                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                          FILED
                         ________________________
                                                                   U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                No. 04-13099
                                                                         JUNE 17, 2005
                            Non-Argument Calendar                     THOMAS K. KAHN
                          ________________________                         CLERK

                       D.C. Docket No. 01-00728-CR-1-1

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

      versus

ANTHONY DRAKE COLLETT,

                                                         Defendant-Appellant.

                         __________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                        _________________________
                                (June 17, 2005)

Before TJOFLAT, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:

      On July 31, 2002, a Northern District of Georgia jury found appellant guilty

on three counts of manufacturing counterfeit United States currency, in violation
of 18 U.S.C. § 471. On May 17, 2004, the district court sentence him to

concurrent prison terms of 30 months. He now appeals. He asks that we vacate

his convictions and remand the case for a new trial. If we affirm the convictions,

he asks that we vacate his sentences because the district court, in determining the

offense level, found as fact that he had obstructed justice—by testifying falsely at

trial—and enhanced his offense level by three levels pursuant to U.S.S.G. § 3C1.1.

Appellant submits that Blakely v. Washington, 542 U.S. ____, 124 S. Ct. 2531

(2004), and United States v. Booker, 543 U.S. ____, 125 S. Ct. 738 (2005),

precluded the court from making the enhancement because the fact was neither

admitted by him nor found by the jury beyond a reasonable doubt. We turn first to

appellant’s challenges to his convictions.

      At trial, the Government presented as evidence the originals of the allegedly

counterfeit $20 notes. Many were printed only on one side and uncut from the

original 8 ½” by 11" paper on which they had been printed. Some of the notes

were printed on both sides, cut, and generally resembled genuine United States

currency.

      Citing case law from other circuits—which holds that items so crude and

rudimentary that no one would consider them counterfeit— appellant contends

that the district court should have barred the jury from considering the single-sided

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cut bills and the bills on a full sheet of paper. Because the court failed to exclude

these items, he submits, the jury’s verdicts may have rested on insufficient

evidence.

      If, as a matter of law, the challenged bills could not have constituted

“counterfeit obligations,” the question becomes whether the error was “harmless.”

An “erroneous admission of evidence does not warrant reversal if the error had no

substantial influence on the outcome and sufficient evidence uninfected by error

supports the verdict.” United States v. Harriston, 329 F.3d 779, 788-789 (11th

Cir. 2003) (quoting United States v. Jones, 28 F.3d 1574, 1582 (11th Cir. 1994).

      Section 471 provides for the imprisonment for not more than 20 years of

any individual who “counterfeits . . . any obligation . . . of the United States.” 18

U.S.C. § 471. The test for determining whether a replica item of currency is

counterfeit is “whether the fraudulent obligation bears such a likeness or

resemblance to any of the genuine obligations or securities issued under the

authority of the United States as is calculated to deceive an honest, sensible and

unsuspecting person of ordinary observation and care dealing with a person

supposed to be upright and honest.” United States v. Parr, 716 F.2d 796, 807

(11th Cir. 1983) (quoting United States v. Turner, 586 F.2d 395, 397 & n. 6 (5th

Cir. 1978).

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      Assuming, without deciding, that the district court erred in concluding that

one-sided and uncut replicas of United States currency could constitute counterfeit

obligations of the United States, the error was harmless. The conviction on each

court must be upheld if only one item of evidence supporting the count meets the

legal definition of “counterfeit.” Here, as to each count, the evidence included at

least one item that bears a likeness to a $20 Federal Reserve Note and was

calculated to deceive an honest, sensible and unsuspecting person of ordinary

observation and care dealing with a person, i.e., appellant, who was supposed to

be upright and honest. See Parr, 716 F.2d at 807. Such items approximate the

coloration and size of legitimate $20 Federal Reserve Notes and are printed on

both sides and cut, with a front and back side that resembles the front and back

side of a legitimate $20 Federal Reserve Note. In short, they are counterfeit, and

the court’s error, if error at all, had no substantial influence on the outcome of the

case. See Harriston, 329 F.3d at 788-789.

      Putting this issue aside, appellant contends the testimony of a secret service

agent, concerning locations or situations where single-sided fake bills are passed,

was expert testimony that the prosecutor failed timely to disclose as required by

Fed. R. Crim. P. 16. To show that this discovery violation prejudiced his




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substantial rights, he points to the fact that the prosecutor relied substantially on

the agent’s testimony to prove intent to defraud.

      A violation of the disclosure requirements of the Federal Rules of Evidence

will result in a reversal of conviction only if it prejudices a defendant’s substantial

rights. United States v. Perez-Garcia, 904 F.2d 1534, 1546 (11th Cir. 1990). “The

degree to which a defendant’s rights suffer as a result of a discovery violation is

determined by considering how the violation affected his ability to present a

defense and, to a lesser degree, the weight of all the other evidence introduced.”

Id.

      We find no prejudice to substantial rights in this case. The relevance of the

agent’s testimony only concerned the passing of one-sided fake bills as real by

folding them up. A defense against this testimony—consisting presumably of a

countering expert—would not have affected the Government’s case based on the

two-sided, cut bills.

      We find no basis for setting aside appellant’s convictions and therefore turn

to his sentences.

      Because Dyson did not present his Blakely objection to the district court, we

review the district court’s alleged Blakely, now Booker, error for plain error. See

Fed.R.Crim.P. 52(b); United States v. Rodriguez, 398 F. 3d 12191 (11th Cir.

                                           5
2005), rehearing en banc denied, ___ F. 3d ____, 2005 WL 895174 (11th Cir. Apr.

19, 2005). To satisfy the plain-error standard, we must find that (1) the district

court committed “error,” (2) the error was plain or obvious, and (3) the error

“affected substantial rights” in that the error was prejudicial. United States v.

Olano, 507 U.S. 725, 730-32, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993).

Concerning the third prong, in most cases the error will be prejudicial if it

“affected the outcome of the district court proceedings.” Id. at 734, 113 S.Ct. at

1778. If these criteria are met, we may, in our discretion, correct the plain error if

it “seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 736, 113 S.Ct. at 1779 (internal quotations and citation

omitted).

      Rodriguez dictates our application of the plain error test in this case.

Following Rodriguez, we conclude that a Sixth Amendment error (the

enhancement of appellant’s base offense level based on facts not admitted by

appellant or found by a jury) occurred, Rodriguez, 398 F. 3d at 1299, and that it

was plain. Id. The question thus becomes whether the third prong of the plain

error test has been met in this case, i.e., whether the error affected appellant’s

substantial rights.




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      The defendant has the burden of showing such prejudice—that the error

affected his substantial rights. Id. at 1299.

      [T]he . . . defendant [must] show that the error actually did make a
      difference: if it is equally plausible that the error worked in favor of
      the defense, the defendant loses; if the effect of the error is uncertain
      so that we do not know which, if either, side it helped the defendant
      loses. Where errors could have cut either way and uncertainty exists,
      the burden is the decisive factor in the third prong of the plain error
      test, and the burden is on the defendant.


Id. at 1300.

      Appellant has failed to carry this burden. The Guidelines sentence range in

this case called for a prison term (as to each count) of 30 to 70 months duration.

The court imposed sentences at the bottom of this range. There is nothing in the

record of the sentencing hearing that would permit us to say that had the court

considered the Guidelines as discretionary rather than mandatory, it probably

would have imposed significantly lesser sentences. Appellant’s sentences are

therefore due to be affirmed.

      AFFIRMED.




                                           7
Tjoflat, Circuit Judge, concurring specially:

      As I explain in my dissent to the court’s refusal to rehear Rodriguez en

banc, the error in a case such as this—where the district court enhances the

defendant’s sentence on the basis of facts not admitted by the defendant or found

by a jury—is structural error, and the third prong of the plain-error test is,

therefore, inapplicable. See United States v. Rodriguez, — F.3d —, 2005 WL

895174 (11th Cir. Apr. 19, 2005) (Tjoflat, J., dissenting from the denial of

rehearing en banc). Accordingly, the court should consider whether the error

“seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Olano, 507 U.S. 725, 736, 113 S. Ct. 1770, 1779,

123 L. Ed.2d 508 (1993). I concur in the court’s judgment because we are

Rodriguez bound.




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