                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                             March 18, 2005
                       FOR THE FIFTH CIRCUIT
                       _____________________             Charles R. Fulbruge III
                                                                 Clerk
                            No. 04-30446
                       _____________________

UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee

                              versus

CARL PRATT,

                                           Defendant - Appellant.
_________________________________________________________________

           Appeal from the United States District Court
               for the Western District of Louisiana
                     USDC No. 5:03-CR-50075-ALL
_________________________________________________________________

Before JOLLY and DAVIS, Circuit Judges, and ENGELHARDT, District
Judge.1

PER CURIAM:2

     Carl Pratt appeals his conviction and sentence for being a

felon in possession of a firearm.      He argues that the district

court erred by excluding evidence of his lack of intent to possess

a weapon and that his sentence was improperly enhanced based on

facts that were neither charged in the indictment nor stipulated.

We AFFIRM.




     1
      District Judge of the Eastern District of Louisiana, sitting
by designation.
     2
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                                      I

     During the execution of a search warrant at Pratt’s residence,

law enforcement officers found a shotgun underneath the bed in the

master bedroom.       Pratt,   a    convicted   felon,   was   charged   with

possession of the weapon.          A jury found him guilty, and he was

sentenced to 104 months of imprisonment and a three-year term of

supervised release.

                                      II

     On appeal, Pratt argues that the district court erred by

excluding evidence of his lack of intent to possess the shotgun and

that his sentence was improperly enhanced based on facts that were

neither charged in the indictment nor stipulated.          We discuss each

issue separately.

                                      A

     We address first the challenged evidentiary ruling. At trial,

Government witnesses testified that when the shotgun was found in

Pratt’s residence during the execution of the search warrant in

August 2002, Pratt stated that he knew the gun was there, and knew

that he was not supposed to have it, but that he had borrowed it

from a friend for protection of his family.

     The defense called Pratt’s wife’s cousin as a witness.              When

defense counsel asked him to describe an incident in 2001 when

Pratt stated his belief that the gun had been removed from his

residence, the district court sustained the Government’s hearsay

objection.

                                      2
     The defense then called Pratt’s wife to testify.      When she was

asked about a statement her husband made in 2001 reflecting his

belief that the gun was missing, the district court sustained the

Government’s hearsay objection.

     Pratt then took the stand in his own defense.        He testified

that he looked for the gun to dispose of it because he knew that he

was subject to search by the probation office, but could not find

it; that he asked his wife what had happened to the gun when he

found that it was missing; that he accused one of his wife’s

cousins of stealing the gun; and that he did not know the gun was

under the bed when the search warrant was executed.

     In a proffer, Pratt’s wife testified that her cousin watched

their house when they took a trip; that, when they returned, Pratt

looked for the gun but could not find it; and that Pratt accused

her cousin of having taken the gun.          She testified that Pratt

therefore did not know the gun was in the house on the day the

search warrant was executed, because he thought it had been stolen.

     Pratt argues that the district court erred by excluding the

testimony of his wife and her cousin that he did not know the gun

was in his house when the search warrant was executed, because he

thought the gun had been stolen.       Ordinarily, we review a district

court’s evidentiary rulings for abuse of discretion. United States

v. Avants, 367 F.3d 433, 443 (5th Cir. 2004).            However, that

standard applies only to the grounds proffered at trial.           See

United States v. Ahmad, 101 F.3d 386, 392 (5th Cir. 1996) (“Our

                                   3
examination of the exclusion of evidence is limited to the grounds

that were proffered for its admission at trial.”).                 “[I]n the

absence of a proper objection, we review only for plain error.”

Avants, 367 F.3d at 443.    Under the plain error standard, we have

the   discretion   to   correct   a       plain   error   that   affects   the

defendant’s substantial rights, but generally will not do so unless

a failure to correct the error will seriously affect the fairness,

integrity, or public reputation of judicial proceedings.             Fed. R.

Civ. P. 52(b); Avants, 367 F.3d at 443, 446; United States v.

Calverley, 37 F.3d 160, 163-64 (5th Cir. 1994) (en banc).

      At trial, Pratt objected to the exclusion of the evidence on

two grounds:   (1) the evidence is not hearsay, because it was not

offered to prove that the gun had been stolen, but instead to show

his lack of knowledge that the gun was still in the house;3 and (2)

if the testimony is hearsay, it is within the exception of Federal

Rule of Evidence 803(3) because it was offered to establish his

state of mind negating his intent to possess the gun.4


      3
      Federal Rule of Evidence 801(c) defines “hearsay” as “a
statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the
matter asserted.”
      4
      Rule 803(3) is one of the exceptions to the hearsay rule. It
authorizes the admission of “[a] statement of the declarant’s then
existing state of mind, emotion, sensation, or physical condition
(such as intent, plan, motive, design, mental feeling, pain, and
bodily health), but not including a statement of memory or belief
to prove the fact remembered or believed unless it relates to the
execution, revocation, identification, or terms of declarant’s
will.”

                                      4
     On appeal, Pratt reiterates his argument that the excluded

testimony is not hearsay because it was not offered to prove that

the gun had been stolen, but to show his lack of intent to possess

the gun, based on his belief that it had been stolen.5      For the

first time on appeal, Pratt also argues that the testimony should

have been admitted under Federal Rule of Evidence 801(d)(1)(B) as

a prior consistent statement to rebut the Government’s argument

that he fabricated his testimony.6       The latter contention is

reviewed only for plain error because Pratt did not assert Rule

801(d)(1)(B) as a basis for admitting the evidence at trial.

Avants, 367 F.3d at 443.

     In support of his contentions, Pratt relies on several Fifth

Circuit opinions.   In the first, United States v. Jackson, 621 F.2d

216 (5th Cir. 1980), the defendant, a bank president, was convicted

for making a false notation on a loan memo regarding the purpose of

the loan.   His defense was that the notation was not made with

knowledge of its falsity because the borrower had told him that was

     5
      The Government asserts that Pratt has abandoned his
contention that the testimony is admissible under Rule 803(3). We
disagree. Although Pratt’s brief cites Rule 803(3) only in the
summary of the argument, he nevertheless argues that the testimony
was offered to establish his state of mind negating his intent to
possess the gun, and not for the truth of whether the gun had
indeed been stolen.
     6
      Rule 801(d)(1)(B) provides that a statement is not hearsay if
“[t]he declarant testifies at the trial or hearing and is subject
to cross-examination concerning the statement, and the statement is
... consistent with the declarant’s testimony and is offered to
rebut an express or implied charge against the declarant of recent
fabrication or improper influence or motive”.

                                 5
the purpose of the loan.         The defendant attempted to testify about

that conversation with the borrower at trial, but the district

court excluded the proffered testimony on hearsay grounds.                    Our

court   held    that   the   district       court   improperly     excluded   the

testimony because it was not offered for its truth, but was offered

to establish what the defendant thought was the purpose of the

loan, and therefore it was not hearsay under Rule 801.               Id. at 219.

The court also held that the Government had breached a pretrial

agreement with the defendant; that the defendant was prejudiced by

the breach; and that the district court’s failure to balance the

potential      for   prejudice    against     the   reason   for    the   breach

constituted reversible error.         Id. at 221.

     Pratt also relies on United States v. Parry, 649 F.2d 292 (5th

Cir. 1981).     In that case, our court found reversible error in the

exclusion of an out-of-court statement made by the defendant to his

mother.     The defendant was charged with drug offenses.                     Two

undercover agents testified for the Government that the defendant

had acted as an intermediary in arranging drug transactions between

the agents and the sellers.         Parry’s defense was that he knew that

the agents were undercover law enforcement officers and that he was

working for them, assisting them in locating drug dealers.                     He

testified that, shortly after he met one of the agents, in response

to an inquiry from his mother about the identity of the person who

had frequently telephoned her home asking to speak to him, he told

her that it was a narcotics agent with whom he was working.                   He

                                        6
called his mother as a witness, but the trial court excluded her

testimony on hearsay grounds.   Our court held that Parry’s out-of-

court statement to his mother was not hearsay under the definition

in Rule 801(c), because it was not offered to prove the truth of

the matter asserted, but was instead offered to establish that

Parry had knowledge of the agent’s identity.    Id. at 294-95.   The

court also held that the statement was admissible under Rule

801(d)(1)(B) as a prior consistent statement offered to rebut the

Government’s charge that Parry had fabricated his story.     Id. at

295-96.     The court concluded that the error was not harmless

because it was the only available evidence that could corroborate

Parry’s story that he had known of the agents’ identities.   Id. at

296.   Moreover, because Parry had testified about his conversation

with his mother, the court stated that the jury might have assumed

that the conversation did not occur because Parry did not call his

mother to corroborate his testimony.    Id.

       Relying on Parry, the defendant in United States v. Gonzalez,

700 F.2d 196 (5th Cir. 1983), also cited by Pratt, argued that the

court committed reversible error by excluding a prior consistent

statement that he had made to his wife.   The defendant was charged

with drug offenses.     He drove a co-defendant’s car from Laredo,

Texas to McAllen, Texas.    At trial, he testified that he did not

know why he was asked to drive the car to McAllen, but that he did

it as a favor and wanted to see some farm implements in McAllen.

Id. at 200.   The district court excluded the testimony of his wife

                                  7
that he had told her that her brother had asked him to bring the

car to McAllen and that he was going to look at machinery while

there.   Id. at 201.     Our court stated that the testimony was

admissible under Rule 801(d)(1)(B), because the defendant “offered

his wife’s testimony in response to the government’s evidence and

in anticipation of the government’s inevitable attack on his own

testimony.”   Id. at 202.     The court held, however, that the error

was harmless because the defendant presented to the jury his reason

for driving to McAllen, and the jury rejected it.           Id.   The court

distinguished Parry on the grounds that the evidence was more

closely balanced in that case. It also noted that Gonzalez’s story

was “incredible on its face.”         Id.    Finally, the court found it

significant that before Parry’s mother’s testimony was excluded,

Parry had told the jury that he had told his mother that he was

working with undercover narcotics agents.               Gonzalez, however,

“never told the jury that he had told his wife the same story.”

Id.

      The final case relied on by Pratt is United States v. Cantu,

876 F.2d 1134 (5th Cir. 1989).    The defendant was charged with drug

crimes and his defense was entrapment.         The district court did not

allow the defendant to testify about a confidential informant’s

alleged persistence in trying to get him to secure customers for

the   informant’s   illicit    drug       activities,   holding   that   the

statements were hearsay.      Id. at 1136.       Our court held that the

proffered statements were not hearsay because they were offered as

                                      8
evidence of the defendant’s state of mind, and their significance

was “solely in the fact that they were made; the truth of the

statements is irrelevant.”           Id. at 1137.     The error was not

harmless because it “deprived Cantu of a critical element of his

entrapment defense.”       Id.

      The Government argues that Pratt’s own trial testimony is

inconsistent with regard to his alleged belief that the gun had

been stolen.    On the one hand, he testified that he accused his

wife’s cousin of stealing the gun because when he looked for the

gun and did not see it under the bed, he thought the gun was gone;

and that he was surprised when the officers found the gun because

he had thought for at least six months, maybe longer, that the gun

was gone.   On the other hand, he testified later that the gun was

a “house gun” and that when he “placed that gun there, I never went

back to touch it or look at it or nothing.          I placed it there for

the protection of my home and my family.”          The Government asserts

that Pratt’s belief that the gun was no longer under the bed

because it had been stolen was a mistaken belief based on his

stated inability to find it, and that the only purpose his wife’s

testimony   could   have    served   was   as   corroboration   of   Pratt’s

testimony that months before he was arrested he accused his wife’s

cousin of stealing the gun.          The Government maintains that that

circumstance is only marginally relevant to Pratt’s knowledge nine

months later.



                                      9
     The Government argues that the testimony was inadmissible

under Rule 803(3) because it was offered to prove that Pratt had

the belief that the gun had been stolen at some distant time in the

past, which was irrelevant to his belief in August 2002.                It

asserts that Pratt’s wife’s testimony about events nine months

earlier is not evidence of his state of mind in August 2002.

     The Government argues that the testimony was not admissible

under Rule 801(d)(1)(B) (which Pratt did not assert as a basis for

admissibility at trial), because the Government did not argue that

Pratt’s story was a recent fabrication, the basis for admissibility

as a prior consistent statement.         At the time the testimony was

sought to be introduced, Pratt had not yet testified, so there

could be no assertion by the Government that this was recently

fabricated   testimony.     The    Government   asserts     that   Pratt’s

testimony brought to the jury’s attention his belief that the

weapon had been stolen, and no reasonable juror would have given

his wife’s corroborating testimony much weight in the face of

Pratt’s other testimony and the testimony of the Government’s

witnesses.

     Pratt has failed to satisfy his burden of showing that the

district court committed plain error in excluding the testimony of

his wife and her cousin as prior consistent statements under Rule

801(d)(1)(B).    At   the   time   the   district   court   excluded   the

testimony of Pratt’s wife and her cousin, Pratt had not testified.

Therefore, there was no charge of recent fabrication to rebut.

                                   10
Even assuming that the exclusion of the testimony constituted a

plain error, Pratt has not shown that such error affected his

substantial   rights.       As   the     Government     noted,      his    own    trial

testimony was inconsistent regarding his purported belief that the

gun had been stolen from under his bed.

     Furthermore, the cases that he relies on in support of his

contention that the testimony was admissible because it was not

hearsay or, alternatively, because it was within the exception of

Rule 803(3), are distinguishable.               Pratt’s wife and her cousin

testified   before     Pratt     took    the    stand    in   his    own    defense.

Therefore, at the time the evidence at issue was excluded, he had

not told the jury about his statements to his wife or her cousin

regarding his belief that the cousin stole the gun.                   This case is

thus distinguishable from Parry, in which the defendant told the

jury about his conversation with his mother before his mother’s

corroborating testimony was excluded.                  Furthermore, unlike the

defendants in Jackson and Cantu, Pratt was able to offer his

explanation     to    the   jury,       which    obviously     rejected          it    as

unbelievable.    It is therefore unlikely that the jury would have

believed    Pratt’s    story     had     it     been    allowed     to     hear       the

corroborating testimony of Pratt’s wife and her cousin, especially

in the light of Pratt’s own inconsistent trial testimony that he

placed the gun under the bed for the protection of his family and

never went back to touch it or look at it.               See Gonzalez, 700 F.2d

at 202 (holding that error in excluding corroborating evidence was

                                         11
not reversible because defendant presented his story to the jury).

Moreover,    as   in    Gonzalez,   the    excluded    testimony       could   not

demonstrate the timing of Pratt’s knowledge -- his belief in 2001

that the gun had been stolen by his wife’s cousin because he could

not find it under his bed does not preclude his having discovered

that the gun was still there prior to August 2002 when the agents

found it during their execution of the search warrant.                   See id.

Under these circumstances, even if we assume that the district

court erred by failing to admit the testimony as non-hearsay or as

falling within the exception in Rule 803(3), any error in excluding

the testimony was harmless.

                                      B

     For the first time on appeal, Pratt argues that his sentence

was improperly enhanced based on facts that were neither charged in

the indictment nor stipulated.            According to the testimony of a

federal agent at the sentencing hearing, during the execution of

the search    warrant,     the   officers    found    27   bags   of   marijuana

packaged for sale in Pratt’s bedroom, where the shotgun was also

found.   In addition, they found ammunition and other drug-related

items, including plastic bags containing marijuana residue and

digital scales.        The Presentence Report states that, at the same

time that Pratt admitted to one of the agents that he possessed the

firearm, he also admitted that he was a drug dealer, that he had

sold and cooked cocaine in the past, and that he then sold

marijuana to support his family.

                                      12
     The district court increased Pratt’s base offense level by

four levels pursuant to U.S.S.G. § 2K2.1(b)(5), which provides that

“[i]f the defendant used or possessed any firearm or ammunition in

connection with another felony offense ... increase by 4 levels.”

Pratt also received a two-level increase in his offense level for

obstruction of justice based on the district court’s finding that

he committed perjury when he testified at trial.

     The parties filed supplemental briefs following the Supreme

Court’s decision in United States v. Booker, 125 S.Ct. 738 (2005).

Pratt argued that the district court erred by increasing his

sentence based on facts that were not alleged in the indictment or

stipulated, and that the error affected his substantial rights

because his guideline range increased from 51-63 months to 92-115

months. The Government argued that Pratt has not met his burden of

establishing that any plain error affected his substantial rights,

because he cannot establish that his sentence would be different

under advisory guidelines.        The Government observes that the

district court imposed a sentence of 104 months, more than a year

higher than the 92-month sentence at the bottom of the guideline

range calculated   for   Pratt.    It   therefore   contends   that   the

district court would not have imposed a lower sentence, even if it

had discretion to do so.

     Because Pratt did not object to the sentence enhancements on

constitutional grounds in the district court, our review is for

plain error.   United States v. Mares, ___ F.3d ___, 2005 WL 503715,

                                  13
at *7. Pratt has established Booker error because his sentence was

enhanced based on findings of fact that were not found by the jury

or admitted by Pratt.      Id. at *8.     In the light of Booker, the

error is plain.   See id. (citing Johnson v. United States, 520 U.S.

461, 468 (1997)).

      Pratt’s challenge fails, however, under the third prong of the

plain error analysis, which requires a showing that the plain error

affected the defendant’s substantial rights.            To make such a

showing, the defendant must show that the error “affected the

outcome of the district court proceedings.”       Id. (quoting United

States v. Olano, 507 U.S. 725, 734 (1993)).     To meet that standard,

the   party   claiming    error   “must   demonstrate    a   probability

‘sufficient to undermine confidence in the outcome.’” Id. (quoting

United States v. Dominguez Benitez, 124 S.Ct. 2333, 2340 (2004)).

      Thus, to satisfy the third prong of the plain error analysis,

Pratt has the burden of demonstrating a reasonable probability that

the district court would have imposed a lower sentence under

advisory Sentencing Guidelines.     Mares, 2005 WL 503715, at *9.    As

in Mares, we do not know what sentence the district court would

have imposed had it known at the time of Pratt’s sentencing that

the Sentencing Guidelines were advisory rather than mandatory.

There is nothing in the record to indicate that the district court

would have imposed a lower sentence under advisory Sentencing

Guidelines.   See id.    To the contrary, the district court chose to

impose a sentence of 104 months even though it could have imposed

                                   14
a sentence as low as 92 months under the Sentencing Guidelines

range calculated for Pratt.   Accordingly, Pratt has not met his

burden of establishing that his substantial rights were affected

under the third prong of the plain error test.

                               III

     For the foregoing reasons, Pratt’s conviction and sentence are

                                                         AFFIRMED.




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