                                            [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                 FOR THE ELEVENTH CIRCUIT
                                                      FILED
                                             U.S. COURT OF APPEALS
                                               ELEVENTH CIRCUIT
                                                   DEC 12, 2008
                        No. 07-12443
                                                THOMAS K. KAHN
                                                     CLERK

               D. C. Docket No. 06-20734-CR-FAM

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee,

                            versus

DEMOND LEVAIL OSLEY,
a.k.a. D-LO(1),

                                            Defendant-Appellant.

                         ___________

                         No. 08-12262
                         ___________

               D. C. Docket No. 06-20734-CR-FAM

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee,

                            versus

DEMOND LEVAIL OSLEY,
a.k.a. D-LO,
                                                                     Defendant-Appellant.



                       Appeals from the United States District Court
                           for the Southern District of Florida


                                    (December 12, 2008)

Before DUBINA, BLACK and FAY, Circuit Judges.

PER CURIAM:

      This is a case arising under the Mann Act, which criminalizes the

transportation of an individual across state lines for the purposes of prostitution.

See 18 U.S.C. §§ 2421-2423.

      Appellant Demond Levail Osley (“Osley”) appeals his convictions and

sentences for various offenses involving the sexual trafficking of a minor. The

issues presented on appeal are:

      (1) Whether the district court properly overruled Osley’s Batson1 challenges

during jury selection.

      (2) Whether the district court properly denied Osley’s motion for mistrial

after the jury heard a portion of a taped interview with the victim after the parties

agreed the statement would not be admitted.

      1
          Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986).

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      (3) Whether the district court properly denied Osley’s motion for a new trial

based on newly discovered evidence.

      (4) Whether the district court properly determined Osley’s sentence based

on the cross-reference provision in U.S.S.G. § 2G1.3(c)(3).

      (5) Whether the district court clearly erred in applying the vulnerable victim

enhancement to the guideline calculation at sentencing.

      (6) Whether the district court applied an upward departure that was

unreasonable and without notice as required under Fed.R.Crim.P. 32(h).

      This court gives great deference to a district court’s finding on a Batson

challenge of whether a defendant has shown a prima facie case of impermissible

discrimination by the Government. United States v. Ochoa-Vasquez, 428 F.3d

1015, 1039 (11th Cir. 2005). The district court’s finding is one of fact and will

not be disturbed on appeal “unless it is clearly erroneous or appears to have been

guided by improper principles of law.” United States v. Williams, 936 F.2d 1243,

1246 (11th Cir. 1991); see also Rice v. Collins, 546 U.S. 333, 126 S. Ct. 969

(2006) (noting that on direct appeal the court reviews for clear error the trial

court’s credibility findings in a Batson inquiry).

      The district court’s denial of a motion for mistrial is reviewed for an abuse

of discretion. United States v. Ettinger, 344 F.3d 1149, 1161 (11th Cir. 2003).

                                           3
      This court will review a district court’s findings of fact regarding sentencing

for clear error and will review the district court’s application of those facts to the

sentencing guidelines de novo. United States v. Smith, 127 F.3d 1388, 1389 (11th

Cir. 1997); United States v. Hall, 46 F.3d 62, 63 (11th Cir. 1995). The ultimate

sentence is reviewed for reasonableness; “there is a range of reasonable sentences

from which the district court may choose, and when the district court imposes a

sentence within the advisory [g]uidelines range, [the Court of Appeals] ordinarily

will expect that choice to be a reasonable one.” United States v. Talley, 431 F.3d

784, 788 (11th Cir. 2005). Consequently, the appellate court’s review for sentence

reasonableness is deferential. Id.

      This court reviews for abuse of discretion the district court’s denial of a

motion for new trial based on newly discovered evidence. United States v.

Noriega, 117 F.3d 1206, 1217 (11th Cir. 1997).

      After reviewing the record, reading the parties’ briefs, and having the

benefit of oral argument, we conclude that the district court properly overruled

Osley’s challenges during jury selection because Osley failed to show that the

Government’s reasons for striking certain jurors were discriminatory. The

government eliminated those jurors who said their family members were not

treated fairly by the justice system or had a family member whose case was

                                           4
pending. No comparable jurors were left on the jury. Accordingly, the

government’s strikes were race-neutral.

      We also conclude from the record that the district court properly denied

Osley’s motion for mistrial because Osley failed to show how the evidence

overheard by the jury was prejudicial.

      Concerning the claim that the district court erred in denying his motion for

new trial, we conclude that Osley’s characterization of the testimony of H.W. as

perjury is incorrect and, as such, Osley is not entitled to a new trial.

      To determine whether a sentence was imposed due to a Guidelines departure

or a § 3553(a) variance, this court should look to the process taken by the district

court in making its determination. United States v. Irizarry, 458 F.3d 1208, 1211-

1212 (11th Cir. 2006). Here, our review of the district court’s procedure does not

clarify whether the court imposed a departure or a variance. Although the district

court discussed the § 3553(a) factors as it would in imposing a variance, it also

stated that it would increase the offense level by three levels to determine a new

guidelines range, which is more akin to a departure. The court did not, however,

cite any specific guideline supporting a upward departure. The court also stated

that it believed the three-level variance was justified, but then imposed a sentence

within the newly determined guidelines range. (R6 at 29-31). Thus, it seems that

                                           5
the court mixed its terminology by departing up three levels at the same time as

stating it was imposing a variance. Because it is unclear whether the court

imposed a variance or a departure, we vacate Osley’s sentences and remand for

resentencing.2

       AFFIRMED in part, VACATED and REMANDED in part.




       2
        We see no error in the district court’s application of the cross-reference provision referenced
in U.S.S.G. § 2G1.3(c)(3) and in its application of the vulnerable victim enforcement referred in
U.S.S.G. § 3A1.1(b)(1).

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