND for resentencing.




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