                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                               No. 04-16403                   December 5, 2005
                           Non-Argument Calendar            THOMAS K. KAHN
                         ________________________               CLERK


                  D. C. Docket No. 04-00051-CR-T-17-EAJ


UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

RONALD DUVALL,

                                                           Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________
                            (December 5, 2005)


Before TJOFLAT, BLACK and CARNES, Circuit Judges.

PER CURIAM:

     Ronald Duvall appeals his conviction and sentence for theft of government
property, in violation of 18 U.S.C. § 641. Duvall appeals on three grounds,

asserting the district court: (1) erred by denying his motion for judgment of

acquittal; (2) erred by submitting sentencing factors to the jury; and (3) sentenced

him based on facts not pled in the indictment or proven to a jury beyond a

reasonable doubt, thus violating Blakely v. Washington, 124 S. Ct. 2531 (2004),

and United States v. Booker, 125 S. Ct. 738 (2005). We affirm Duvall’s

conviction, but vacate his sentence and remand for resentencing.

                                  I. DISCUSSION

A. Motion for Judgment of Acquittal

      First, Duvall asserts the district court erred in denying his motion for a

judgment of acquittal because he should not have been penalized for relying upon

the diagnoses of the doctors which enabled him to received benefits from the

Veteran’s Administration (VA). We review

      [q]uestions about the sufficiency of the evidence produced at trial . . .
      de novo. We must view all evidence in the light most favorable to the
      United States, with all reasonable inferences drawn in its favor. To
      uphold the district court’s denial of the motion for judgment of
      acquittal and the jury’s verdict, we need only find that a reasonable
      fact finder could have concluded that the evidence established the
      defendant’s guilt beyond a reasonable doubt.

United States v. Fallen, 256 F.3d 1082, 1087 (11th Cir. 2001) (citations omitted).

“It is not necessary that the evidence exclude every reasonable hypothesis of



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innocence or be wholly inconsistent with every conclusion except that of guilt,

provided that a reasonable trier of fact could find that the evidence established guilt

beyond a reasonable doubt. A jury is free to choose among the constructions of the

evidence.” United States v. Calderon, 127 F.3d 1314, 1324 (11th Cir. 1997),

holding modified on other grounds, United States v. Toler, 144 F.3d 1423 (11th

Cir. 1998). “Credibility determinations are the exclusive province of the jury.” Id.

at 1325 (quotation omitted).

      For testimony of a government witness to be incredible as a matter of
      law, it must be unbelievable on its face. It must be testimony as to
      facts that [the witness] physically could not have possibly observed or
      events that could not have occurred under the laws of nature. Further,
      the fact that [the witness] has consistently lied in the past, engaged in
      various criminal activities, [and] thought that his testimony would
      benefit him does not make his testimony incredible.

Id. (citations and quotations omitted).

      “Whoever embezzles, steals, purloins, or knowingly converts to his use or

the use of another, or without authority, sells, conveys or disposes of any . . . thing

of value of the United States or of any department or agency thereof . . . Shall be

fined under this title or imprisoned not more than ten years, or both.” 18 U.S.C.

§ 641. The elements of this offense include: (1) the property at issue belongs to

the United States, (2) the defendant fraudulently appropriated the property to his

own use, and (3) the defendant did so knowingly and willfully with the intent to



                                           3
permanently or temporarily deprive the owner of the property. United States v.

McRee, 7 F.3d 976, 980 (11th Cir. 1993) (citations omitted).

      The money paid by the VA belonged to the United States. The VA had

intended the funds it paid to Duvall to be paid to a blind veteran. Duvall received

the money because he maintained he was virtually blind. However, the jury heard

evidence of physicians who had recently evaluated Duvall and found no physical

reason for his poor vision. Further, there were no suspected conditions or diseases

which could account for the nature of his vision loss or its severity. The jury also

heard evidence of Duvall performing tasks an ordinary individual with poor vision

could not do. These included: reading, writing, measuring, painting, installing

drywall, laying tile, playing pool, critiquing a haircut, drawing a picture, building a

porch, and even driving speeds up to 82 miles per hour. No witnesses admitted to

witnessing Duvall’s method of scanning by moving his head to utilize his

peripheral vision. Thus, Duvall’s retention of the money, despite the fact his

actions showed he was not in fact blind constituted criminal conversion. He was

not entitled to those funds, regardless of how he came into possession of them.

Accordingly, we affirm on this issue.

B. Sentencing Factors




                                           4
      Next, Duvall contends the district court erred by allowing sentencing factors,

such as the amount of the Government’s loss and whether the scheme required

more than minimal planning, to be pled in the indictment and submitted to the jury.

We review a denial of a motion to dismiss an indictment for abuse of discretion.

United States v. Waldon, 363 F.3d 1103, 1108 (11th Cir.), cert. denied, 125 S. Ct.

208 (2004). A district court’s refusal to give a requested instruction is also

reviewed for abuse of discretion. United States v. Futrell, 209 F.3d 1286, 1288

(11th Cir. 2000).

      “Special verdicts in criminal jury trials are generally disfavored.” United

States v. Griffin, 705 F.2d 434, 437 (11th Cir. 1983). However, “special verdicts

are appropriate in addressing sentencing matters.” United States v. Clay, 355 F.3d

1281, 1285 (11th Cir.), cert. denied, 125 S. Ct. 626 (2004) (citation omitted). In

Clay, the district court did not err in employing a special verdict to determine the

drug amount and applicability of a mandatory minimum sentence in accordance

with Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). Clay, 355 F.3d at 1285.

      Although Booker notes the submission of sentencing factors to the jury

would be burdensome, 125 S. Ct. at 755–56, it does not prohibit such a measure.

As Blakely cast doubt on the constitutionality of the Guidelines as applied, and the

sentencing allegations required no more proof than that which would already be



                                           5
submitted to the jury at trial, the district court did not abuse its discretion in not

dismissing the indictment for its inclusion of the allegations, and instructing the

jury on such findings. Accordingly, we affirm on this issue.

C. Sentencing

       Lastly, Duvall asserts the district court erred in sentencing him to 30

months’ imprisonment for the losses proved to the jury, and 37 months’

imprisonment for the losses found at the sentencing hearing. Because Duvall

raised his Booker objection to the district court’s application of the Sentencing

Guidelines at his sentencing, we review the issue de novo, and reverse “only if any

error was harmful.” United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). We

have clarified there are two types of error under Booker: (1) constitutional error

based upon sentencing enhancements imposed under a mandatory Guidelines

system neither admitted by the defendant nor submitted to a jury and proven

beyond a reasonable doubt; and (2) statutory error based upon sentencing under a

mandatory Guidelines system. United States v. Shelton, 400 F.3d 1325, 1329–30

(11th Cir. 2005). In order to find a constitutional error harmless, we must find

beyond a reasonable doubt the error complained of did not contribute to the

sentence obtained. Paz, 405 F.3d at 948.




                                             6
       Duvall was sentenced post-Blakely, but pre-Booker. The district judge

sentenced Duvall to both a “Blakely” sentence and a “Guidelines” sentence. The

Blakely sentence was based solely on the jury’s verdict. At trial, the jury found

beyond a reasonable doubt that Duvall was responsible for at least $200,000 in

losses and the crime involved more than minimal planning. The base offense level

for a violation of 18 U.S.C. § 641 is 4. U.S.S.G. § 2B1.1.1 The district court may

increase the base offense level by 10 if the amount taken from the government is

greater than $200,000. Id. § 2B1.1(b)(1)(K). The district court may also increase

the base offense level by two on a finding the crime involved more than minimal

planning. Id. § 2B1.1(b)(4)(A). Based on Duvall’s criminal history category of II,

Duvall’s total base offense level based solely on the jury’s verdict was 16, with a

sentencing range of 24 to 30 months’ imprisonment. Thus, the district judge

sentenced Duvall to 30 months’ imprisonment using this calculation.

       The PSI, however, stated Duvall was responsible for at $500,000 in losses.

The district court may increase the base offense level by 12 if the amount taken

from the government is greater than $500,000. Id. § 2B1.1(b)(1)(M). The district

judge found, by a preponderance of the evidence, that Duvall was responsible for

at least $500,000 in losses. Thus, under his “Guidelines” sentence, Duvall’s total


       1
        Duvall’s offense level was calculated under the November 2000 edition of the Sentencing
Guidelines. All citations to the Guidelines are to the November 2000 edition.

                                              7
base offense level was 18. With a criminal history category of II, Duvall’s

sentencing range was 30 to 37 months’ imprisonment under the Guidelines. The

district judge imposed an alternative sentence of 37 months’ imprisonment using

this calculation.

      Duvall’s 30-month sentence was enhanced as a result of facts that were

proven beyond a reasonable doubt to a jury, thus, no constitutional error under

Booker is present. However, because Duvall’s 37-month sentence was enhanced as

a result of facts that were not proven beyond a reasonable doubt to a jury under a

mandatory Guidelines system, constitutional error under Booker occurred. See

Rodriguez, 398 F.3d at 1298. As constitutional error is present in the 37-month

sentence, the burden shifts to the Government to show, beyond a reasonable doubt,

the error did not contribute to the sentence received. The Government argues there

is no error with respect to the 37-month sentence, thus it has not met its burden of

showing the error was harmless. Further, the Government concedes remand is

necessary as the judgment contains two different sentences and creates a likelihood

of confusion at the Bureau of Prisons. Accordingly, we vacate Duvall’s sentence

and remand for resentencing.




                                          8
                                      II. CONCLUSION

       The district court did not err in denying Duvall’s motion for judgment of

acquittal or abuse its discretion by submitting sentencing factors to the jury. The

Government did not meet its burden, however, of showing the constitutional error

in Duvall’s sentence was harmless beyond a reasonable doubt. Thus, we affirm

Duvall’s conviction, but vacate his sentence and remand for resentencing light of

Booker. We note the district court correctly calculated Duvall’s Guidelines range

of 30 to 37 months’ imprisonment. See United States v. Crawford, 407 F.3d 1174,

1178–79 (11th Cir. 2005) (stating after Booker, district courts must consult the

Guidelines and “[t]his consultation requirement, at a minimum, obliges the district

court to calculate correctly the sentencing range prescribed by the Guidelines”).

Thus, on remand the district court is required to sentence Duvall according to

Booker, considering the Guidelines advisory range of 30 to 37 months’

imprisonment, and “other statutory concerns as well, see [18 U.S.C.] § 3553(a)

(Supp. 2004).” Booker, 125 S. Ct. at 757.2

       CONVICTION AFFIRMED, SENTENCE VACATED AND REMANDED.




       2
         We do not mean to suggest by our holding that the district court must impose any particular
sentence on remand. Rather, we merely hold the Government did not meet its burden of showing
the constitutional error under Booker was harmless. We also do not attempt to decide now whether
a particular sentence might be reasonable in this case.

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