                                                     [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________                FILED
                                                    U.S. COURT OF APPEALS
                            No. 05-10506              ELEVENTH CIRCUIT
                                                      NOVEMBER 29, 2005
                       Non-Argument Calendar
                                                       THOMAS K. KAHN
                      ________________________
                                                            CLERK

                  D. C. Docket No. 03-20882-CR-PAS

UNITED STATES OF AMERICA,


                                                    Plaintiff-Appellee,

                                versus

CHARGOIS RAMON ANDERSON,

                                                    Defendant-Appellant.

                      ________________________

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


                           (November 29, 2005)


Before BLACK, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
      Chargois Ramon Anderson appeals his convictions and sentence for

(1) conspiracy to interfere with commerce by robbery, in violation of 18 U.S.C.

§ 1951(a); (2) interfering with commerce by robbery, in violation of § 1951(a);

(3) carjacking, in violation of 18 U.S.C. § 2119; and (4) using a firearm in

furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). We

affirm his convictions and sentence.

                                I. BACKGROUND

      Prior to trial, Anderson filed a motion to suppress identification testimony,

arguing a 26-person photographic lineup, from which Reynaldo Fernandez

identified him, was extremely suggestive, such that the likelihood of

misidentification was high because his picture was placed in a “prominent

position” and was “more prominent” than the other pictures. The district court

denied Anderson’s motion.

      At the trial, Fernandez identified Anderson as one of the two men who had

robbed him. Another victim, Reider Espinosa, initially could not identify the

perpetrator in the courtroom. He was then shown a copy of the photographic

lineup from which he previously identified Anderson, and acknowledged that, at

the time he picked out a photograph of the perpetrator, but could not identify the

perpetrator in the courtroom that day. A short period after Anderson was discreetly



                                          2
asked by his attorney to remove his glasses, over Anderson’s objection, the

following exchange took place:

      Government:         When you’re looking at this picture can you see
                          the person that you identified as robbing you that
                          day in the courtroom?
      Espinosa:           There is a gentleman that looks like him.
      Government:         Where is that gentleman seated?
      Espinosa:           In front of me.
      Government:         Could you please point that person out and
                          describe something that [he is] wearing?
      Espinosa:           He has a white shirt with a tie.
      Government:         Can the record please reflect that the witness
                          identif[ied] the Defendant?
      Court:              He has pointed out the Defendant
                          ...
      Government:         How is the person[’s] appearance . . . today
                          different than the person [who] you pointed out in
                          the picture?
      Espinosa:           The hair. Because of the time that has gone by . . .

Upon being convicted, Anderson was sentenced under an advisory

Guidelines scheme, after the Supreme Court’s decision in United States v.

Booker, 125 S. Ct. 738 (2005).

      On appeal, Anderson argues the district court should have granted his

motion to suppress Fernandez’s identification testimony and subsequent in-court

identification of Anderson. According to Anderson, the 26-person photo array,

from which Fernandez identified Anderson, was unduly suggestive since:

(1) Anderson’s photo was in a prominent position as the first photograph; (2) his



                                          3
photo stood out from the others, since he was the only man pictured with short

dread locks, and at least 7 of the men were 15 to 20 years older than Anderson; and

(3) the men depicted did not have uniform skin color. Next, Anderson asserts the

procedure surrounding Espinosa’s in-court identification violated due process

because, by the third time Espinosa was asked to identify the perpetrator, “it was

clear that Anderson was the defendant,” making the in-court identification

“tantamount to a police show-up,” in which police officers confront a witness with

a single suspect and ask for an identification. Anderson notes that even when

Espinosa finally identified Anderson it was “somewhat tentative.” Finally,

Anderson contends the retroactive application of Booker to his sentence violated

due process and ex post facto principles because when he allegedly committed the

instant offenses in 2003, under a correct interpretation of the Sixth Amendment, he

could be sentenced only based on facts proven to a jury. He contends because after

Booker, the court was free to impose a sentence above the advisory Guidelines

maximum, the application of Booker increased his punishment retroactively.

Anderson concedes, however, in United States v. Duncan, 400 F.3d 1297, 1306–07

(11th Cir. 2005), cert. denied __ S. Ct. __, 2005 WL 2493971 (Oct. 11, 2005), we

rejected such an ex post facto argument.




                                           4
                                  II. DISCUSSION

A. Motion to Suppress

      In considering a district court’s denial of a defendant’s motion to suppress,

we review the district court’s findings of fact for clear error and its application of

the law to those facts de novo. United States v. Gil, 204 F.3d 1347, 1350 (11th Cir.

2000). In assessing the constitutionality of the district court’s decision to admit an

out-of-court identification, we first “must determine whether the original

identification procedure was unduly suggestive.” United States v. Diaz, 248 F.3d

1065, 1102 (11th Cir. 2001). If we find the procedure was suggestive, “we then

must consider whether, under the totality of the circumstances, the identification

was nonetheless reliable.” Id. We will “construe the facts in the light most

favorable to the prevailing party.” United States v. Gordon, 231 F.3d 750, 754

(11th Cir. 2000).

      Construing the facts most favorably to the Government, the district court did

not clearly err by finding the photo spread was not unduly suggestive. The photo

array itself depicts 26 men, of differing ages and hairstyles, all of whom appear to

be of African-American descent. All of the photographs are roughly the same size,

with backgrounds that are either white or off-white. Under each photo is the man’s

name and date of birth, all in the same font and size. Anderson’s picture is in the



                                            5
top, left-hand corner, but, as the magistrate found, there is nothing about it that

causes it to stand out from the others, and Anderson fails to explain why this

particular positioning was “prominent.” Indeed, the evidence suggests Anderson’s

photo was placed at that particular position because his name came first

alphabetically, not because the Government wanted to call attention to it. There is

no evidence the police knew Anderson was the suspect they were looking for

regarding the May 2, 2003, robbery when Fernandez identified him.

      Although Anderson claims he is the only person depicted with short dread

locks, three other photos depict men with fairly short dread locks, and several

pictures depict men with hair similar to Anderson’s hair in his picture. Moreover,

although the men pictured do not have uniform skin color, they do seem to be

racially similar, and we have held, “simply being of a different race or ethnic group

from others placed in a lineup does not necessarily make that lineup impermissibly

suggestive, especially where . . . the other individuals in the lineup had roughly the

same characteristics and features as the accused.” Williams v. Weldon, 826 F.2d

1018, 1021 (11th Cir. 1987) (habeas context). Although there are some men

pictured who are older than Anderson, nine are roughly his age, and six are

younger. Thus, the district court did not clearly err when it determined the photo




                                           6
array was not unduly suggestive on its face, and we need not proceed to the second

step to determine whether the identification was unreliable.

B. In-Court Identification

      We review constitutional challenges de novo. United States v. Lyons, 403

F.3d 1248, 1250 (11th Cir. 2005), petition for cert. filed, No. 05-5047 (June 21,

2005). The Supreme Court has held “the conduct of identification procedures may

be so unnecessarily suggestive and conducive to irreparable mistaken identification

as to be a denial of due process of law.” Foster v. California, 89 S. Ct. 1127, 1128

(1969). In Foster, the witness was asked to identify the perpetrator out of three

people in a lineup, where the perpetrator was five or six inches taller than the other

two people and was wearing clothing similar to that worn by the perpetrator. Id. at

1128. After the witness initially could not positively identify the perpetrator, he

was allowed to speak to the perpetrator, one-on-one. Even after this conversation,

he was unable to be sure about his identification, but, about a week later, at a

second lineup, where the perpetrator was the only person who also had appeared in

the first lineup, the witness positively identified the perpetrator. Id. The Supreme

Court held the procedure in Foster essentially said to the witness, “this is the man,”

and thus violated due process. Id. at 1129. We have found reversible error where

the prosecutor, among other things, pointed to the defendant when eliciting



                                           7
identification testimony from a witness and verbally aided the witness in making

his identification. United States v. Warf, 529 F.2d 1170, 1172–74 (5th Cir. 1976).1

       The in-court identification was not unduly suggestive. Unlike the pre-trial

identification procedure that was at issue in Foster, this was not a situation where

Espinosa was asked to identify Anderson out of a lineup where it was obvious the

Government wanted him to choose Anderson. See Foster, 89 S. Ct. at 1128.

Moreover, the Government’s actions cannot fairly be construed as a “show-up”

because: (1) there is no evidence the prosecutor verbally, or physically, suggested

to Espinosa whom to identify; and (2) after Espinosa initially indicated he could

not identify the robber, each time the prosecutor asked Espinosa again, he had a

reason to believe Espinosa’s answer might be different since Espinosa had been

refreshed with his previous identification and had a chance to see Anderson

without his glasses. There is no evidence the Government’s procedure was

designed to suggest to Espinosa whom to identify, but, instead, the record shows

the prosecutor and the court were careful not to call Espinosa’s attention to the fact

Anderson had removed his glasses. Moreover, Espinosa’s final in-court




       1
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close
of business on September 30, 1981.

                                                8
identification of Anderson was tentative, which Anderson’s counsel utilized on

cross-examination and during his closing statements.

      Even assuming the in-court identification procedure was unduly suggestive,

it was harmless error in light of the other, more reliable identification Espinosa had

made previously, Lieutenant Croughwell’s separate in-court identification of

Anderson, and the overwhelming evidence of Anderson’s guilt. First, the

undisputed evidence shows Espinosa made a prior identification of Anderson, less

than a month after the incident, which was more reliable than his in-court

identification since it was closer in time to the incident. Furthermore, Lieutenant

Croughwell, another eyewitness, made an in-court identification of Anderson,

which Anderson does not dispute, after Anderson removed his glasses. Finally,

even notwithstanding the identifications, substantial evidence supports Anderson’s

convictions as to these counts, as it shows Anderson jumped out of a Damien truck

as it was fleeing from the police, on the same day, and in the same area, as the

robbery and carjacking occurred. Thus, the district court did not err by admitting

Espinosa’s in-court identification.

C. Retroactive Application of Booker

      We review de novo a defendant's claim his sentence violated ex post facto

principles. United States v. Abraham, 386 F.3d 1033, 1037 (11th Cir. 2004), cert.



                                           9
denied, __ S. Ct. __, 2005 WL 2493873 (Oct. 11, 2005). In Booker, the Supreme

Court held the mandatory nature of the Sentencing Guidelines rendered them

incompatible with the Sixth Amendment's guarantee to the right to a jury trial.

Booker, 125 S. Ct. at 749–51. In a second and separate majority opinion, the Court

concluded the appropriate remedy was to render the Sentencing Guidelines

effectively advisory. Id. at 764. The Court stated both its “Sixth Amendment

holding and . . . remedial interpretation of the Sentencing Act” must be applied to

“all cases on direct review.” Id. at 769. In Duncan, we determined due process is

not violated by the retroactive application of Booker’s remedy since the defendant

had “warning at the time he committed his crime that life imprisonment was a

potential consequence of his actions.” Duncan, 400 F.3d at 1307. At the time

Anderson committed the offenses he had ample warning, based on the maximum

statutory sentences set out in the U.S. Code, that a total 272-month sentence was a

possible consequence of his actions, and therefore, there are no ex post facto or due

process violations implicated in this case. See id.

                                III. CONCLUSION

      The district court did not clearly err by denying Anderson’s motion to

suppress the identification testimony. Additionally, the in-court identification




                                          10
procedure did not violate Anderson’s due process rights, and no due process or ex

post facto violations occurred at sentencing.

      AFFIRMED.




                                          11
