                                                                      [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT                        FILED
                            ________________________
                                                                  U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                    No. 04-10267                         June 23, 2005
                              ________________________               THOMAS K. KAHN
                                                                           CLERK
                    D. C. Docket No. 03-00056-CR-FTM-29-DNF

UNITED STATES OF AMERICA,

                                                                         Plaintiff-Appellee,

                                           versus

JEFFERY ALAN READON,
a.k.a. Malikar,
DEXTER LEON GRANT,
a.k.a. Leon,

                                                                 Defendants-Appellants.

                              ________________________

                     Appeals from the United States District Court
                          for the Middle District of Florida
                           _________________________

                                      (June 23, 2005)

Before BLACK and HULL, Circuit Judges, and O’KELLEY*, District Judge.

PER CURIAM:

       *
        Honorable William C. O’Kelley, United States District Judge for the Northern District
of Georgia, sitting by designation.
      Jeffery Alan Readon appeals his conviction and sentence for conspiracy to

possess with intent to distribute 500 grams or more of cocaine; possession with

intent to distribute 5 grams or more of cocaine base; and possession with intent to

distribute 500 grams or more of cocaine, all in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(B) and 846. Readon’s co-defendant, Dexter Leon Grant also appeals his

conviction and sentence for the same conspiracy charge. Readon and Grant make

various arguments on appeal, and we address each of their issues in turn. We

affirm their convictions, but vacate and remand as to both for resentencing

consistent with United States v. Booker, 125 S. Ct. 738 (2005).

                                  I. DISCUSSION

A.    Readon

      1.     Religious beliefs

      Readon asserts the district court erred by not permitting him to testify about

the nature of his religious beliefs, which he contends were probative of his

motives for being in contact with co-conspirators Leonard Morris and Alvin

Stuart. We review a district court’s evidentiary rulings for an abuse of discretion.

United States v. Massey, 89 F.3d 1433, 1441 (11th Cir. 1996). “A person’s

beliefs, superstitions, or affiliation with a religious group is properly admissible




                                           2
where probative of an issue in a criminal prosecution.” United States v. Beasley,

72 F.3d 1518, 1527 (11th Cir. 1996).

      Although Readon contends testimony about the nature of his religion would

show the jury he understood Yahweh concepts, he did not suggest such testimony

would allow the jury to determine he had no illicit contacts with Morris and Stuart,

or would otherwise be relevant to the charged offenses. Moreover, Readon did

present his religion defense by testifying that his purpose for maintaining contact

with Morris and Stuart was to give spiritual advice. Based on these facts, the

district court did not abuse its discretion by not permitting Readon to testify about

the nature of his religious beliefs.

      2.     Prosecutorial misconduct

      Readon contends the Government improperly commented, during closing

arguments, on the credibility of witnesses at trial. “Prosecutorial misconduct

requires a new trial only if . . . the remarks (1) were improper and (2) prejudiced

the defendants’s substantive rights.” United States v. Delgado, 56 F.3d 1357, 1363

(11th Cir. 1995) Such comments are reviewed in context and assessed based on

the probable jury impact. Id.

      When defense counsel attacks the credibility of government witnesses, the

government, in response, is “entitled to argue fairly to the jury the credibility of

                                           3
the government and defense witnesses.” United States v. Eley, 723 F.2d 1522,

1526 (11th Cir. 1984). “It is improper for the prosecution to place the prestige of

the government behind a witness by making explicit personal assurances of the

witness’s veracity or by indicating that information not presented to the jury

supports the testimony.” United States v. Hernandez, 921 F.2d 1569, 1573 (11th

Cir. 1991). This “prohibition against vouching does not forbid prosecutors from

arguing credibility, which may be central to the case; rather, it forbids arguing

credibility based on the reputation of the government office or on evidence not

before the jury.” Id. When the government “voices a personal opinion but

indicates this belief is based on evidence in the record, the comment does not

require a new trial.” United States v. Adams, 799 F.2d 665, 670 (11th Cir. 1986)

(quotations and citation omitted).

      Readon objected only to the Government’s rebuttal statement that the jury

should decide for itself whether Readon’s or a trained investigator’s version of

proper investigation procedures should be trusted. Thus, whether this statement

amounted to prosecutorial misconduct is subject to plenary review. See Delgado,

56 F.3d at 1363. Taken in the context of the entire case, the Government’s

statement was made in response to Readon’s attack on Agent Tige Thompson’s




                                          4
credibility. The Government did not argue credibility on an impermissible basis.

There was no reversible error. See Eley, 723 F.2d at 1526.

      Because Readon did not object to the Government’s other allegedly

improper closing argument statements, we review for plain error. United States v.

Bailey, 123 F.3d 1381, 1400 (11th Cir. 1997).

      An appellate court may not correct an error [that] the defendant failed
      to raise in the district court unless there is: (1) error, (2) that is plain,
      and (3) that affects substantial rights. If all three conditions are met,
      an appellate court may then exercise its discretion to notice a forfeited
      error, but only if (4) the error seriously affects the fairness, integrity,
      or public reputation of the judicial proceedings.

United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005) (internal

quotations and citation omitted). Readon argues the Government improperly

(1) vouched for its own witnesses by stating they were credible despite their

criminal convictions, and (2) attacked the credibility of defense witnesses by

implying they were liars. These arguments are without merit.

      The Government did not make explicit personal assurances of Morris’s and

Stuart’s veracities; nor did it indicate information not presented to the jury

supported the testimony. Instead, it asked the jury to look at the testimony

objectively, and specifically noted that Morris and Stuart were convicted

criminals, and not “angels.” Additionally, the Government did not assert its



                                           5
witnesses were truthful and the defense witnesses were liars, but instead stated that

it was the jury’s job to determine credibility. Accordingly, the Government’s

challenged remarks did not rise to the level of plain error by seriously affecting the

fairness and integrity of the trial. See Bailey, 123 F.3d at 1402.

      As for Readon’s next contention, during the statements at issue, the

Government specifically stated it was not calling the defense witnesses liars, but

instead was questioning whether they had “been mistaken or confused,” as well as

their ability to “remember the facts at hand.” The Government also stated its

witnesses were not “angels,” but the jury should nonetheless objectively find them

credible, especially given the consistency of their testimonies. Readon argues the

Government was improperly attempting to invoke the prestige of the federal

government by making these statements. His argument is not supported by the

record.

      Readon also contends the Government improperly stated the evidence lent

itself to a finding that drug dealers are “paranoid individuals” in that they are

always concerned about being caught. Although the statement to which Readon

cites contains a personal opinion, it also indicates the opinion is based on evidence

in the record. Thus, there is no plain error. See Adams, 799 F.2d at 670.




                                           6
      3.     Failure to sua sponte take additional curative measures

      Readon also claims the Government, in questioning, suggested he tried to

avoid capture and thereby prejudiced his defense. Aside from his initial objection,

which was sustained, Readon did not seek further curative relief from the question

he now alleges suggested he tried to avoid capture. As such, his claim that

prejudicial error resulted from the district court’s failure to do anything beyond

sustaining his initial objection is reviewed for plain error only. United States v.

Hall, 314 F.3d 565, 566 (11th Cir. 2002). Even assuming that plain error

occurred, the other evidence presented at trial sufficiently supported the jury’s

guilty verdict. See id. at 567. As such, Readon’s substantial rights were

unaffected by the court’s failure to cure sua sponte.

      4.     Blakely/Booker

      Readon failed to raise Sixth Amendment constitutional challenges to his

sentence in the district court. We therefore review his Booker claims for plain

error. Rodriguez, 398 F.3d at 1298. We have clarified there are two types of

Booker error: (1) Sixth Amendment, or constitutional, error based upon

sentencing enhancements, imposed under a mandatory Guidelines system, neither

admitted by the defendant nor submitted to a jury and proven beyond a reasonable

doubt; and (2) statutory error based upon sentencing under a mandatory

                                          7
Guidelines system. United States v. Shelton, 400 F.3d 1325, 1329–30 (11th Cir.

2005). We turn directly to statutory error.

      Readon meets both the first and second prongs of plain-error review for

statutory error because he was sentenced under a mandatory Guidelines system.

See Shelton, 400 F.3d at 1330–31. Under the third prong of plain-error review,

“we ask whether there is a reasonable probability of a different result if the

[G]uidelines had been applied in an advisory instead of binding fashion by the

sentencing judge in this case.” Rodriguez, 398 F.3d at 1301. It is the defendant’s

burden to show he meets this test. Id. at 1299.

      The record shows there is a reasonable probability that the district court

would have imposed a different sentence had it applied the Guidelines in an

advisory fashion. At Readon’s sentencing, there was discussion regarding

whether the district court had discretion to impose the obstruction of justice

enhancement. The court found Readon committed perjury, qualifying him for the

enhancement and concluded it did not have discretion to avoid imposing the

enhancement. The court stated: “Congress has said pretty clearly and the

Eleventh Circuit has said pretty clearly that the [G]uidelines are binding upon the

court and the court can’t play games with the [G]uidelines simply because it may

not like the result.” The district judge also stated: “I must admit I’m somewhat

                                          8
troubled with the lack of criminal history.” These comments are sufficient to

satisfy the third prong of plain-error review. See id. at 1301.

      Readon also meets the fourth prong of plain-error review. “[T]he plain error

of applying the Guidelines in a mandatory fashion seriously affected the fairness,

integrity or public reputation of [Readon’s] sentencing.” See United States v.

Martinez, 407 F.3d 1170, 1174 (11th Cir. 2005). Thus, the district court plainly

erred in sentencing Readon under a mandatory Guidelines scheme.

B.    Grant

      1.      Judgment of Acquittal

      We review the district court’s denial of a motion for a judgment of acquittal

de novo, viewing the facts and drawing all inferences in the light most favorable to

the government. United States v. Descent, 292 F.3d 703, 706 (11th Cir. 2002). To

affirm “the denial of a Rule 29 motion, ‘we need only determine that a reasonable

fact-finder could conclude that the evidence established the defendant’s guilt

beyond a reasonable doubt.’” Id. (citation omitted). Judgment of acquittal is not

required “because the government’s case includes testimony by ‘an array of

scoundrels, liars, and brigands.’” United States v. Hewitt, 663 F.2d 1381, 1385

(11th Cir. 1981) (citation omitted).




                                          9
      “To sustain a conviction for conspiracy to possess cocaine with intent to

distribute, the government must prove beyond a reasonable doubt that (1) an

illegal agreement existed; (2) the defendant knew of it; and (3) the defendant, with

knowledge, voluntarily joined it.” United States v. McDowell, 250 F.3d 1354,

1365 (11th Cir. 2001). “Although presence is certainly a factor to consider in

determining whether a defendant joined a conspiracy, it is well settled that mere

presence will not support a conviction.” United States v. Charles, 313 F.3d 1278,

1284 (11th Cir. 2002). “Thus, although the government is not required to prove

that [the defendant] knew every detail or that he participated in every stage of the

conspiracy, the government must prove that he knew the essential nature of the

conspiracy.” Id. (quotations and citations omitted).

      Viewing the facts and drawing all inferences in the light most favorable to

the Government, a reasonable fact-finder could conclude the evidence established

beyond a reasonable doubt that Grant conspired to possess cocaine with intent to

distribute. Grant introduced Morris and Stuart to Readon for the purpose of

purchasing a half kilogram of cocaine, and the transaction occurred in Grant’s

home. Moreover, on that occasion, Morris, in Grant’s presence, tested the

cocaine’s quality by cooking 14 grams of it into cocaine base. Also, Readon paid

Grant a fee for “helping his business.” On other occasions, Grant’s home was

                                         10
used as a meeting place prior to conducting a cocaine transaction; he acted as a

liaison between Morris and Readon; he accepted payment on behalf of Readon for

a quantity of cocaine Readon had fronted Stuart and Morris; and he was paid for

his various services.

      Grant’s argument that the testimony provided by Morris and Stuart was not

credible because they were convicted criminals testifying against him in exchange

for lower prison sentences is unavailing. Credibility determinations are within the

jury’s province, and Morris’s and Stuart’s status as criminals did not require

granting the Rule 29 motion. See id.; Hewitt, 663 F.2d at 1385. Moreover, since

Grant chose to testify and his testimony was contrary to that of other witnesses, the

jury could consider his testimony as “substantive evidence of [his] guilt.” See

United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995). Accordingly, the

evidence was more than sufficient for a reasonable jury to find beyond a

reasonable doubt that Grant knew about and joined the illegal conspiracy.

      2.     Blakely/Booker

      Grant failed to raise Sixth Amendment constitutional challenges to his

sentence in the district court. We therefore review his Booker claims for plain

error. Rodriguez, 398 F.3d at 1298. Again, we turn directly to statutory error.




                                         11
      Grant meets both the first and second prongs of plain-error review for

statutory error because he was sentenced under a mandatory Guidelines system.

See Shelton, 400 F.3d at 1330–31. He also meets the third prong. At Grant’s

sentencing, in discussing whether the court had discretion in imposing the

obstruction of justice enhancement, the district judge stated: “[T]he whole

purpose of the [G]uidelines is that the judges don’t have the authority to, on their

own, decide that certain parts don’t apply just because they don’t like the impact

on the sentence.” The district judge further stated: “I found that the obstruction of

justice does apply. And therefore, I don’t find that I have the authority to just

ignore it because I might be unhappy about its impact on the sentence . . . .” These

comments, taken together, show a reasonable probability of a different result if the

Guidelines had been applied in an advisory instead of binding fashion by the

sentencing judge in this case. See Rodriguez, 398 F.3d at 1301.

      Grant also meets the fourth prong of plain-error review. “[T]he plain error

of applying the Guidelines in a mandatory fashion seriously affected the fairness,

integrity or public reputation of [Grant’s] sentencing.” See Martinez, 407 F.3d at

1174. Thus, the district court plainly erred in sentencing Grant under a mandatory

Guidelines scheme.




                                          12
                                     II. CONCLUSION

       For the foregoing reasons, we hold the district court did not commit any

reversible error at trial affecting Readon’s and Grant’s convictions. The district

court did, however, plainly err in sentencing Grant and Readon under a mandatory

Guidelines scheme. Thus, we affirm Readon’s and Grant’s convictions, but vacate

their sentences and remand for resentencing in light of Booker.1 We note the

district court correctly calculated both Readon’s and Grant’s Guidelines range of

151 to 188 months’ imprisonment. See United States v. Crawford, 407 F.3d 1174,

1178–79 (11th Cir. 2005) (stating after Booker, district courts must consult the

Guidelines and “[t]his consultation requirement, at a minimum, obliges the district

court to calculate correctly the sentencing range prescribed by the Guidelines”).

Thus, on remand the district court is required to sentence Readon and Grant

according to Booker, considering the Guidelines advisory range of 151 to 188




       1
        Grant also appeals the district court’s failure to grant him a minor-role reduction. His
argument is without merit. See 11th Cir. R. 36-1.

                                               13
months’ imprisonment and “other statutory concerns as well, see [18 U.S.C.]

§ 3553(a) (Supp. 2004).” Booker, 125 S. Ct. at 757.2

       AFFIRMED IN PART, VACATED AND REMANDED IN PART.




       2
         We do not mean to imply by our holding that on remand the district court must impose a
lesser sentence. Rather, we merely hold Readon and Grant met their burdens of showing Booker
statutory plain error. We also will not attempt to decide now whether particular sentences below
the Guidelines range might be reasonable in this case.

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