                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                     FILED
                       ________________________         U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              October 27, 2006
                              No. 04-16563
                                                           THOMAS K. KAHN
                          Non-Argument Calendar                   CLERK
                        ________________________

                  D. C. Docket No. 04-00006-CR-T-30EAJ

UNITED STATES OF AMERICA,


                                                            Plaintiff-Appellee,

                                   versus

EDDIE LEE WOOTEN,

                                                         Defendant-Appellant.


                        ________________________

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

                             (October 27, 2006)

Before TJOFLAT, BIRCH and PRYOR, Circuit Judges.

PER CURIAM:

     Eddie Lee Wooten appeals his convictions and sentences for drug and
firearm offenses. Wooten challenges his convictions on three grounds:

prosecutorial misconduct, insufficient evidence, and transcript omissions. We

affirm Wooten’s convictions. Because the district court applied the Sentencing

Guidelines as mandatory with respect to Counts One through Six and Counts

Eight and Nine, we vacate Wooten’s sentences as to those counts and remand for

resentencing.

                              I. BACKGROUND

      On October 1, 2003, police informant Andre McNeal attempted to purchase

crack cocaine from Wooten in a controlled buy conducted by the Lakeland Police

Department. Wooten did not have any crack at the time, but he sold a .44 caliber

handgun to McNeal. The entire conversation between McNeal and Wooten was

recorded, and McNeal gave the weapon to the police.

      On October 2, McNeal purchased $400 worth of crack cocaine from

Wooten. Their conversation was again recorded. McNeal made further recorded

purchases of crack from Wooten, on November 13 and December 9, and a

recorded purchase of crack and a handgun from Wooten on January 5, 2004.

      On January 9, police executed a search warrant on Wooten’s trailer and

found three handguns, crack cocaine, and currency. A license plate on the wall

said “Goldie,” Wooten’s nickname. Wooten, who was present during the search,

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had answered the door with one handgun in his hand. He denied owning one of

the handguns and threw a third into the yard, but he admitted that he kept guns in

the trailer for protection. Wooten also admitted that the crack found in his room

belonged to him.

      A federal grand jury indicted Wooten on ten counts: possession of a firearm

by a convicted felon, 18 U.S.C. §§ 922(g)(1), 924(e) (Counts 1, 6, 9); distribution

of five grams or more of crack cocaine, 21 U.S.C. § 841(b)(1)(B) (Counts 2, 8);

distribution of crack cocaine, 21 U.S.C. § 841(b)(1)(C) (Counts 3, 4, 5); carrying a

firearm during a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)(1) (Count 7);

and possession of three firearms in furtherance of a drug trafficking crime, 18

U.S.C. § 924(c)(1)(A)(I), (C)(I) (Count 10).

      At trial, the government presented a variety of evidence. The recorded

conversations were played for the jury. McNeal testified for the government, and

on cross-examination he admitted that he expected favorable sentencing

recommendations from the government on his own plea to possession of a firearm

by a convicted felon. Detective Nicholas Marolda of the Lakeland Police

Department testified that he had known Wooten for ten years; no documents

suggested that Wooten lived in the trailer; and another person leased and resided

in the trailer. Marolda also admitted that he did not know the basis for each of the

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payments from the police department to McNeal. Marolda admitted that he did

not have an expert verify that it was Wooten’s voice on the recordings, the bags of

crack cocaine and the firearms were not fingerprinted, clothing for both men and

women was recovered from Wooten’s room, and some of the crack cocaine was

found in a woman’s shoes. Other law enforcement officers and technicians also

testified for the government. Detective Shawn Hohnstreiter testified that during

the raid on Wooten’s trailer, Shirley Reddick told him that the women’s clothing

and shoes were hers and she lived there. Detective Derek Reed Gulledge testified

that Christopher Edenfield, who leased and lived in the trailer, was also arrested

for cocaine possession during the raid.

      In his closing argument, Wooten argued that the government had failed to

meet its burden of proving his guilt beyond a reasonable doubt. In its rebuttal, the

government stated, “I’ll make a brief statement in rebuttal of counsel’s argument,

as there is no evidence to rebut the Government’s evidence.” The court overruled

Wooten’s objection and motion to strike and instructed the jury on the burden of

proof. The government also replayed parts of the recordings, which were not

again transcribed into the record. The government argued that it did not need a

voice recognition expert because the testimony of McLean and Marolda proved

that it was Wooten’s voice. During the jury charge, the court again instructed the

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jury that the government bore the burden of proof, Wooten was not obligated to

present evidence, and the jury should not consider his failure to do so in arriving at

a verdict. The jury convicted Wooten on all counts.

      The PSI set the base offense level at 26 and added an 11-point enhancement

for Wooten’s career offender status. Sentencing Guidelines § 4B1.1. The PSI

provided a criminal history category of VI, which resulted in a Guideline range of

360 months to life imprisonment. Wooten objected to the application of the

Guidelines as mandatory but did not object to the information in the PSI. On

December 2, 2004, the court imposed a sentence of eight concurrent terms of 360

months for Counts 1 through 6, 8, and 9; a 60-month term to run consecutively for

Count 7; and a 300-month term to run consecutively for Count 10.

                         II. STANDARDS OF REVIEW

      We review issues of prosecutorial misconduct de novo. United States v.

Noriega, 117 F.3d 1206, 1218 (11th Cir. 1997). We review a sentence for Sixth

Amendment violations de novo, but reverse only for harmful error. United States

v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). We review the sufficiency of the

evidence de novo, and we view the evidence “in the light most favorable to the

government, with all reasonable inferences and credibility choices made in the

government’s favor.” United States v. Keller, 916 F.2d 628, 632 (11th Cir. 1990).

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We review for harmful error an argument that the court reporter failed to

transcribe all of the trial proceedings. United States v. Upshaw, 448 F.2d 1218,

1224 (5th Cir. 1971).

                                 III. DISCUSSION

      Wooten raises four arguments against his convictions and sentences. First,

he argues that the rebuttal argument of the government improperly shifted the

burden of proof, was prosecutorial misconduct, and entitles him to a new trial.

Second, he argues that the evidence was insufficient to support a conviction for

use of a firearm during a drug trafficking offense. Third, he argues that significant

omissions in the trial transcript entitle him to a new trial. Fourth, he argues that

the district court erred when it sentenced Wooten under a mandatory Guidelines

regime. We address each argument in turn.

             A. The Rebuttal Argument Regarding the Burden of Proof
                     Does Not Entitle Wooten to a New Trial.

      Wooten argues that the rebuttal argument of the government, which

involved two statements, improperly shifted the burden of proof and requires a

new trial. “Prosecutorial misconduct requires a new trial only if we find the

remarks (1) were improper and (2) prejudiced the defendant’s substantive rights.”

United States v. Hernandez, 145 F.3d 1433 (11th Cir. 1998). We consider



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Wooten’s argument regarding the two statements of the government separately.

      The first statement, “[T]here is no evidence to rebut the Government’s

evidence,” was improper but did not require a new trial. The statement improperly

shifted the burden of proof by implying that Wooten needed to present evidence,

but no prejudice occurred. The district court promptly and correctly instructed the

jury on the burden of proof, and we have no reason to doubt that the jury followed

those instructions. See United States v. Simon, 964 F.2d 1082, 1087 (11th Cir.

1992).

      The second statement, that the government did not need an expert to prove

that it was Wooten’s voice on the recordings, was not improper. The government

was responding to Wooten’s argument that the government had failed to produce

an expert to testify about the voice on the recordings. The statement was a

commentary on the evidence, not Wooten’s absence of proof, and the government

did not allude to the burden of proof.

B. The Evidence Was Sufficient to Convict Wooten of Carrying a Firearm During
    and Possessing a Firearm in Furtherance of a Drug Trafficking Offense.

      Wooten argues that the evidence was insufficient to support his convictions

on Counts Seven and Ten under 18 U.S.C. § 924(c)(1)(A)(i), which applies to

“any person who, during and in relation to any crime of violence or drug



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trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such

crime, possesses a firearm . . . .” (emphases added). Count Seven charged that

Wooten carried a firearm on January 5, 2004, when McNeal purchased crack

cocaine and a handgun from Wooten. Count Ten charged that Wooten possessed

three firearms on January 9, 2004, when the police searched Wooten’s trailer.

Wooten contends that there was no evidence that he used the firearm, and he cites

Bailey v. United States, 516 U.S. 137, 144, 116 S. Ct. 501, 506 (1995), which

addresses the “use” component of the statute but has no bearing on charges of

carrying or possession.

      Wooten’s arguments fail. With respect to Count Seven, McNeal’s

testimony and the recorded conversation between McNeal and Wooten established

that the handgun and the crack cocaine were sold at the same time and Wooten

carried the handgun to give it to McNeal. A reasonable jury could conclude

beyond a reasonable doubt that Wooten carried the gun in relation to the drug

transaction. With respect to Count Ten, testimony established that the firearms

were in Wooten’s trailer, Wooten answered the door with a pistol in his hand

because he thought he was being robbed, Wooten admitted that another of the

guns and the drugs belonged to him, Wooten took possession of the third gun to

discard it, and the trailer was used for drug trafficking. A reasonable jury could

                                           8
conclude beyond a reasonable doubt that Wooten possessed the firearms to protect

his supply of drugs and currency.

        C. The Transcript Omissions Do Not Entitle Wooten to a New Trial.

      Wooten argues that the court reporter’s failure to transcribe the recordings

that the government replayed during its rebuttal argument requires a new trial.

When a new attorney represents the defendant on appeal, we require a new trial if

there is a “substantial and significant” omission from the trial transcript. United

States v. Charles, 313 F.3d 1278, 1283 (11th Cir. 2002). Wooten does not explain

how the omissions were substantial and significant, and we conclude that they

were not.

      The recordings were already admitted in evidence, and they were

transcribed when they were first played during the case-in-chief of the

government. Wooten alleges “severe[] prejudice,” but any error was harmless.

The government identified each of the five replayed excerpts and quoted portions

of the recorded dialogue, so Wooten’s counsel could have fully reconstructed the

rebuttal argument. This inconvenience is not an impediment to meaningful

review, see id., and is not reversible error.

     D. Sentencing Under the Guidelines, as Mandatory, Was Harmful Error.

      Wooten argues and the government concedes that the district court applied

                                           9
the Guidelines as mandatory regarding the sentences for Counts One through Six

and Counts Eight and Nine. This Booker error is harmless “if, viewing the

proceedings in their entirety, a court determines that the error did not affect the

sentence, or had but very slight effect.” United States v. Mathenia, 409 F.3d 1289,

1292 (11th Cir. 2005) (internal quotation marks and alterations omitted). The

government concedes that it cannot meet its burden of proving harmless error,

because nothing in the record suggests that the court would have imposed the

same sentences under an advisory Guidelines system. Because “[w]e simply do

not know what the sentencing court would have done had it understood the

guidelines to be advisory rather than mandatory, and had properly considered the

factors in 18 U.S.C. § 3553(a),” United States v. Davis, 407 F.3d 1269, 1271 (11th

Cir. 2005), we cannot conclude that the error was harmless.

      Although we remand for resentencing under an advisory Guidelines system,

we reject two aspects of Wooten’s arguments about his sentences. First, because

Wooten admitted the facts used to enhance his sentence by not objecting to the

PSI, no constitutional Booker error occurred. United States v. Shelton, 400 F.3d

1325, 1330 (11th Cir. 2005). Second, because the district court sentenced Wooten

to the statutory minimum sentences with respect to Counts Seven and Ten, no

error occurred with respect to those sentences. Id. at 1333 n.10.

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                           IV. CONCLUSION

      We AFFIRM Wooten’s convictions, VACATE Wooten’s sentences for

Counts One through Six and Counts Eight and Nine, and REMAND for

resentencing.




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