                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                   May 27, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 03-31163
                          Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

TYRONE JONES,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
              for the Eastern District of Louisiana
                     USDC No. 02-CR-299-All-I
                       --------------------

Before JONES, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:*

     Tyrone Jones appeals his jury conviction for being a felon

in possession of a firearm in violation of 18 U.S.C. § 922(g)(1)

and for possession of a firearm after entry of a domestic

violence restraining order in violation of 18 U.S.C. § 922(g)(8).

Jones argues that the district court abused its discretion in

allowing a police officer to describe the content of an anonymous

telephone tip that led them to Jones.   Jones has not shown that

the district court abused its discretion in admitting this


     *
       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this opinion should not be published and is not precedent except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. 03-31163
                                  -2-

evidence as the testimony was not admitted for the truth of the

matter asserted, but rather to explain what the officers did in

response to the call.     See United States v. Gonzalez, 967 F.2d

1032, 1035 (5th Cir. 1992).    Further, the anonymous tip did not

directly identify Jones and, therefore, it was not prejudicial

and was admissible.     See United States v. Carrillo, 20 F.3d 617,

619 (5th Cir. 1994).    Because admission of the testimony

concerning the anonymous tip was not an abuse of discretion,

Jones has not shown that the district court’s admission of

Officer Coleman’s testimony concerning the telephone tip or the

prosecutor’s reference to the tip in closing argument was plain

error.    See United States v. Miranda, 248 F.3d 434, 443 (5th Cir.

2001).

     Jones argues that the admission of the testimony concerning

the anonymous tip violated his rights under the Confrontation

Clause.    Because the evidence was not admitted for the truth of

the matter asserted, the Confrontation Clause did not bar the

admission of the statement for purposes other than establishing

the truth of the matter asserted.     See Crawford v. Washington,

541 U.S. 36, 59 n.9 (2004).

     Jones argues that the district court abused its discretion

in allowing the Government to impeach Crystal Thomas with the

testimony of Officer Lejon Roberts concerning her prior

inconsistent statement.    Thomas testified that she had never seen

Jones with a firearm.    This testimony was clearly inconsistent
                             No. 03-31163
                                  -3-

with her prior statement to police that she had seen Jones with a

firearm on July 16, 2001.    After the prosecutor questioned Thomas

about the prior inconsistent statement, the district court gave

Thomas an opportunity to explain or deny the statement under

FED. R. EVID. 613(b).   Thomas testified that she made the prior

statement because the police threatened her.      At that point,

Officer Roberts’s testimony was admissible to show that Thomas

voluntarily made this statement to him and that he did not

threatened or coerced her into making this statement.      See United

States v. Lopez, 979 F.2d 1024, 1033-34 (5th Cir. 1992); see also

United States v. Sisto, 534 F.2d 616, 622 (5th Cir. 1976).         The

admission of the testimony thus was not prohibited by FED.

R. EVID. 608.    See Lopez, 979 F.2d at 1024.

     Jones argues that the district court abused its discretion

in admitting the testimony of Alcohol Tobacco and Firearms Agent

Charles Smith concerning Officer White’s prior statement to Smith

a few hours after Jones’s arrest regarding the anonymous

telephone tip.    Jones has not shown that the district court

abused its discretion in admitting this testimony as he did not

specifically argue at trial that Officer White’s statement

postdated the motion to fabricate.    However, any error in

admitting this testimony was harmless.      See United States v.

Skipper, 74 F.3d 608, 612 (5th Cir. 1996).      Defense counsel

brought out on cross-examination that Agent Smith did not

personally observe Jones’s arrest.    Given that Officer Smith had

already testified concerning the anonymous tip, Agent Smith’s
                             No. 03-31163
                                  -4-

testimony regarding Officer Smith’s statement was cumulative

evidence that did not cause any further prejudice to Jones.      See

id.

      Jones argues that he was prejudiced by Agent Smith’s

testimony that firearms offenses are accepted for federal

prosecution only if the defendant has a serious prior felony

conviction.   Jones has not shown that the admission of this

testimony was plain error.    See Miranda, 248 F.3d at 443.    Jones

testified that he had a prior conviction for simple burglary.

Therefore, the jury was aware of the nature of Jones’s prior

conviction.   Further, the district court instructed the jury that

it should not consider Jones’s prior conviction as evidence that

he committed the offenses for which he was currently on trial.

Jurors are presumed to follow their instructions.    United States

v. Wyly, 193 F.3d 289, 299 (5th Cir. 1999).   Therefore, Jones has

not shown that admission of this testimony was clear or plain

error that affected his substantial rights.    See Miranda,

248 F.3d at 443.

      Jones argues that the trial court’s cumulative errors denied

him a fair trial.   The cumulative error rule has no application

to the instant case because Jones has not identified any

individual instances of error.    See United States v. Villarreal,

324 F.3d 319, 328 (5th Cir. 2003).

      Jones argues that the sentencing enhancements and departure

made by the district court violated his Fifth and Sixth Amendment

rights, relying on Blakely v. Washington, 124 S. Ct. 2531 (2004).
                           No. 03-31163
                                -5-

In the district court, Jones argued that his sentence should not

be enhanced under U.S.S.G. § 2K2.1(b)(5) based on his possession

of a firearm in connection with another felony offense,

possession of cocaine base, because he was acquitted by the jury

of possession of cocaine base.   Although Jones did not expressly

argue that this enhancement violated his Sixth Amendment rights

or cite Apprendi v. New Jersey, 530 U.S. 466 (2000), or Blakely,

Jones’s argument was sufficient to preserve this issue for review

on appeal.   See United States v. Akpan, ___ F.3d ___, No. 03-

20875, 2005 WL 852416 (5th Cir. Apr. 14, 2005).   The Government

has not met its burden of proof to show that the district court’s

enhancement of Jones’s sentence pursuant to § 2K2.1(b)(5) was

harmless error.   See id. Because Jones preserved his objection to

the sentencing enhancement under § 2K2.1(b)(5), we vacate Jones’s

sentence and remand for resentencing.**




     **
        Because we vacate and remand Jones’s entire sentence, we
need not and do not reach his other arguments of sentencing
errors; rather, we leave to the district court the decision
whether, in its discretion, it will impose the identical sentence
with the identical departures or enhancements, or both. If the
district court judge reimposes the same sentencing adjustments
upon resentencing, Jones may challenge them on appeal after
remand.
