                     NOT RECOMMENDED FOR PUBLICATION
                            File Name: 06a0332n.06
                              Filed: May 10, 2006

                                       No. 04-2371

                      UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

              v.                                              On Appeal from the United
                                                              States District Court for the
JARROD JOHNSON,                                               Eastern District of Michigan

       Defendant-Appellant.


                                                        /

Before:       GUY, DAUGHTREY, and CLAY, Circuit Judges.

       RALPH B. GUY, JR., Circuit Judge.          Defendant Jarrod Johnson appeals from his

convictions and sentences for armed bank robbery, using a firearm during the robbery, and

being a felon in possession of a firearm. He contends that (1) the prosecutor unlawfully

excluded potential black jurors from the jury in violation of Batson v. Kentucky, 476 U.S. 79

(1986), (2) the district court improperly allowed the introduction of evidence of a past

criminal act, (3) the district court denied him a fair trial, and (4) his sentence should be

vacated in light of United States v. Booker, 543 U.S. 220 (2005). After carefully reviewing

the record, we find no error in defendant’s convictions. We vacate his sentence, however, and

remand for resentencing.

                                             I.
No. 04-2371                                                                                2

       On December 10, 2002, Johnson, Dorian Sykes, and Brian Gibson robbed the Fifth

Third Bank branch in Warren, Michigan. The day before the robbery between 4:30 and 5:00

p.m., two black men entered the bank, and the taller one inquired about opening an account.

From a surveillance photograph depicting one of the individuals who had been in the bank just

before closing on the day before the robbery, Tameika Lee, Johnson’s girlfriend, identified

Johnson. On the day of the robbery, Johnson and Sykes entered the bank masked. Johnson

brandished a gun, ordered bank employees to the ground, and threatened to kill them if they

did not give the robbers all the money. Bank employees described the gun as having an 8- to

12-inch black gun barrel with vent holes and a bottom ammunition clip section. After

Johnson and Sykes collected $196,000 in cash from the bank’s drawers and vault, they ran

to an adjacent restaurant where Gibson was waiting in a green Chevy Trailblazer.

       The Trailblazer’s license plate number was traced to Gibson, who had acquired the

plate when he purchased a car from his sister, LaShawn Gibson. Ms. Gibson identified Sykes

from the bank’s surveillance photos, and she identified the other man in the photos as one of

Sykes’s friends. Ms. Gibson searched her basement and found a bag containing $8,770 that

was traced to the robbed bank.

       Tameika Lee owned a 2002 green Chevy Trailblazer. She loaned it to Johnson the day

of the robbery because he said he needed it to drive to a job interview. He returned in the

afternoon wearing a new Rolex watch with diamonds and a new pair of Cartier sunglasses.

Johnson had purchased two Rolex watches with diamonds and two pairs of Cartier sunglasses

from a pawn shop earlier that day for $15,400 in cash. Johnson gave Lee $100 in cash, and

when she asked him if the money was intended to keep her quiet, he said yes. FBI agents
No. 04-2371                                                                                3

arrested Sykes on December 13, 2002, and after speaking with Sykes, agents arrested

Johnson. The agents searched Johnson’s home in Detroit, where they found a loaded Tech

9 machine-gun pistol, several types of ammunition (38-caliber ammunition, 22-caliber

ammunition, a clip for a 22-caliber rifle), a box for a 380 handgun, shoes worn during the

robbery, and documents linking Johnson to the residence.

       Gibson pleaded guilty to the robbery and testified at Johnson’s trial to the following

events. Sykes, Gibson’s nephew, introduced Gibson to Johnson two days before the robbery.

The following day, Gibson and Sykes picked up Johnson from Johnson’s father’s home in

Detroit. Sykes told Gibson that he and Johnson had cased the Fifth Third Bank and they

intended to case it again that day with the intent to rob it the following day. They asked

Gibson to assist them by serving as the get-away driver. Gibson agreed on the condition that

they rob the bank with a note and not use any firearms. Johnson and Sykes assured him that

they had just robbed a bank unarmed two days earlier, on December 7, 2002. Under their

plan, Johnson would be the lookout at the door, and Sykes would hand the note to the teller.

Gibson drove with Sykes and Johnson to the bank, but he stayed in the car while they cased

the building. Johnson said that they would use his girlfriend’s green Chevy Trailblazer, and

Gibson agreed to provide a non-traceable license plate.

       The next morning, Johnson and Sykes picked up Gibson in the Trailblazer. They went

to Johnson’s father’s house on Dorothy Street in Detroit where Johnson changed clothes and

returned to the car carrying a Tech 9 assault weapon wrapped in a blanket. The gun was black

with vent holes in the barrel. When Gibson questioned the presence of the gun, Sykes told

him it was too late to change their plans.
No. 04-2371                                                                                  4

       Gibson parked the Trailblazer in a back corner of the parking lot of an Olive Garden

restaurant located next to the bank. Gibson changed the license plate, and everyone donned

their masks and gloves. As Sykes and Johnson entered the bank, Gibson saw Johnson

carrying the gun and a duffel bag. When they exited the bank running, Johnson had the gun

and the duffel bag, and Sykes had the money in his pockets and hands. After driving a few

blocks away, Gibson pulled over and changed the license plate, throwing away the one he

thought was untraceable. Both Johnson and Sykes told Gibson what had occurred in the bank

as they drove into the garage at Johnson’s home in Detroit. Inside the house, they counted

the money and split it up. Gibson was paid $40,000, and Sykes and Johnson split the rest.

Gibson left the state and shortly after was arrested by the FBI, to whom he admitted his

participation in the bank robbery.

       After his extradition to Detroit, Gibson was placed in the same holding cell as Johnson.

Johnson told Gibson he had used the money to buy an expensive watch for his father, a Celtics

outfit for himself, and that he had funneled some of the money to his aunt to pay his

anticipated upcoming legal expenses. Johnson also told him that he knew Sykes had spoken

with the FBI, but that Johnson and Gibson should stick to their alibi given Sykes’s history of

mental health problems. In September 2003, Gibson again saw Johnson, this time at Milan

prison, where Johnson warned Gibson that he and his family should be “real careful” should

Gibson decide to testify. Gibson and Johnson crossed paths next in a Wayne County holding

cell in April 2004. Johnson told him he was aware that Gibson had been talking to the FBI

and threatened that he (Johnson) carried a gun and Gibson should know what would happen
No. 04-2371                                                                                   5

if he testified. The morning of his testimony, Gibson saw Sykes and Johnson in the holding

cells, and they named about 12 family members who could be hurt if Gibson testified.

       Sykes, having already pleaded guilty, testified for the defense. He claimed that only

he and Brian Gibson were involved in the bank robbery. Sykes admitted that at his guilty plea

hearing, he had testified that Johnson had committed the robbery with him, but he claimed he

had been coerced into saying that. In rebuttal, FBI Agent Fleming explained that Johnson,

in an interview with the FBI, admitted his involvement in the robbery, including his

participation in planning the robbery, casing the bank, and purchasing the masks and gloves.

Johnson also admitted that he held the Tech 9 firearm during the robbery, and he and the

others divided the spoils at his home. He also admitted that he had purchased the Rolex

watches, the Cartier sun glasses, and a Chevy Impala with the robbery proceeds. Agent

Fleming also had similar meetings with Sykes, who had given him a version of events similar

to that given by Johnson.

       The district court took judicial notice that the firearm traveled in interstate commerce,

and Johnson stipulated to the federally insured status of the bank and to his prior felony

conviction.

       The jury convicted Johnson of bank robbery, in violation of 18 U.S.C. §§ 2113(a) &

2 (count one); using, carrying, and brandishing a firearm during and in relation to a crime of

violence, in violation of 18 U.S.C. §§ 924(c)(1) & (2) (count two); and felon in possession of

a firearm, in violation of 18 U.S.C. § 924(g)(1) (count three). The district court sentenced

Johnson under the sentencing guidelines to concurrent sentences of 115 months’

imprisonment on counts one and three and an 84-month consecutive sentence as to count two,
No. 04-2371                                                                                   6

in addition to $166,230 in restitution to Fifth Third Bank. At the sentencing hearing, the

district court noted that the Supreme Court might soon rule that the guidelines should no

longer be used or at least they would not be mandatory, and the court stated that if the

guidelines were not in place, it would have sentenced Johnson to a total of 180 months.

                                              II.

A.     The Government’s Use of Peremptory Challenges

       The district court allowed defendant eleven peremptory challenges and the government

seven. In response to a question about whether he might have any bias against a witness who

cooperated with the government, juror number two, a black man, admitted, “Well, it doesn’t

sway any way in my decision making but, you know, naturally, yeah.” When the district court

denied the prosecutor’s challenge for cause, the prosecutor exercised a peremptory challenge

against the juror. The prosecutor exercised two more peremptory challenges without incident.

When the prosecutor exercised her fourth peremptory challenge against juror number four,

a black woman, defendant requested a sidebar and stated, “the prosecutor has used four

peremptories, two of them have been African-American. I didn’t object to the first one, there

was some really [sic] question there, but I do object to this one.” The court noted the

objection and advised defense counsel, “If you have anything else to say about it, say it at the

end of the whole process.” The prosecutor used one more challenge without incident.

Defendant did not bring the issue up again before the district court.

       The Equal Protection clause of the Fourteenth Amendment prohibits the prosecution

from excluding potential jury members on account of their race. Batson, 476 U.S. 79.

Johnson, who is black, argues that the government denied him his equal protection rights by
No. 04-2371                                                                                  7

striking two potential black jurors from the prospective jury panel. We review a challenge

to a district court’s determination of a Batson challenge for clear error. United States v.

Copeland, 321 F.3d 582, 599 (6th Cir. 2003). To establish a Batson violation,

       the complaining party must first made a prima facie showing that the
       peremptory challenge was based on race. If the complaining party establishes
       a prima facie case, the burden of persuasion then shifts to the party making the
       strike to articulate a race-neutral explanation for removing the juror in question.
       This explanation ‘need not be particularly persuasive, or even plausible, so long
       as it is neutral.” Once a race-neutral explanation is produced, the complaining
       party must prove purposeful discrimination. Purposeful discrimination may be
       shown by demonstrating that the proffered explanation is merely a pretext for
       racial motivation. Throughout the Batson inquiry, the ultimate burden of
       persuasion always rests with the party challenging the strike.

United States v. Jackson, 347 F.3d 598, 604 (6th Cir. 2003) (internal citations omitted).

Johnson cannot establish a prima facie case. The prosecutor’s strike of two potential black

jurors is not enough to raise an inference of discrimination without something more, such as

information concerning the ultimate composition of the jury or the number or percentage of

black jurors. In United States v. Sangineto-Miranda, 859 F.2d 1501, 1519-22 (6th Cir. 1988),

we held that in circumstances more extreme than those in this case, where the prosecution

used all or nearly all of its peremptory challenges to exclude members of an identifiable

minority racial group, the defendant must still raise an inference of discrimination through

other relevant factors to satisfy his prima facie burden. We explained:

               We reject [the defendant]’s underlying premise that an inference of
       intentional discrimination will always arise if, without more, there is a showing
       that the prosecution used all its peremptory challenges to exclude blacks. We
       reject such a per se rule, particularly because it does not take into account
       considerations that may be very relevant, including the percentage of the racial
       group in the district jury pool or original jury; the pattern of strikes exercised
       by the defense; the number of strikes available to the government; and the
       composition of the ultimate jury sworn.
No. 04-2371                                                                                     8

              The Supreme Court’s mandate in Batson to consider all the facts and
       circumstances means that we cannot lay down clear rules as to the specific
       numbers or percentages that will constitute or refute a prima facie case.
       However, we can state a number of factors which tend to support or refute the
       inference of discrimination necessary to make a prima facie case. Our
       discussion of these factors assumes a case such as we have here, where the
       government’s peremptory challenges have all (or mostly) been against members
       of a cognizable racial group to which the defendant belongs.

               If, after the jury selection process has ended, the final jury sworn has a
       percentage of minority members that is significantly less than the percentage
       in the group originally drawn for the jury (or in the whole jury pool or in the
       district), then that would be a factor pointing toward an inference of
       discrimination. If, on the other hand, the percentage of minority members in
       the ultimate jury is the same or greater, that would be a factor tending to negate
       the inference of discrimination.

               If there are minority members on the jury but the prosecutor did not use
       all its peremptory challenges, that would be a factor tending to refute
       discrimination. However, if all the prosecutor’s challenges were used, that fact
       would point toward an inference of discrimination.

              Moreover, if the defense did not display a pattern of strikes against non-
       minority members, that fact might support an inference of discrimination. Yet,
       if the defense has clearly engaged in a pattern of striking non-minority
       members, that might make an inference of discrimination arising from the
       prosecution’s opposing strikes less tenable. As an extreme example, if the
       defense strikes all six whites from an original jury panel of six blacks and six
       whites, there is a lesser inference of discrimination from the fact that the
       prosecution’s subsequent strikes fall solely on the six remaining blacks.

       Other than the fact that two out of five peremptory challenges were used to exclude

black jurors, Johnson presents absolutely no other factors for us to consider that might raise

an inference of discrimination. That failure, combined with his failure to pursue the issue at

the close of jury selection as the district court suggested, and his attorney’s admission that the

prosecutor had good reason aside from race to strike one of the black potential jurors, requires

us to reject his Batson challenge.
No. 04-2371                                                                                 9

B.     Evidence of a Previous Bank Robbery

       Gibson testified that Sykes and Johnson talked to him on December 9, 2002, about a

robbery they had completed on December 7, and defendant objected on the ground that the

testimony was not relevant. The district court overruled the objection when the prosecutor

responded that it was “a part of the coconspirator statements.” Gibson then reported that

Sykes and Johnson told him that the $9,600 that they claimed to have won from a casino on

December 8 was actually from a bank robbery they committed on December 7. Defendant

renewed his objection, arguing that the evidence was not within the bank robbery conspiracy

charged in this case. The government responded that the statements were made in the context

of recruiting Gibson to participate in another bank robbery. The Court advised her to end that

line of questioning. When Gibson stated that he told Johnson he would participate in the

robbery if no gun was used, and the prosecutor asked him if Johnson told him that the

December 7 robbery was completed with just a note, defendant objected because the court had

prohibited further inquiry into that area. The court sustained the objection.

       At the end of the day, Johnson moved for a mistrial, arguing that he was prejudiced by

the mention of the other bank robbery. The court denied the motion, and the prosecutor

suggested instructing the jury about the limited purpose of the evidence of another robbery.

The court agreed to give such an instruction but left the decision to defense counsel’s

discretion, stating that the court would be available, if needed, the following morning.

Johnson never requested or submitted a proposed instruction.

       Johnson contends that Gibson’s statements were evidence of a past criminal act, which

required the government to give Johnson pretrial notice of such evidence and also required
No. 04-2371                                                                                           10

the district court to evaluate several factors before admitting the potentially prejudicial

statement.1 See Fed. R. Evid. 404(b); United States v. Merriweather, 78 F.3d 1070 (6th Cir.

1996). We review evidentiary issues for abuse of discretion. United States v. Mack, 258 F.3d

548, 553 (6th Cir. 2001).

       The government argues that the statements were not introduced as 404(b) evidence, but

rather as background evidence relating to Johnson’s recruitment of Gibson into the robbery

scheme by assuring him that he had successfully robbed a bank a few days before with no

firearm. “Proper background evidence has a causal, temporal or spatial connection with the

charged offense. Typically, such evidence is a prelude to the charged offense, is directly

probative of the charged offense, arises from the same events as the charged offense, forms

an integral part of a witness’s testimony, or completes the story of the charged offense.”

United States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000).

       Gibson’s statement about Johnson’s previous bank robbery was not introduced as

“other acts” evidence under Rule 404(b), but was offered as background evidence relative to

Johnson’s recruitment of Gibson into the conspiracy to rob the bank. This court has held that

similar evidence may be introduced as background evidence. In United States v. Wesley, 417

F.3d 612, 621-22 (6th Cir. 2005), the defendant made a statement to a person he wanted to

recruit into a bank robbery conspiracy. On the way to case the bank, the defendant said that

after he and another man committed a crime previously, neither testified against the other and



       1
        We note that although the government has never conceded that the evidence is 404(b)
evidence, it did file a motion in limine alerting the defense and the court before trial that it planned
on introducing the statements.
No. 04-2371                                                                                         11

they went to prison together. The defendant argued that the statement was improper Rule

404(b) evidence, but this court held that it was properly admitted as background evidence.

It was intertwined with the attempted bank robbery offense, we reasoned, because the

statement was made on the way to case the bank, was part of the planning of the robbery, and

was relevant to establish the defendant’s intent. Id..2 In United States v. Holley, 57 Fed.

App’x 639, 641 (6th Cir. 2003) (unpublished decision), the government introduced evidence

that the defendant, who was on trial for arson, had told a potential coconspirator about his

previous arsons. On appeal, the defendant argued that the evidence was improper 404(b)

evidence. Id. at 640. We disagreed, holding that the evidence was not introduced to show a

propensity to commit arson, but was rather admitted as background evidence that explained

how the conspiracy arose, and the statements were made in an attempt to recruit a

coconspirator. Id. at 641. Likewise, in this case, Johnson’s statements about a previous bank

robbery were not introduced to show Johnson’s propensity to commit crime, but was

background evidence that went to show that Johnson recruited a get-away driver as part of his

bank-robbery plan.

       Furthermore, the government offered another valid reason why the statements were

relevant. The government knew that Gibson’s credibility would be attacked by the defense


       2
        The defendant in Wesley also argued that the evidence should have been excluded under
Rule 403 because its probative value was substantially outweighed by the danger of unfair prejudice.
This court agreed, holding that it raised a considerable danger of the jury deciding guilt on an
impermissible factor, the defendant’s prior incarceration, and that “[t]his is particularly a concern
where the evidence presents a close question on the sufficiency of the evidence.” Id. at 622. In this
case, Johnson does not make the argument that the evidence should have been excluded under Rule
403, and even if he had, this is a case where the sufficiency of the evidence is not a close question.
No. 04-2371                                                                                 12

because of the plea bargain he reached with the government. The plea bargain dropped the

firearm charge, among others, against Gibson. One reason it was dropped was because

Gibson said he did not know a firearm would be used in the robbery. Thus, the government

maintains that what Gibson knew at the time he joined the conspiracy was relevant to his

credibility.

       Finally, even if we were to conclude that the district court erred by allowing the

statements, we would find the error harmless because of the overwhelming, unchallenged

evidence indicating Johnson’s guilt.

C.     Johnson’s Right to a Fair Trial

       Johnson claims that the district court was biased against him, as evidenced by the

following four events during the trial, and that the bias denied him his right to a fair trial.

First, Johnson asserts that the following exchange exhibited the court’s hostility toward

Johnson’s attorney:

       Q.      After this bank robbery were you very depressed?

       A.      Yes.

       Q.      Were you talking of committing suicide?

       A.      No, I had thoughts of it.

                     MS. CARLSON: Objection as to relevance as to his state
               of mind after the bank robbery.

                     THE COURT: I don’t see how it’s relevant unless you’ve
               got something else.

                       MR. BERGER: Well, okay. His observations after the
               bankruptcy (sic). He’s told us about alleged statements made
               after the bankruptcy and his state of mind at that time.
No. 04-2371                                                                              13

                     THE COURT; Bankruptcy?

                     MR. BERGER: Bank robbery. Same thing.

                     THE COURT: Well, I –

                     MR. BERGER: I’m going no further in this area, okay.

                     THE COURT: Okay.

                     MR. BERGER: Okay.

                     THE COURT: Listen, you don’t say okay to me.

                     MR. BERGER: I’m sorry, sir.

                     THE COURT: I tell you –

                     MR. BERGER: Okay.

                    THE COURT: – When it’s okay with me. You don’t
              respond that way unless you want some sanctions talked about.

                     MR. BERGER: I meant no disrespect.

                    THE COURT: You’ve done it two or three times today.
              Don’t do it again.

                     MR. BERGER: Okay. I meant no disrespect.

                     THE COURT: Good.

                     MR. BERGER: I have nothing further, your Honor.

       Second, Johnson claims that the district court “threatened” that he would have to

testify. The court’s statements took place after defense counsel received permission to have

Johnson try on shoes that were used in the robbery and were found at his residence. The

district court warned:
No. 04-2371                                                                                14

                     THE COURT: Okay. Go ahead. If Mr. Johnson says
              anything, however, he’s going to testify.

                     MR. BERGER: I’m aware of that. Mr. Johnson, would
              you come up here and sit down. Mr. Johnson, do not say a word,
              but take off your shoes, the black shoes you’re wearing now.

                      THE COURT: I’m a little uncertain, I’m not trying to
              stop you, but I’m a little uncertain how we’re going to tell what
              the fit is if Mr. Johnson doesn’t say anything, but go ahead, if
              you think you can.

      Third, Johnson contends that the district court improperly cut off his cross-examination

of Gibson regarding Gibson’s plea agreement:

      Q.      Mr. Gibson, I wanted to ask you a few questions about your plea
              agreement, the one that you entered into. Are you familiar with
              that?

      A.      Yes.

      Q.      The plea agreement that you entered into resulted in your getting
              how many months?

      A.      87.

      Q.      But the sentence that was imposed was imposed by this Judge; is
              that correct?

      A.      Yes.

      Q.      Did the plea agreement specify what the maximum or minium
              would be as to the sentence?

      A.      I’m not sure.

      Q.      Do you have a copy of it with you?

      A.      No, I do not.

      Q.      When is the last time you saw it?
No. 04-2371                                                                        15

      A.      Probably September 2003 at my sentencing.

      Q.      Did the plea agreement result in any charges being dropped?

      A.      Yes.

      Q.      And was that the felony firearm?

      A.      Yes, it was.

      Q.      And what did that save you?

      A.      I’m not sure. I believe seven years to be ran consecutively.

      Q.      So it saved you seven years – your impression is that it saved you
              seven years?

      A.      That would probably been up to Judge O’Meara. I don’t know.

      Q.      Well, you do know that the Count 2, dealing with a firearm, was
              dismissed, do you not?

      A.      Yes, I know that.

      Q.      And if it was dismissed Judge O’Meara could not sentence you
              on that firearm charge, could he?

      A.      No.

      Q.      And therefore when you negotiated a dismissal of the firearm
              charge, do you feel that that saved you seven years?

      A.      No, not necessarily. I feel that it caused the prosecution not to
              charge me with that, given the facts that surrounding the case
              after their investigation.

      Q.      Did you say on direct examination that it saved you seven
              consecutive years?

      A.      No, I said on direct examination that I could have been charged
              up to according to what I’ve been told. I don’t know for sure.
              I’m not good at that with the law, up to additional seven years.
No. 04-2371                                                                               16

              I would have to study the law before I could answer you correctly
              as far as exactly how much time it carries, I’m not sure.

                     THE COURT: What are we doing this for, I mean, this is
              a very complicated area for lawyers and for judges. What are we
              trying to get this kind of information from the witness for?

                      MR. BERGER: I’m trying to indicate motivation for
              testifying like he is now.

                     THE COURT: Well, that’s there. You don’t have – if
              you want to argue it, you don’t have to find out whether it’s 57
              or 58 months.

                    MR. BERGER: No, and I also feel his credibility is
              involved. Can I just ask a few more questions in this area?

                     THE COURT: You just asked a few more questions. Go
              on to something else.

      Fourth, Johnson claims that the district court denigrated the testimony of defense-

witness Sykes during the government’s cross examination by stating:

                     THE COURT: All right. Unless you have something
              important further to get out of this witness who is uncooperative
              and --

                     MS. CARLSON: I do, your Honor.

                     THE COURT: -- not doing himself or anybody else any
              good, I think we should conclude this testimony very quickly,

Johnson moved for a mistrial because of this statement, but the district court denied the

motion.

      We review the denial of a motion for mistrial for abuse of discretion. United States v.

Anderson, 353 F.3d 490, 502 (6th Cir. 2003), cert. denied, 541 U.S. 1068 (2004). We also

review a district court’s conduct during a trial under an abuse of discretion standard.
No. 04-2371                                                                                     17

McMillan v. Castro, 405 F.3d 405, 409 (6th Cir. 2005). Since Johnson only raised an

objection before the district court as to the comment about Sykes, we review the other

allegations of bias for plain error. Plain error is “limited to those harmful ones that are so rank

that they should have been apparent to the trial judge without objection, or that strike at the

fundamental fairness, honesty, or public reputation of the trial.” United States v. Causey, 834

F.2d 1277, 1281 (6th Cir. 1987).

       In Liteky v. United States, 510 U.S. 540 (1994), the Supreme Court provided guidance

as to when a district court’s remarks or rulings amount to a level of bias that denies a

defendant a fair trial.

       [O]pinions formed by the judge on the basis of facts introduced or events
       occurring in the course of the current proceedings, or of prior proceedings, do
       not constitute a basis for a bias or partiality motion unless they display a deep-
       seated favoritism or antagonism that would make fair judgment impossible.
       Thus, judicial remarks during the course of a trial that are critical or
       disapproving of, or even hostile to, counsel, the parties, or their cases,
       ordinarily do not support a bias or partiality challenge. They may do so if they
       reveal on opinion that derives from an extrajudicial source; and they will do so
       if they reveal such a high degree of favoritism or antagonism as to make fair
       judgment impossible. . . . Not establishing bias or partiality, however, are
       expressions of impatience, dissatisfaction, annoyance, and even anger, that are
       within the bounds of what imperfect men and women, even after having been
       confirmed as federal judges, sometimes display. A judge’s ordinary efforts at
       courtroom administration—even a stern and short-tempered judge’s ordinary
       efforts at courtroom administration—remain immune.

Id. at 555-56.

       The first three of Johnson’s examples of alleged bias fit squarely within the Liteky

Court’s definition of what is not the sort of judicial bias that deprives a defendant of a fair

trial. The “okay” exchange merely exhibited the district court’s annoyance at defense

counsel’s disrespectful behavior. The warning that Johnson’s comments while trying on
No. 04-2371                                                                                     18

shoes would be considered testimony was the district court’s effort to protect Johnson’s right

not to testify. The district judge went out of his way to point out a potential pitfall to defense

counsel if counsel pursued the shoe-fitting, and by so doing assisted defense counsel in

making a more informed decision as to whether he should ask his client to try on the shoes

in front of the jury. The district court’s ruling cutting off defense counsel’s questioning of

Gibson regarding his plea agreement was an example of the court managing the trial by

restricting repetitive questioning and the asking of questions that the witness was unable to

answer.

       The court’s comment about the unhelpfulness of Sykes’s testimony is the most serious

of Johnson’s allegations of bias. In United States v. Slone, 833 F.2d 595, 597 (6th Cir. 1987),

we held that a trial court does have some discretion to inject itself into a trial and specifically

into witness testimony, and that it may be difficult to determine when a court has exceeded

its proper bounds. We identified the following relevant factors when determining whether a

court’s intrusion was improper:       “if a witness is difficult, if a witness’ testimony is

unbelievable and counsel fails to adequately probe, or if the witness becomes inadvertently

confused, judicial intervention may be needed.” Id., citing United States v. Hickman, 592

F.2d 931, 933 (6th Cir. 1979).

       In other cases where we have held that judicial comments or interference in witness

examination deprived a defendant of a fair trial, judicial actions far more intrusive were

involved. For example, in Hickman the district court interrupted defense counsel numerous

times, made numerous sua sponte objections that benefitted the prosecution, and interjected

itself several times during witness testimony by asking extensive questions that either
No. 04-2371                                                                                    19

rehabilitated the prosecution’s witnesses or undermined the defendant’s. We concluded that

the court’s frequent and one-sided intrusions deprived the defendant of a fair trial. Id. at 934.

We also found in Nationwide Mutual Fire Insurance Co. v. Ford Motor Co., 174 F.3d 801,

805-08 (6th Cir. 1999), that a district court’s demeanor deprived the plaintiff of a fair trial by

interrupting the plaintiff’s opening statement six times, interrupting the plaintiff’s witnesses,

questioning the plaintiff’s witnesses about matters unrelated to the scope of direct

examination, admonishing plaintiff’s witnesses for not being short enough in answering

questions, repeatedly suggesting to defense counsel that he ought to register objections to

certain testimony, pointing at defense counsel prompting him to object, and negatively

commenting on plaintiff’s theory of the case.

       In this case, the district court’s interruption of the government’s cross-examination of

Sykes did not “so clearly cross[] the line to reach that area of impermissible and prejudicial

behavior which would warrant reversal.” United States v. Tilton, 714 F.2d 642, 644 (6th Cir.

1983); see also McMillan, 405 F.3d at 412. Any negative impact on the jury was mitigated

by several jury instructions informing them that any comments made by the district court

should not influence their determination of guilt or innocence. The court instructed the jury:

                Another part of your job as jurors is to decide how credible or believable
       each witness was. This is your job, not mine. It’s up to you to decide if a
       witness’ testimony is believable and how much weight you think it deserves.
       You are free to believe everything a witness said or only part of it or none of
       it at all, but you should act reasonably and carefully in making these decisions.
       ...

              ....

              Do not interpret my rulings on [the lawyers’] objections as any
       indication how I think the case should be decided. My rulings were based on
No. 04-2371                                                                                        20

       the Rules of Evidence, not on how I feel about the case. Remember that your
       decision must be based only on the evidence that you saw and heard here in
       court.

               ....

              Let me finish up by repeating something I’ve said to you earlier:
       Nothing that I have said or done during this trial was meant to influence your
       decision in any way. You decide for yourselves if the Government has proved
       the Defendant guilty beyond a reasonable doubt.

       These instructions—combined with the fact that the court’s statement was an isolated

remark and an interruption of the prosecutor, not defense counsel—leads us to conclude that

there was no error in the district court’s conduct of Johnson’s trial sufficient to warrant

reversal. See United States v. Smith, 831 F.2d 657, 663 (6th Cir. 1987) (stressing the

importance of a district court’s instruction to the jury that it was not to infer the district court’s

opinion from any of its actions in finding that the district court’s questioning of a witness did

not warrant reversal); McMillan, 405 F.3d at 412 (finding that instructions similar to the ones

issued in this case were a factor in the court’s conclusion that limited intrusions by the district

court did not warrant reversal).

D.     Sentencing

       In Booker the Supreme Court ruled that the mandatory application of the Federal

Sentencing Guidelines violated defendants’ Sixth Amendment rights, and, accordingly, the

Court rendered the Guidelines advisory. Johnson did not raise a Sixth Amendment challenge

in district court, and therefore we review for plain error. United States v. Oliver, 397 F.3d

369, 377-78 (6th Cir. 2005). When a district court sentences a defendant under a mandatory
No. 04-2371                                                                                21

guidelines scheme, there is plain error. United States v. Barnett, 398 F.3d 516, 529 (6th Cir.

2005), cert. dismissed, 126 S. Ct. 33 (2005).

       Johnson argues that because the district court, which imposed Johnson’s sentence after

oral arguments in Booker but before the Court rendered its decision, indicated that it would

have sentenced Johnson to 180 months instead of 199 months if the Guidelines were not

mandatory, we should vacate his sentences and remand to the district court for resentencing.

The government agrees that remand is appropriate.

       We AFFIRM Johnson’s convictions but VACATE Johnson’s sentences and remand

for resentencing consistent with Booker and this court’s post-Booker precedents. Our remand

neither mandates nor prohibits the district court from imposing its previously set-forth

alternative sentence.
