                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3541
                                   ___________

United States of America,             *
                                      *
            Plaintiff-Appellee,       *
                                      * Appeal from the United States
     v.                               * District Court for the
                                      * District of Minnesota.
Robert Lee Bailey,                    *
                                      * [UNPUBLISHED]
            Defendant-Appellant.      *
                                 ___________

                             Submitted: June 23, 2005
                                Filed: August 2, 2005
                                 ___________

Before RILEY, BRIGHT, and JOHN R. GIBSON, Circuit Judges.
                             ___________

BRIGHT, Circuit Judge.

      Robert Bailey appeals from his conviction, following a jury trial, and sentence
on two counts of interstate transportation of a person to engage in prostitution and
one count of possessing a firearm while a felon. We affirm Bailey’s conviction but
remand for resentencing.

     Bailey challenges his conviction on four grounds, and his sentence on three
grounds. We consider his arguments briefly in turn, stating the facts as we go along.
The Conviction

1.

      Bailey argues that he is entitled to a new trial because the government
presented irrelevant evidence that Bailey had assaulted his girlfriend, whom he was
pimping.

       The girlfriend had testified to a grand jury that Bailey had assaulted her in
connection with their pimp/prostitute relationship. The government briefly referred
to the anticipated evidence of this in opening statements at trial. When the girlfriend
testified, however, she did not say that the assault had anything to do with
prostitution. She said, rather, that Bailey assaulted her because she had taken some
of his money. Bailey also agreed to certain testimony from a police officer, relating
statements the girlfriend had made to the officer about the assault. The officer gave
the agreed upon testimony.

       Bailey did not object to the evidence and remarks concerning the assault, so we
review the issue only for plain error. United States v. Olano, 507 U.S. 725, 731
(1993). To preserve on plain-error review, Bailey must show not only that there was
error that was plain, but that it prejudiced him. See id. at 732. The evidence
concerning the assault was brief and sterile. Moreover, it related principally to a
count on which the jury acquitted Bailey. We determine, therefore, that Bailey has
not shown plain error on this issue.

2.

      Bailey argues that he is entitled to a new trial because the government
presented irrelevant evidence that Bailey was connected with drug crimes – with
which he was not charged.

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       Bailey did not object to the presentation of evidence related to drug crimes, so
we review this issue for plain error. We need not recite the details of the evidence
and the underlying facts, which are presented in the briefs. We have carefully
considered these details, and we determine that the evidence presented concerning
drug crimes was relevant to trace the path of marked “buy money” that the police
used in a sting operation to prove that Bailey was pimping the prostitutes. Evidence
concerning the pimping and prostitution became entwined with evidence of the drug
crimes because after the prostitution buy money went into Bailey’s hands, he spent
it on drugs, paying it to a dealer in a transaction at Bailey’s house. The dealer was
present when police arrived to search the house and threw the money away when the
police arrived.

      The district court did not err in admitting the evidence Bailey challenges.1

3.

      Bailey argues that he is entitled to a new trial because some of the evidence
used against him was obtained in a search made under an invalid search warrant.
Additionally, Bailey argues that the search – made under a warrant obtained pursuant
to Minnesota state law – is invalid because of certain technical violations of the state
requirements.

     Bailey did not raise this issue before trial, as required by Federal Rule 12(e) of
Criminal Procedure. This Circuit has not decided whether such an issue is reviewable



      1
        Had Bailey asked the district court to control the presentation of this evidence
so as to give the government what it was entitled to, while preventing or minimizing
any prejudice to Bailey from the evidence of drug use, it would have been appropriate
for the court to do so. But it appears that Bailey did not raise the issue and make the
request.

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on appeal. We do not decide the issue here, because there is no need to do so.
Bailey’s argument – reviewable for plain error if reviewable at all – fails in any event.

       Bailey argues that the search warrant was obtained on the basis of a false
affidavit by a police officer. Bailey asserts that the officer made false statements and
omitted a material fact. Having made that general assertion, however, Bailey fails to
identify any false statement made by the officer or any omission that would invalidate
the warrant.

       The officer’s affidavit recounted statements made by two witnesses – the
prostitutes Bailey pimped – and the basis for assessing the reliability of those
statements.2 In this appeal, Bailey alleges not that the officer’s statements (recounting
witness assertions) were false, but rather that the assertions by one of the witnesses
were false. Bailey does not dispute that the officer’s affidavit truthfully conveyed the
witness assertions to the magistrate judge, along with information from which the
magistrate judge could assess the reliability of the assertions. In short, Bailey does
not identify any statement by the officer that is alleged to be false.

       Bailey states that the officer’s affidavit omitted a crucial fact concerning one
of the two witnesses whose assertions the affidavit related. The omitted fact was that
one of the witnesses was wanted on a fugitive warrant and that the officer let her go.
Bailey argues that this fact would have undermined any probable cause arising from
this witness’ statements. Bailey does not explain why it would have done so, and we
determine it would not have. The officer truthfully identified the witnesses as


      2
        The affidavit does contain discrete sentences not prefaced with such phrases
as “the witness said that . . .” or “according to the witness . . . .” Nonetheless, it is
clear beyond dispute that such sentences were repeating what the witnesses said, and
that the sole source of the statements were the witnesses. The officer did not present
himself as a witness to the underlying facts, but only as a witness to the statements
given by the prostitutes.

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confessed prostitutes. The officer did not burnish the character of the witnesses in
a fraudulent attempt to enhance their apparent reliability, and we determine that the
omitted fact concerning the fugitive warrant would not have undermined the
reliability of the witness’ assertions. Nor – on the facts alleged by Bailey – would the
fact that the officer did not arrest the witness on the fugitive warrant undermine the
reliability of her assertions.3

       Bailey has not alleged facts that would invalidate the search warrant because
of a defective affidavit.

       Bailey’s argument concerning violations of technical requirements of the
Minnesota statutes concerning search warrants also fails. Bailey asserts that the
officers did not observe requirements concerning the inventorying of property and
filing of records. Bailey notes that the state law requirements are similar to the
requirements of Federal Rule 41 of Criminal Procedure. Bailey correctly observes
that such requirements are important safeguards for ensuring the integrity of searches.

       Nonetheless, if this issue is reviewable at all, notwithstanding Bailey’s failure
to raise it timely under Rule 12, it is reviewable only for plain error. Bailey has not
shown that it was error to admit the evidence obtained in the search despite the
procedural irregularities following the search. Nor has Bailey shown that any such
error is plain.

      Bailey’s arguments concerning the search fail.




      3
        Bailey does not allege, for instance, that the officer used the possibility of
arresting the witness on the fugitive warrant to bribe or coerce her into making
statements.

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4.

      Bailey argues that he is entitled to a new trial because of certain statements he
made to the police, statements he says the police provoked him to make, in violation
of Miranda v. Arizona, 384 U.S. 436 (1966).

       The police may not speak or act in a manner that would be reasonably likely
to elicit incriminating responses from a person in custody who has not waived his
Fifth Amendment rights. Rhode Island v. Innis, 446 U.S. 291, 300-301 (1980).

       In the first instance, after having informed Bailey that he was being arrested for
promoting prostitution, the officers discovered a gun they believed to be Bailey's. An
officer then told Bailey he was also under arrest for illegally possessing a gun. Bailey
responded by admitting the gun was his. Bailey’s voluntary confession was not a
reasonably likely response, and the district court did not err by admitting it.

       In the second instance, a federal officer arranged to take Bailey’s fingerprints
for federal records (which the Minnesota officers had previously done for state
records). Upon entering a room Bailey was in, the federal officer informed Bailey
that the officer was there for the sole purpose of taking fingerprints and so would not
re-inform Bailey of his Miranda rights. Bailey responded by confessing that his
fingerprints might be on the gun recovered at his house. Bailey’s voluntary
confession was not a reasonably likely response, and the district court did not err by
admitting it.

The Sentence

       At sentencing, prior to the Supreme Court’s decision in United States v.
Booker, 543 U.S. ----, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) , Bailey challenged the
constitutionality of the federal sentencing guidelines, which were mandatory. The

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district court did not resolve the constitutional issue, and it is uncertain whether the
court treated the guidelines as mandatory or advisory. In this situation, Bailey is
entitled to resentencing. See United States v. Adams, 401 F.3d 886, 900 (8th Cir.
2005).

       Bailey raises other sentencing issues. In light of our remand, we pass over
these issues, except to comment on the court’s application of USSG § 5G1.2(d), a
provision that addresses when sentences on multiple convictions should run
concurrently and when consecutively. This section is difficult to parse, but its
meaning is that if, for whatever reason, the total term of incarceration required under
the guidelines and statutes is longer than the term for any single count – for instance,
the total punishment under the guidelines and statutes exceeds the statutory maximum
for any one count – then the sentences should be run consecutively to the extent
necessary to get to that preordained total term of incarceration. See, e.g., United
States v. Harrison, 340 F.3d 497, 500-01 (8th Cir. 2003); United States v. Diaz, 296
F.3d 680, 684 (8th Cir. 2002) (en banc). Otherwise, the sentences should be run
concurrently. Section 5G1.2(d) is not a device for allowing discretionary increases
to the effective term of imprisonment, beyond what the guidelines and statutes
otherwise require. By using this section to increase Bailey’s term of imprisonment
beyond what was otherwise required, the district court misinterpreted and misapplied
that section of the guidelines.

Conclusion

      We affirm Bailey’s conviction and remand the case for resentencing.
                     ______________________________




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