                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-4502



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


SHAWNDELL BARNES,

                                             Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CR-02-215)


Submitted:   May 31, 2005                   Decided:   July 13, 2005


Before WILKINSON, WILLIAMS, and MOTZ, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.


Richard Alan Seligman, Washington, D.C., for Appellant. Allen F.
Loucks, United States Attorney, Michael R. Pauzé, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          Shawndell Barnes was convicted of conspiracy to commit

bank robbery, in violation of 18 U.S.C. § 371 (2000) (Count One),

aiding and abetting armed bank robbery, in violation of 21 U.S.C.

§ 2113 (a), (d) (2000) (Count Two), and aiding and abetting the use

of a firearm during a crime of violence, in violation of 21 U.S.C.

§ 924(c) (2000) (Count Three).     Barnes was sentenced to 46 months’

imprisonment each on Counts One and Two, to run concurrently, and

84 months’ imprisonment on Count Three, to run consecutively.

Barnes was also sentenced to five years’ supervised release to

follow his imprisonment, and restitution of $15,690, jointly and

severally with his co-defendants—an amount to which Barnes had

stipulated.   Barnes appeals his convictions and sentence.

          Barnes   contends    there   was   insufficient   evidence   to

support his convictions.      We review the district court's decision

to deny a motion for judgment of acquittal de novo.              United

States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001).          If the

motion was based on insufficiency of the evidence, the verdict must

be sustained if there is substantial evidence, taking the view most

favorable to the government, to support it.          Glasser v. United

States, 315 U.S. 60, 80 (1942).     “Substantial evidence is evidence

that a reasonable finder of fact could accept as adequate and

sufficient to support a conclusion of a defendant’s guilt beyond a




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reasonable doubt.”     United States v. Burgos, 94 F.3d 849, 862 (4th

Cir. 1996) (en banc).

            In order to prove Barnes aided and abetted armed bank

robbery, the government had to establish that Barnes knew or

reasonably should have foreseen that his confederates would use a

dangerous weapon.      United States v. McCaskill, 676 F.2d 995, 998

(4th Cir. 1982).      The government was not required to prove Barnes

participated in every stage of the crime, only that he participated

at some stage with knowledge of the likely result and intent to

bring about that result. United States v. Arrington, 719 F.2d 701,

705 (4th Cir. 1983).

            Viewing the evidence in the light most favorable to the

government, we conclude there was sufficient evidence from which a

jury could reasonably infer Barnes actively assisted in the bank

robbery, had constructive knowledge a gun would be used in the

commission of the robbery, and had actual knowledge that a gun was

used during the bank robbery.           Accordingly, we affirm Barnes’

convictions.

            Barnes also asserts that his Sixth Amendment right to

confront and cross-examine witnesses was violated when the district

court excluded a transcript of trial testimony from a prior bank

robbery   involving    Barnes’     co-defendant,   David   Smith,   but   not

involving   Barnes,    for   the    purpose   of   impeaching   Smith,    who

testified against Barnes.           The district court has discretion


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generally   to    conduct   a   trial,      including   the      presentation    of

evidence, in whatever manner the court deems appropriate, and the

district court’s evidentiary rulings are entitled to substantial

deference   and   will    not   be   reversed    absent     a    clear   abuse   of

discretion. See United States v. Leftenant, 341 F.3d 338, 342 (4th

Cir. 2003), cert. denied, 124 S. Ct. 1183 (2004); Sasaki v. Class,

92 F.3d 232, 241 (4th Cir. 1996); United States v. Moore, 27 F.3d

969, 974 (4th Cir. 1994).        We find Barnes has failed to set forth

any evidence to establish abuse of the district court’s discretion

in   excluding    the    transcript    as     collateral,       irrelevant,   non-

probative, and untrustworthy.

      Barnes also appeals his sentence, arguing the district court

erred in applying the federal sentencing guidelines as mandatory

and enhanced his sentence based on facts found by the court and not

by the jury in violation of United States v. Booker, 125 S. Ct. 738

(2005).     Because Barnes did not object to his sentence in the

district court on these grounds, our review is for plain error.

United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).                      To

demonstrate plain error, Barnes must establish that error occurred,

that it was plain, and that it affected his substantial rights.

Id. at 547-48.     If a defendant establishes these requirements, the

Court’s “discretion is appropriately exercised only when failure to

do so would result in a miscarriage of justice, such as when the

defendant is actually innocent or the error seriously affects the


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fairness, integrity or public reputation of judicial proceedings.”

Id. at 555 (internal quotation marks and citation omitted).

            In Booker, the Supreme Court held that the mandatory

manner in which the federal sentencing guidelines required courts

to impose sentencing enhancements based on facts found by the court

by a preponderance of the evidence violated the Sixth Amendment.

125 S. Ct. at 746, 750.           The Court remedied the constitutional

violation   by    severing    two    statutory   provisions,   18    U.S.C.A.

§§ 3553(b)(1), 3742(e) (West 2000 & Supp. 2004), thereby making the

guidelines advisory.        Hughes, 401 F.3d at 546.

            We find Barnes did not receive any enhancements based on

facts not found by a jury or admitted to by Barnes.                    Barnes

received a two-level enhancement for taking money from a financial

institution      pursuant    to     U.S.   Sentencing   Guidelines     Manual

§ 2B3.1(b)(1) (2002), based on facts found by the jury or admitted

to by Barnes in stipulations at trial. Barnes also stipulated that

the amount of the proceeds from the bank robbery was $15,690, and

thus the one-level enhancement pursuant to USSG § 2B3.1(b)(7)(B)

for an offense involving more than $10,000 but less than $50,000

was not based on judicial fact-finding. Therefore, we find Barnes’

sentence does not exceed the maximum sentence authorized by the

facts admitted to by Barnes or found by the jury alone, and does

not violate his Sixth Amendment rights.




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            However, in United States v. White, ___ F.3d ___, 2005 WL

949326 (4th Cir. Apr. 26, 2005), we recognized that a sentence that

does not violate the Sixth Amendment may involve cognizable plain

error when it appears the district court would have imposed a

lesser sentence if it had treated the guidelines as advisory.

Here,    although   the    court’s   comments      at    sentencing        are    not

conclusive, they can be interpreted to permit the possibility that

a lower sentence might have been imposed on Barnes had the court

not been under the now-erroneous understanding that application of

the guidelines was mandatory.*            Out of deference to the district

court, then, we vacate Barnes’ sentence and remand the case for

resentencing consistent with Booker.

            Although      the   Sentencing     Guidelines     are     no     longer

mandatory, Booker makes clear that a sentencing court must still

“consult    [the]   Guidelines     and     take   them    into   account         when

sentencing.”    125 S. Ct. at 767.           On remand, the district court

should first determine the appropriate sentencing range under the

Guidelines,    making     all   factual    findings     appropriate    for       that

determination. See United States v. Hughes, 401 F.3d 540, 546 (4th

Cir. 2005) (applying Booker on plain error review).                   The court


     *
      Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Reed’s sentencing.      See generally Johnson v. United
States, 520 U.S. 461, 468 (1997) (stating that an error is “plain”
if “the law at the time of trial was settled and clearly contrary
to the law at the time of appeal”).

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should consider this sentencing range along with the other factors

described in 18 U.S.C. 3553(a) (2000), and then impose a sentence.

Id. If that sentence falls outside the Guidelines range, the court

should explain its reasons for the departure as required by 18

U.S.C. 3553(c)(2) (2000).   Id.   The sentence must be “within the

statutorily prescribed range and . . . reasonable.” Id. at 546-47.

          In sum, we affirm the convictions, but vacate Barnes’

sentence and remand for resentencing in accordance with Booker. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.



                                                 AFFIRMED IN PART;
                                      VACATED AND REMANDED IN PART




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