                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 10-12594                ELEVENTH CIRCUIT
                                                              MARCH 25, 2011
                           Non-Argument Calendar
                                                                JOHN LEY
                         ________________________
                                                                 CLERK

                   D. C. Docket No. 1:09-cr-20672-WMH-1

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

EDDIE LEE HUDSON,

                                                           Defendant-Appellant.


                         ________________________

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

                               (March 25, 2011)

Before TJOFLAT, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:

     Eddie Lee Hudson appeals his convictions for possession of a firearm by a
convicted felon, possession of crack cocaine, and possession of a firearm during a

drug trafficking offense, in violation of 18 U.S.C. §§ 922(g)(1) and 924(c), and

21 U.S.C. § 841(a)(1). Hudson argues that the district court erred in allowing the

government to exercise three of its six peremptory challenges during jury selection

to exclude black jurors, in violation of the Supreme Court’s decision in Batson v.

Kentucky, 476 U.S. 79 (1986).

                                       DISCUSSION 1

           The Equal Protection Clause prohibits the government from using

peremptory challenges to exclude potential jurors on account of their race. Batson,

476 U.S. at 89. The resolution of a Batson objection involves a three-step, burden-

shifting inquiry. United States v. Houston, 456 F.3d 1328, 1335 (11th Cir. 2006).

First, the defendant must set forth a prima facie case that discriminatory animus

motivated the government’s peremptory strikes. Id. Second, once the prima facie

case is established, the burden shifts to the government to provide a race-neutral

reason for its exercise of the peremptory strikes. Id. Third, the burden shifts back

to the defendant to establish that the government’s stated reasons are a mere

pretext for discrimination. Id. at 1338. Where the district court elicits non-

discriminatory reasons for the exercise of the peremptory strikes and rules on the


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        We review a district court’s ruling on a Batson challenge for clear error. United States
v. Houston, 456 F.3d 1328, 1334 (11th Cir. 2006).

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ultimate issue of discrimination, the first step of the Batson inquiry is rendered

moot and we review only “the prosecutor’s articulation, and the judge’s

acceptance, of the stated justifications of the strikes.” Houston, 456 F.3d at 1336.

        The venire in this case consisted of forty-seven potential jurors, five of

whom were black. Of the five black potential jurors, one ultimately was selected

to serve on the jury that convicted Hudson. The government used peremptory

challenges to strike three of the black members of the venire—Jurors 3, 15 and 42.

Hudson objected to each of these strikes on the ground that they violated Batson.

In response, the government explained that it wished to strike Juror 3 because she

seemed equivocal as to whether her religious views would affect her ability to

render a guilty verdict, and that it wished to strike Jurors 15 and 42 because they

had several family members with prior felony convictions. The court permitted the

government to exercise these strikes and excluded Jurors 3, 15 and 42 from the

jury.

        Because the district court here elicited non-discriminatory reasons from the

government and ruled on the issue of discrimination, we review only the district

court’s application of the second and third steps of Batson. We thus begin by

evaluating the legitimacy of the race-neutral reasons articulated by the government

in support of its exercise of peremptory strikes. The government’s explanation for



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a strike need not be “persuasive, or even plausible; so long as the reason is not

inherently discriminatory,” it suffices. Rice v. Collins, 546 U.S. 333, 338 (2006)

(internal quotations omitted). This Court has found both of the justifications

articulated by the government here to be facially legitimate, race-neutral reasons

for exercise peremptory strikes. See Houston, 456 F.3d at 1337 (holding that

family criminal history is a facially legitimate, race-neutral justification for

exercising peremptory strike); United States v. Blackman, 66 F.3d 1572, 157 (11th

Cir. 1995) (finding no Batson violation where prosecutor struck juror who stated

that his religious beliefs would impair his ability to render judgment in a criminal

case). Accordingly, the district court did not err in concluding that the government

had articulated legitimate, race-neutral explanations for the disputed peremptory

strikes.

       Moving on to the third step of the Batson inquiry, we must next evaluate

whether Hudson has demonstrated that the government’s stated reasons were a

mere pretext for discrimination. The government’s articulated reason for striking

Juror 3 was that she made equivocal statements in response to a question about

whether she held religious beliefs that might impair her ability to return a guilty

verdict of guilty. In support of his argument that this articulated reason was mere

pre-text, Hudson asserts only that if the government believed her answer was



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equivocal, it should have further questioned the witness to clarify her beliefs.

According to Hudson, we can infer discriminatory intent from the government’s

failure to ask Juror 3 additional questions on this topic. However, Hudson points

to nothing in the record indicating that we should infer such an intent. Indeed, the

prosecutor challenged for cause at least one other juror who stated with more

certainty that her religious beliefs might affect her ability to find someone guilty.

Without more to support the inference Hudson would have us draw, we cannot say

that the district court clearly erred in crediting that government’s race-neutral

explanation for the exercise of its peremptory strike.

      As to Jurors 15 and 42, Hudson argues that, even if it is facially legitimate to

strike a juror based on family criminal history, we should infer purposeful

discrimination because crime affects blacks more than whites. While this Court

has recognized that a district court may, under certain circumstances, construe the

government’s reliance on criminal history as circumstantial evidence of

discriminatory intent, a district court is not required to draw that conclusion.

Houston, F.3d at 1328. Hudson provided no independent evidence to suggest that

the government’s reliance on the jurors’ family criminal history was a mere pretext

for discrimination. Hudson does not argue on appeal, nor did he at trial, that Jurors

15 and 42 were treated differently than similarly situated non-black venire



                                           5
members, nor does he point to anything in the government’s questions themselves

to suggest discriminatory intent. Moreover, the fact that at least one black venire

member was selected to serve on the jury undermines Hudson’s assertion that the

government was motivated by racial animus. United States v. Puentes, 50 F.3d

1567, 1578 (11th Cir. 1995). Thus, on this record, we cannot say the district court

erred in concluding that Hudson failed to satisfy his burden of demonstrating that

this reason was mere pretext for discrimination.

      AFFIRMED.




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