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                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-11849
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:13-cr-20823-DLG-1



UNITED STATES OF AMERICA,

                                                      Plaintiff - Appellee,

                                  versus

TERRENCE JAMES JACKSON,
a.k.a. Tay-Tay,

                                                      Defendant - Appellant.

                       ________________________

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

                              (June 9, 2015)

Before TJOFLAT, WILSON and JILL PRYOR, Circuit Judges.

PER CURIAM:
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       Terrence Jackson appeals his convictions and sentence imposed after a jury

convicted him of one count of conspiracy to commit bank robbery and one count

of bank robbery with a dangerous weapon, all in violation of 18 U.S.C. §§ 2, 371,

and 2113(a), (d). After careful review of the record and the parties’ briefs, we

affirm.

                                                I.

       A grand jury indicted Jackson on three charges: conspiracy to commit bank

robbery (Count1); robbing a bank by “assault[ing] and put[ting] into jeopardy the

life of a person by the use of a dangerous weapon, that is, a firearm,” (Count 2);

and brandishing a firearm during and in relation to a crime of violence,

specifically, the armed robbery (Count 3). He pled not guilty and proceeded to

trial, where the government presented the following evidence.

       On April 11, 2013, the JetStream Credit Union branch, located inside

Miami’s Mercy Hospital, was robbed.1 According to two men who admitted to

participating in the robbery, both of whom testified at Jackson’s trial, Jackson was

involved in the planning and execution of the robbery. One of these men, Garriett

Hicks, testified that he met Jackson through a coconspirator named Alfred Walker.

After Walker proposed robbing the credit union, the three began planning their


       1
          Because Jackson mounts a challenge to the sufficiency of the evidence against him, we
recite the facts relevant to his conviction in the light most favorable to the jury’s verdict. See
United States v. Haile, 685 F.3d 1211, 1219 (11th Cir. 2012).
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execution of the scheme. All three drove to the hospital four or five times to

familiarize themselves with the route, and Walker and Jackson went inside the

hospital several times to familiarize themselves with the entry and exit points.

      Hicks testified that, on the evening of April 10, the three further discussed

the robbery plan. Walker and Jackson introduced Hicks that night to Tavarius

Smith, a fourth conspirator. Smith brought a gun with him to the meeting, but

Hicks testified he told Smith that a gun was not necessary for the robbery. The

following day, the four agreed to rob the credit union.

      According to Hicks, he was tasked with remaining outside the hospital as a

lookout, while Walker, Jackson, and Smith would enter and rob the credit union.

On the morning of April 11, Hicks drove his car to the hospital. The others rode

separately in a car Walker drove. After Walker parked his car at the hospital,

Hicks circled the parking lot until he saw the three emerge from the hospital and

reenter Walker’s car. The two cars left the credit union, were separated briefly by

traffic, then drove to a house to divide the cash. Inside the house (which Hicks

believed to be Jackson’s), the men poured money on a bed, and Jackson handed

Hicks a wad of cash. During this interaction, according to Hicks, Jackson removed

a gun from his waistband and placed it on the bed. Hicks also saw Smith with a

gun. Hicks was the first to cooperate with the police, a process that began the day

after the robbery.


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      Walker also testified at Jackson’s trial, admitting that he robbed the credit

union along with Jackson, Hicks, and Smith. Walker confirmed that he had

enlisted Jackson to participate and that he, Jackson, and Hicks cased the bank

approximately four times leading up to the robbery. He also confirmed that the

night before the robbery Smith showed the group a gun. He added that Hicks had

told him “from the beginning that we didn’t need no gun, but if it was to protect

the safety, it was . . . to be brought.” Doc. 98 at 175. Walker described each

conspirator’s role in the robbery: he would jump behind the counter to grab the

money, Smith would keep watch while Walker was taking the money, Jackson

would make sure no one in the credit union alerted police or anyone else, and

Hicks would serve as a lookout outside the hospital.

      During the robbery, according to Walker, Jackson (who was wearing purple

or blue gloves) entered the credit union last. At that point, Walker testified,

Jackson caught a woman who was not lying on the ground like the others, sprayed

her with pepper spray, and then ran out of the credit union. Walker and Smith then

left too. Walker, like Hicks, testified that the four rendezvoused at a house where

they divided the money. Later that day, Walker accompanied Jackson to several

places where Jackson spent large sums of money.

      Several credit union employees also testified to the events that occurred on

April 11. Jacqueline Perez, a teller, testified that the robbery began when one man


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jumped over the teller counter, kicking her in the chest. The robbers pepper

sprayed the tellers and told them to get down and not to look. Perez testified that

Marlene Reyes, the credit union’s branch manager, then “came around and saw

[Perez] on the floor,” at which point “another [robber] jumped in . . . by Marlene’s

office.” Doc. 98 at 42. Perez testified that, “[o]nce he st[ood] there,” she “tried to

look to Marlene,” but that “he said, ‘Don’t look because I’ll shoot.’” Id. Perez

then testified that the robber who jumped in and said “don’t look” had a weapon on

the left side of his waistband. She clarified that the weapon was a gun. Reyes

testified that she was in her office located just in front of the teller counter when

she heard a sound like something falling. She went over to where the tellers were

and saw them lying on the floor while a man took money from the teller drawers.

As she was looking at the tellers, a man wearing purple gloves pepper sprayed her.

When the government showed Reyes a still photo taken from one of the credit

union’s security cameras, she identified the man as Jackson, stating, “I can see his

purple gloves.” Id. at 77.

      After the government’s case in chief, Jackson moved for judgment of

acquittal, which was denied. Defense counsel proffered one witness, Special

Agent George Nau, and attempted to elicit testimony regarding the dearth of

evidence the investigation uncovered that directly implicated Jackson. The district

court sustained several of the government’s hearsay objections, restricting Nau’s


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testimony to portions of the investigation in which he personally participated.

After Nau denied participating in several aspects of the investigation, his testimony

was minimal. Defense counsel renewed a motion for judgment of acquittal, which

again was denied. The jury convicted Jackson of Counts 1 and 2 but acquitted him

of the charge in Count 3. Defense counsel again reviewed the motion for judgment

of acquittal, which the court denied.

      The probation office’s presentence investigation report recommended that

the district court sentence Jackson as a career offender under § 4B1.1 of the

sentencing guidelines. See U.S.S.G. § 4B1.1(a) (“A defendant is a career offender

if . . . the defendant has at least two prior felony convictions of either a crime of

violence or a controlled substance offense.”). Jackson had been convicted of

carjacking with a firearm and robbery with a firearm (and was sentenced to 82.5

months’ imprisonment on November 1, 2002) and of aggravated assault on a law

enforcement officer (and was sentenced in 2003 to five years’ imprisonment,

concurrent with his 82.5 month sentence). The offenses were committed on

August 20, 2001 and August 21, 2001, respectively. As a result, Jackson’s offense

level was 34 and his criminal history category was VI, which made his guideline

range 262 to 327 months. At sentencing, the district court applied the career

offender enhancement over Jackson’s objection (in which he argued the two

convictions should be treated as only one because, he maintained, they would have


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been treated as one under the career offender rules in place at the time he was

convicted of those offenses). Ultimately, the court imposed a below-guidelines

sentence of 168 months’ imprisonment.

      This is Jackson’s appeal.

                                          II.

                                          A.

      Jackson first challenges the district court’s limitation of Special Agent Nau’s

testimony to the parts of the investigation in which Nau directly participated.

Jackson contends that the court’s refusal to permit questioning about the dearth of

evidence against him limited his defense strategy of illustrating that Hicks and

Walker concocted Jackson’s involvement in an effort to obtain a reduced sentence

based on their assistance to the government. We review the district court’s

exclusion of portions of Nau’s testimony as hearsay for an abuse of discretion.

United States v. Walker, 59 F.3d 1196, 1198 (11th Cir. 1995). Moreover, for

nonconstitutional errors, we will reverse only if the testimony’s exclusion affected

Jackson’s substantial rights. See United States v. Range, 94 F.3d 614, 620 (11th

Cir. 1996).

      Notably, the district court never prevented Nau from testifying about

portions of the investigation in which he directly participated. Even assuming

arguendo that the court erred in excluding portions of Nau’s testimony based on


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his indirect knowledge, we conclude that the exclusion did not affect Jackson’s

substantial rights. The hearsay rulings did not prevent Jackson from presenting his

defense theory that Hicks and Walker fabricated Jackson’s participation in the

hopes of receiving a lower sentence because of their assistance. Jackson

confronted the government’s witnesses at trial, and he elicited, among other things,

testimony from Hicks and Walker that they lied to police about how much they had

received in robbery proceeds and did not initially identify Jackson to the police,

and from Walker that he was cooperating with the government so he could “go

home a little early.” Doc. 98 at 138, 156; Doc. 99 at 243-45, 249-50. Jackson also

had an opportunity to argue his theory during closing argument. 2 Thus, Jackson

cannot shown reversible error.

                                              B.

       Next, Jackson challenges the sufficiency of the evidence against him. We

review the sufficiency of the evidence de novo, “viewing the evidence in the light

most favorable to the government and resolving all reasonable inferences and

credibility evaluations in favor of the jury’s verdict.” United States v. Haile, 685

F.3d 1211, 1219 (11th Cir. 2012). To sustain a conviction on the conspiracy count,

the government was required to show (1) an agreement between Jackson and at


       2
         The government asserts that Jackson failed to have the closing arguments transcribed,
but regardless of the reason, we have no transcript with which to confirm whether Jackson did or
did not make this argument in closing.
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least one coconspirator to achieve an unlawful objective, (2) Jackson’s knowing

and voluntary participation in the agreement, and (3) an overt act by a conspirator

in furtherance of the agreement. United States v. Hasson, 333 F.3d 1264, 1270

(11th Cir. 2003). Jackson challenges the second element, asserting that his

coconspirators’ testimony about his participation was insufficient to sustain his

conviction because it was uncorroborated. This assertion, however, is not an

entirely accurate characterization of the record. First, Walker’s testimony

regarding Jackson’s participation in the planning and execution of the robbery was

consistent with Hicks’s story. Thus, each of these witnesses’ testimony was

corroborated by that of the other. Second, Reyes’s testimony that the man who

pepper sprayed her wore purple gloves (as well as her identification of the man

wearing the gloves in a still photo taken from the credit union’s security camera)

matched Walker’s description of Jackson’s attire on the day of the robbery. Third,

Reyes and the bank tellers also testified to other facts — for example, that one

robber (Hicks) jumped the counter, and that another (Jackson) pepper sprayed the

only woman who was not on the ground — that corroborated other elements of

Jackson’s coconspirators’ testimony. The jury apparently credited the

coconspirators’ testimony in finding that Jackson participated in the conspiracy.

Our case law does not require more. See United States v. Feliciano, 761 F.3d

1202, 1206 (11th Cir. 2014) (“The jury has exclusive province over the credibility


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of witnesses, and the court of appeals may not revisit this question unless [the

testimony] is incredible as a matter of law.” (internal quotation marks omitted)). 3

Thus, the evidence was sufficient to sustain Jackson’s conviction on the Count 1

conspiracy.

       As regards Jackson’s conviction for the substantive robbery count, the

government was required to establish that Jackson used force or intimidation to

take property from the credit union and that, during the course of that offense, he

assaulted a person or put the person’s life in jeopardy with a dangerous weapon.

See 18 U.S.C. § 2113(a), (d). Jackson contests the “dangerous weapon” element,

pointing specifically to the jury’s acquittal on the Count 3 firearm brandishing

charge. Relatedly, he asserts that the only evidence of any weapon he carried was

pepper spray, which does not constitute a dangerous weapon under the law.

       As a preliminary matter, we reject Jackson’s argument that an inconsistent

jury verdict itself constitutes reversible error. See United States v. Mitchell, 146

F.3d 1338, 1344 (11th Cir. 1998) (“The Supreme Court has plainly determined that

jury verdicts are ‘insulate[d] from review’ on the ground that they are

inconsistent.” (quoting United States v. Powell, 469 U.S. 57, 68-69 (1984))).

Moreover, the evidence admitted at trial was sufficient to permit the jury to infer
       3
         Jackson also contends that, setting aside the uncorroborated testimony of the
coconspirators, the only evidence of his participation in the conspiracy and in the robbery is his
conduct after the robbery occurred. Because we have concluded that the evidence regarding
Jackson’s participation in the planning and execution of the robbery was sufficient to sustain a
conviction, we need not address this argument.
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that Jackson carried a gun during the robbery. Perez testified that she saw a gun on

the waistband of the man who approached Reyes, and Reyes testified that the man

who pepper sprayed her wore purple gloves — the same detail to which Walker

testified in describing what Jackson wore during the robbery. Reyes’s testimony

that she was standing when she was pepper sprayed further supports an inference

that it was Jackson who sprayed her because Walker testified that Jackson pepper

sprayed the one woman who was not on the ground. The jury therefore could have

inferred that Jackson, the man with the purple gloves who confronted and pepper

sprayed Reyes, was carrying a gun in his waistband during the robbery.

       The evidence was further bolstered by Hicks’s testimony that he saw

Jackson take a gun from his waistband at the rendezvous place where the four fled

to divide the proceeds. 4 The jury reasonably could infer, based on this evidence,

that Jackson was guilty of the offense charged in Count 2. 5 See Haile, 685 F.3d at

1219 (requiring the court to draw all reasonable inferences in favor of the jury’s

verdict).
       4
          The prosecution also asked Hicks, whether “the day after the robbery, that same
morning when you went to [Jackson’s] house, you saw him remove a weapon from his clothing.
Where in his clothing was the weapon?” Hicks responded “On his hip.” Doc. 98 at 123-24
(emphasis added). Jackson contends that this testimony about the following day is the only
reference in Hicks’s testimony to a gun Jackson purportedly carried, but it is not. As discussed
above, Hicks testified that the four robbers drove straight from the credit union to a house, where
Hicks saw Jackson with a gun. To the extent Hicks’s testimony about the day he saw Jackson
with a gun is internally inconsistent, this went to Hicks’s credibility, and we will not disturb the
jury’s credibility findings. See Feliciano, 761 F.3d at 1206.
        5
          Because we conclude the jury could have found Jackson himself carried a gun during
the robbery, we need not address the government’s alternative argument that Jackson could be
held responsible for the gun Smith allegedly carried.
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                                           C.

      Finally, Jackson challenges his classification as a career offender under

U.S.S.G. § 4B1.1, arguing the grouping of his 2001 carjacking and aggravated

assault convictions violates the ex post facto clause of the United States

Constitution. We review Jackson’s claim, which presents an issue of law, de novo.

See United States v. Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000). The ex post

facto clause bars the application of laws that retroactively alter the definition of a

crime or increase the punishment for criminal conduct. United States v. Reynolds,

215 F.3d 1210, 1213 (11th Cir. 2000). For a law to violate the clause, it must

“apply to events occurring before its enactment” and “disadvantage the offender

affected by it.” Id. A district court must apply the guidelines in a way that does

not violate the clause: if the guidelines manual in effect on the date of sentencing

would, then the court must apply the manual that was in effect on the date the

relevant crime was committed. U.S.S.G. § 1B1.11(b)(1); United States v. Bailey,

123 F.3d 1381, 1403 (11th Cir. 1997).

      Under § 4B1.1 of the sentencing guidelines, a defendant is a career offender

if (1) he was at least 18 years old at the time he committed the instant offense; (2)

the instant offense is a felony either involving a crime of violence or a controlled

substance; and (3) he has at least two prior felony convictions, each of which

involved either a crime of violence or a controlled substance. U.S.S.G. § 4B1.1(a).


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Jackson contends that the 2013 sentencing guidelines manual that the district court

applied a new rule (i.e., one not in effect in 2001) for determining whether his

convictions for carjacking and aggravated assault counted as one conviction. He

asserts that the district court should have applied the old rule (which, he argues,

would require the two convictions to be treated as one for sentencing purposes)

rather than the new one (which permitted the court to count the convictions

separately). But the Supreme Court and this Court have rejected the view that a

sentence enhancement based on a conviction or convictions sustained before the

enhancement came into force constitutes an increased punishment for that past

criminal conduct. See Gryger v. Burke, 334 U.S. 728, 732 (1948) (“The sentence

as a . . . habitual criminal is not to be viewed as . . . additional penalty for earlier

crimes. It is a stiffened penalty for the latest crime, which is considered to be an

aggravated offense because [it is] a repetitive one.”); United States v. Abraham,

386 F.3d 1033, 1038 (11th Cir. 2004) (holding the federal “three strikes law”

mandating a life sentence for a defendant convicted of a serious violent felony who

was previously convicted of “one or more serious violent felonies and one or more

serious drug offenses” did not violate the ex post facto clause for the reasons set

forth in Gryger); Reynolds, 215 F.3d at 1213 (holding application of Armed Career

Criminal Act did not violate the ex post facto clause even if the conviction on




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which the enhancement was based predated the Act). Thus, Jackson’s argument

lacks merit.

                                         III.

      For the foregoing reasons, we affirm Jackson’s convictions and sentence.

      AFFIRMED.




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