                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                              File Name: 08a0241p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                    X
                               Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                     -
                                                     -
                                                     -
                                                         Nos. 06-6426; 07-5221
          v.
                                                     ,
                                                      >
 ROBERT KIMBREL,                                     -
                            Defendant-Appellant. -
                                                    N
                      Appeal from the United States District Court
                   for the Western District of Tennessee at Memphis.
               No. 03-20336—Jon Phipps McCalla, Chief District Judge.
                                             Argued: June 12, 2008
                                      Decided and Filed: July 3, 2008
             Before: KEITH and SUTTON, Circuit Judges; ACKERMAN, District Judge.*
                                              _________________
                                                    COUNSEL
ARGUED: Karimbumkara Jayaraman, LAW OFFICES OF K. JAYARAMAN, Memphis,
Tennessee, for Appellant. Jennifer Lawrence Webber, ASSISTANT UNITED STATES
ATTORNEY, Memphis, Tennessee, for Appellee. ON BRIEF: Karimbumkara Jayaraman, LAW
OFFICES OF K. JAYARAMAN, Memphis, Tennessee, for Appellant. Daniel T. French,
ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee. Robert
Kimbrel, Memphis, Tennessee, pro se.
                                              _________________
                                                  OPINION
                                              _________________
        SUTTON, Circuit Judge. Robert Kimbrel challenges his convictions and sentence for two
firearms-related crimes on several grounds, including a Batson challenge. We vacate and remand
for a new trial.
                                                          I.
        Memphis police officers stopped Kimbrel for driving a car with expired registration tags.
After discovering marijuana in the car, the officers arrested Kimbrel, and while conducting a safety

         *
          The Honorable Harold A. Ackerman, Senior United States District Judge for the District of New Jersey, sitting
by designation.


                                                          1
Nos. 06-6426; 07-5221                   United States v. Kimbrel                               Page 2


sweep of the vehicle they discovered a semiautomatic pistol with obliterated serial numbers. A
federal grand jury indicted Kimbrel for being a felon in possession of a firearm, see 18 U.S.C.
§ 922(g), and for possession of a firearm with obliterated serial numbers, see id. § 922(k).
        During voir dire, defense counsel exercised peremptory strikes against several potential
jurors, all but one of whom were white. When defense counsel moved to strike another white juror,
Lori Anne Goetz, the government raised an objection under Batson v. Kentucky, 476 U.S. 79 (1986).
After hearing from the parties, the court sustained the objection, finding that the government had
established a prima facie case of discrimination and that Kimbrel, “the party with the burden of
persuasion regarding a nondiscriminatory basis[,] ha[d] failed” to produce a facially neutral
justification for striking Goetz. JA 219. The jury convicted Kimbrel on both counts, and the court
subsequently sentenced him to 262 months of incarceration and five years of supervised release.
                                                  II.
                                                  A.
         Kimbrel challenges his convictions on several grounds, but one of them—his sufficiency-of-
the-evidence claim—deserves consideration before the others. If he is right about that, nothing else
(in this case) matters because the Double Jeopardy Clause would bar re-prosecution. See Joseph v.
Coyle, 469 F.3d 441, 453–54 (6th Cir. 2006).
        While sufficiency challenges receive priority treatment, they do not receive easy treatment.
A defendant mounting a sufficiency challenge bears a “heavy burden,” United States v. Vannerson,
786 F.2d 221, 225 (6th Cir. 1986) (internal quotation marks omitted), because he must show that,
“after viewing the evidence in the light most favorable to the prosecution, [no] rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt,” Jackson v.
Virginia, 443 U.S. 307, 319 (1979). That burden, as Kimbrel acknowledges, is still heavier here
because he failed to move for an acquittal at the close of all the proof, meaning that he must show
a “manifest miscarriage of justice,” United States v. Abdullah, 162 F.3d 897, 903 (6th Cir. 1998)
(internal quotation marks omitted), or, as we have otherwise expressed the point, he must show that
“the record is devoid of evidence pointing to guilt,” id. (internal quotation marks omitted).
        Kimbrel cannot shoulder this burden. He challenges both firearm-possession convictions
on the same ground: that he never possessed the gun. Two pieces of evidence undermine that
contention. David Pritchard, a prosecuting attorney who met with Kimbrel and his counsel in a
proffer session, testified that after signing a proffer letter acknowledging that his statements could
be used against him at trial, Kimbrel admitted he had possessed a firearm in March 2003 while a
convicted felon. And one of the Memphis police officers involved in Kimbrel’s arrest, Officer
Charles Teeters, testified that while he was sitting in his squad car—with Kimbrel sitting behind him
in the back seat—he saw his partner, Officer Charles Smith, recover a handgun while kneeling near
the driver’s seat of Kimbrel’s car.
       Nor, contrary to Kimbrel’s contention, does this amount merely to “tenuous circumstantial
evidence” that does not suffice to prove that he possessed the gun. Br. at 45. In the first place,
Kimbrel’s own admission that he possessed a gun at that time is not tenuous or circumstantial. In
the second place, the government may indeed prove possession of a firearm by circumstantial
evidence, which is why we will not overturn a felon-in-possession-of-a-firearm conviction “merely
because [the jury] had to draw reasonable inferences to find [the defendant] guilty.” United States
v. Arnold, 486 F.3d 177, 181 (6th Cir. 2007) (en banc). Had Kimbrel raised his insufficiency claim
properly below, it would be difficult to say that no rational juror could have inferred that Kimbrel
possessed the gun on the date of the arrest. But we need not even say that: In the light cast by
Teeters’ and Pritchard’s testimony, it is clear that the trial record is hardly “devoid of evidence
Nos. 06-6426; 07-5221                   United States v. Kimbrel                                Page 3


pointing to guilt,” Abdullah, 162 F.3d at 903 (internal quotation marks omitted), meaning that
Kimbrel’s insufficiency claim must fail.
                                                  B.
        Kimbrel next argues that the district court applied the wrong legal standard in sustaining the
government’s Batson objection to one of his peremptory challenges. Because this argument
concerns an alleged mistake of law, it makes no difference whether we review this Batson challenge
for clear error, as we have sometimes said, see United States v. Copeland, 321 F.3d 582, 599 (6th
Cir. 2003), or review it de novo. In either event, a mistake of law generally satisfies clear-error, de-
novo or for that matter abuse-of-discretion review. See Maynard v. Nygren, 332 F.3d 462, 467 (7th
Cir. 2003).
      Batson applies to peremptory challenges based on race or gender. See United States v.
Mahan, 190 F.3d 416, 424 (6th Cir. 1999). And it applies to peremptory challenges by the
government and by criminal defendants. See Georgia v. McCollum, 505 U.S. 42, 59 (1992).
        The same three-step inquiry governs challenges to peremptory strikes in each setting. See
Mahan, 190 F.3d at 424 & n.1. At step one, the party opposing the strike must establish a prima
facie case of race or gender discrimination. See United States v. Watford, 468 F.3d 891, 911–12 (6th
Cir. 2006). As here, that required the government to show that “the relevant circumstances raise an
inference that the proponent of the strike excluded prospective jurors from the petit jury because of
their race.” Id. at 912. At step two, the proponent of the strike (here Kimbrel) must proffer a
facially valid, race-neutral explanation for the challenge. See id. At step three, if the proponent has
produced a facially valid explanation for the strike, the trial court must decide whether the opponent
has proved purposeful discrimination. See id. To do so, the court must “assess the [proponent’s]
credibility under all of the pertinent circumstances, and then . . . weigh the asserted justification
against the strength of the [opponent’s] prima facie case under the totality of the circumstances.”
Paschal v. Flagstar Bank, 295 F.3d 565, 574 (6th Cir. 2002) (internal quotation marks omitted).
       In addressing (and reviewing) a Batson challenge, two points deserve emphasis. Although
the burden of production switches after step one and again after step two, “the ultimate burden of
persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.”
Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam) (emphasis added); see also McCurdy v.
Montgomery County, 240 F.3d 512, 521 (6th Cir. 2001). And the trial court may not short circuit
the process by consolidating any two of the steps. See Purkett, 514 U.S. at 768; United States v.
McFerron, 163 F.3d 952, 955 (6th Cir. 1998).
        Two cases illustrate these principles. In Purkett, the Supreme Court held that the trial court
cannot inquire at step two—where the proponent’s burden is merely to provide a facially valid
explanation—whether the tendered explanation is “plausible” or even “minimally persuasive.” See
514 U.S. at 768 (internal quotation marks omitted). The strike proponent can fail at step two only
if “a discriminatory intent is inherent in [its] explanation” for the strike. Id. (internal quotation
marks omitted and emphasis added). To rule otherwise, the Court explained, would impermissibly
shift the burden of persuasion from the strike opponent to its proponent. See id.
        In McFerron, after the government opposed McFerron’s peremptory strike and established
its prima facie case, the district court evaluated McFerron’s proffered explanations for striking each
of the five prospective jurors at issue. See 163 F.3d at 953–54. In each instance, without first
acknowledging that McFerron had produced facially valid explanations, the court assessed the
persuasiveness of McFerron’s justifications and rejected each one as pretextual. See id. In reversing
the conviction, we explained that the district court had conflated the second and third steps and, in
the process, placed the burden of persuasion on the strike proponent. See id. at 955. Because
Nos. 06-6426; 07-5221                    United States v. Kimbrel                                 Page 4


McFerron had come forward with reasons for the strikes that were not facially discriminatory, the
district court erred by not proceeding immediately to step three, where Batson and Purkett make
clear that the burden remains on the strike opponent. See id. The record in McFerron, moreover,
removed any doubt about the district court’s improper allocation of the burden of persuasion: It
stated repeatedly that McFerron, the strike proponent, had “failed in her burden of persuasion
regarding a nondiscriminatory basis” for the strike. See id. at 953–54.
         The district court’s handling of the government’s Batson challenge in this case is reminiscent
of Purkett and McFerron. After the government objected to Kimbrel’s peremptory strike of Goetz
and advanced a prima facie case for discrimination, the court moved to step two and asked defense
counsel to provide a nondiscriminatory explanation. During the ensuing colloquy with the court,
Kimbrel’s counsel proceeded to articulate his race-neutral reason for the strike, explaining that he
“detected a bit of ego there that [he] thought might color her role as a juror,” as Goetz had seemed
“too assured and too comfortable and too confident” and left the impression that “she was relishing
a little bit too much the possibility of being in the court.” JA 215–16. After the district court
pressed counsel for some further explanation, see JA 215 (“You sure you don’t have another
[explanation]? I would be glad to hear another one.”), it turned to the government for a response.
The government contested defense counsel’s assertion that Goetz had displayed “ego” or any similar
attribute that “would somehow affect her role as a juror.” JA 216–17. Kimbrel’s counsel rejoined
that the decision to strike was “just a gut call” based on a perception that “there might be something
there that would tend to be very powerful in the jury.” JA 217.
        The district court then analyzed the government’s objection. After finding that the
government had established a prima facie case of purposeful discrimination, the court determined
that Kimbrel had failed to satisfy his burden of persuasion. The court expressed doubt about defense
counsel’s proffered reason, noting that Goetz’s disclosure of her indirect connection to another case
before the court did not justify the strike, and explaining that “[t]he thing that distinguishes this lady
is her race.” JA 219. The court thus not only conflated steps two and three of the Batson
analysis—assessing the persuasiveness of Kimbrel’s proffered explanation without first
acknowledging that he had come forward with a race-neutral justification—but it also explicitly
indicated that Kimbrel, the proponent of the strike, bore the burden of persuasion. See id.
(concluding that “the party with the burden of persuasion regarding a nondiscriminatory basis has
failed in this particular situation” and thus sustaining the government’s Batson objection). If these
types of errors required reversal in Purkett and McFerron, they require reversal here.
        In defending the district court’s ruling, the government argues that Kimbrel never produced
a race-neutral explanation for the strike. Not true. As the Supreme Court and this court have
explained, the reason offered must be “clear and reasonably specific,” Batson, 476 U.S. at 98 n.20
(internal quotation marks omitted), must be “related to the particular case to be tried,” id. at 98, and
must amount to more than a “mere denial of an impermissible motive [or] assertion of good faith,”
United States v. Hill, 146 F.3d 337, 341 (6th Cir. 1998). Beyond that, a defendant is not required
to produce “a reason that makes sense, but [only] a reason that does not deny equal protection.”
Purkett, 514 U.S. at 768; see also id. (“Unless a discriminatory intent is inherent in the [strike
proponent’s] explanation, the reason offered will be deemed race neutral.”) (internal quotation marks
omitted). The district court, to be sure, can and should eventually reject explanations that are
“implausible,” “fantastic,” “silly,” “superstitious,” or otherwise reflect pretext. See id. But it
generally may do so only at step three—when the explanations are stacked up against the strike
opponent’s prima facie case—and it must take care not to alleviate the opponent of its burden of
persuasion. See id. At step two, by contrast, the district court may not even inquire whether the
tendered explanation is “plausible” or even “minimally persuasive.” Id. (internal quotation marks
omitted).
Nos. 06-6426; 07-5221                    United States v. Kimbrel                                Page 5


        Whether the race-neutral reasons offered by Kimbrel’s counsel—his sense that Goetz had
“a bit of ego,” JA 216, and “was relishing a little bit too much the possibility of being in the court,”
JA 215—would have satisfied step three of the Batson inquiry need not detain us. The point is that
they sufficed at the second step: The offered reasons were related to the case, were reasonably clear
and did not simply disclaim discriminatory intent. Cf. McFerron, 163 F.3d at 953, 955 (holding that
defense counsel’s proffered reason for peremptory strikes, including that defense counsel “just got
a feeling from [a potential juror] that he would not be able to be as impartial as other jurors” based
on “something in the tone of his voice,” satisfied step two) (internal quotation marks omitted). Once
the defendant met this modest threshold, he satisfied his obligation at step two, and the district court
erred in ruling to the contrary.
         Attempting to distinguish McFerron, the government argues that the district court in that
case truly stopped at Batson’s second step, whereas in this case the court, “despite [its] facial
misstatement of law,” ultimately did engage in the balancing analysis required by Batson’s third
step, weighing defense counsel’s credibility against the evidence of discrimination. Br. at 24. But
this gloss on the proceedings emanates from something other than the record. Based on what the
court said, it rejected Kimbrel’s race-neutral explanations at step two of the process. This thus is
not a case where, despite the district court’s “less than ideal” application of Batson, it ultimately did
engage in each of the required steps. Paschal, 295 F.3d at 576. But even if we were to say that the
district court did reach step three (in substance, if not in name), that does nothing to cure the
problem that it explicitly misallocated the burden of persuasion—not just once but twice.
        At oral argument, the government suggested that even if the district court misapplied Batson,
this court can determine for itself whether the government satisfied its ultimate burden of persuasion.
But when faced with a nearly identical situation in McFerron, we did not follow that course. See
163 F.3d at 955–56. And for good reason: Batson’s third step, which asks whether a peremptory
strike is motivated by purposeful discrimination and whether proffered neutral justifications are
mere pretext, presents factual questions that hinge on ring-side credibility determinations that no
appellate court can fairly make on the basis of a non-sentient record. See Watford, 468 F.3d at 911,
914–15.
         The government argues that even if the district court erred by placing the burden of
persuasion on Kimbrel instead of on the prosecution, any error was harmless. See Fed. R. Crim. P.
52(a). Not all errors, however, are susceptible to harmless-error review. Only “trial error[s]”—that
is, errors “which occurred during the presentation of the case to the jury, and which may therefore
be quantitatively assessed in the context of other evidence presented in order to determine whether
its admission was harmless beyond a reasonable doubt”—are appropriately subject to harmless-error
review. Arizona v. Fulminante, 499 U.S. 279, 307–08 (1991). “Structural” errors, by contrast,
which affect the “entire conduct of the trial from beginning to end,” are not subject to harmless-error
review. Id. at 309. In McFerron, the court held that Batson errors represent structural errors, a
decision that binds us here. See 163 F.3d at 955–56; see also United States v. Harris, 192 F.3d 580,
588 (6th Cir. 1999).
        Contrary to the government’s suggestion, United States v. Martinez-Salazar, 528 U.S. 304
(2000), does not pull the legs out from under McFerron. Martinez-Salazar dealt with two other
issues: whether a defendant is obliged to use a peremptory strike to cure a trial court’s erroneous
decision not to strike a juror for cause; and whether the Due Process Clause entitles a defendant who
does elect to use a peremptory challenge to remove such a juror to an automatic reversal of his
conviction. See id. at 307. The decision simply does not hold that Batson errors are not structural
errors.
       That brings us to the question of remedy, a point about which the parties have had little to
say. So far as the government has been concerned, the sole question before us is whether the district
Nos. 06-6426; 07-5221                  United States v. Kimbrel                             Page 6


court conducted a proper Batson inquiry, as guided by our decision in McFerron. In McFerron,
once the court determined that a Batson violation had occurred, it reversed the conviction and sent
the case back for a new trial. See 163 F.3d at 956. Absent any argument for a different approach,
we follow the same path here.
                                               III.
       For these reasons, while sufficient evidence supported the convictions, we vacate the
convictions and sentence on the ground that the district court conducted a flawed Batson analysis.
Kimbrel is entitled to a new trial.
