                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4254


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

EARL DANIELS,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Aiken.   Margaret B. Seymour, Chief District
Judge. (1:10-cr-00968-MBS-13)


Submitted:   November 9, 2012              Decided:   December 20, 2012


Before WYNN and    DIAZ,    Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


J. Thomas McBratney, III, MCBRATNEY LAW FIRM, P.A., Florence,
South Carolina, for Appellant.      William N. Nettles, United
States Attorney, Julius N. Richardson, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            After a jury trial, Earl Daniels was found guilty of

conspiracy to distribute five kilograms or more of cocaine, 280

grams or more of cocaine base, and a quantity of marijuana.                           He

received a life sentence.                  On appeal, Daniels asserts, under

Batson v. Kentucky, 476 U.S. 79 (1986), that the Government’s

reasons for striking a black juror were pretext for purposeful

race discrimination.

            At    jury     selection,        the    Government     was     given    seven

peremptory       strikes       and    Daniels      was   given    eleven     peremptory

strikes     in    selecting          the   jury     of   twelve    jurors     and     two

alternates from a pool of thirty-two potential jurors.                              After

both parties exercised their strikes, Daniels raised a Batson

challenge.       On appeal, Daniels only challenges the Government’s

use of a peremptory strike on juror number 256, who was black.

            The Government explained that the juror’s son had his

license suspended and the juror had to provide transportation to

him at the end of the workday.                     The Government stated it was

concerned that the juror would be anxious to leave at the end of

the   day   to    pick    up    his    son   and    that   he    may   not   be    paying

attention to the trial proceedings.                  The Government offered that

the   reason     that    gave    it    the   most    concern,     however,     was    the

juror’s response on the juror questionnaire that he would be “as

fair as I can.”          The Government stated that it was not confident

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that the juror “could be fair in these circumstances.”                 After

the Government concluded, defense counsel said “I don’t have any

response to that, your Honor. . . . I know that his answers are

racially neutral.”       The court replied, “[H]is answers . . .

appear to be race neutral, so I don’t – what’s your basis for

your motion?”     Counsel responded, “I withdraw it.”                After a

quick exchange with the court stating that counsel did not have

to withdraw the motion, defense counsel then said, “Judge, [sic]

prefer you rule on it.”    The court then denied the motion.

          The    Equal   Protection       Clause   prohibits   the   use   of

peremptory challenges based solely on race or gender.                Batson,

476 U.S. at 86; J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127,

128-29 (1994).     Great deference is given to a district court’s

determination of whether a peremptory challenge was based on a

discriminatory motive, and the court’s ruling is reviewed for

clear error.     United States v. Farrior, 535 F.3d 210, 221 (4th

Cir. 2008); Jones v. Plaster, 57 F.3d 417, 421 (4th Cir. 1995).

Generally, a Batson challenge consists of three steps:               (1) the

defendant makes out a prima facie case of discrimination; (2)

the Government offers a race-neutral explanation; and (3) the

trial court decides whether the defendant has carried his burden

and proved purposeful discrimination.          Purkett v. Elem, 514 U.S.

765, 767-68 (1995).



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               Once     the        neutral     explanation             is       presented,        the

complaining party must prove purposeful discrimination.                                    Batson,

476 U.S. at 98.          A movant may show purposeful discrimination by

demonstrating that the opposing party’s explanation is a mere

pretext for racial discrimination.                              Farrior, 535 F.3d at 221.

The party must “show both that [counsel’s stated] reasons were

merely pretextual and that race was the real reason for the

strike.”       United States v. McMillon, 14 F.3d 948, 953 (4th Cir.

1994).     In making this showing, the party “‘may rely on all

relevant       circumstances          to   raise           an    inference        of    purposeful

discrimination.’”             Golphin v. Branker, 519 F.3d 168, 179 (4th

Cir.    2008)    (quoting          Miller-El          v.   Dretke,        545    U.S.     231,   240

(2005)).

               Here,         the     Government                 offered     a          race-neutral

explanation, and the district court accepted that explanation.

Importantly, Daniels did not make a claim of pretext in response

to   the   Government’s            explanation.                 Instead,        defense    counsel

acknowledged          that    the     explanations              were   race-neutral.             The

failure to argue pretext after the challenged strikes have been

explained constitutes a waiver of the initial Batson objection.

See Davis v. Baltimore Gas & Elec. Co., 160 F.3d 1023, 1027 (4th

Cir. 1998).           In Davis, we joined several circuits in holding

“that    the    movant’s       failure       to       argue      pretext     [after       the    non-



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movant   proffers    race    neutral        reasons    for     the     strikes]

constitutes a waiver of the initial objection.”              Id.

          We therefore conclude that Daniels has waived review

of his Batson challenge on appeal by failing to argue that the

Government’s   proffered    reasons       for   striking   juror     number   256

were pretextual.    We affirm the judgment.           We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.

                                                                       AFFIRMED




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