                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT                     FILED
                           ________________________          U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                                                   August 17, 2005
                                 No. 03-13389                   THOMAS K. KAHN
                             Non-Argument Calendar                  CLERK
                           ________________________

                       D. C. Docket No. 02-00435-CR-C-NE

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

RODDRICK ANDERSON,
a.k.a. Buster,
WALTER PINCHON,

                                                             Defendants-Appellants.
                           ________________________

                   Appeals from the United States District Court
                      for the Northern District of Alabama
                         _________________________
                               (August 17, 2005)


Before BLACK, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

      Roddrick Anderson and Walter Pinchon appeal following their convictions

for possession with intent to distribute 5 or more grams of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and conspiracy to possess

with intent to distribute 50 or more grams of cocaine base, in violation of

21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846.

       Anderson argues that the district court erred in light of United States

v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005), by treating the United States

Sentencing Guidelines as mandatory. Pinchon argues that the evidence was

insufficient to support his convictions, and that the district court abused its

discretion by denying his motion for a new trial.1 We address the appellants’

arguments in turn.

                                         I.   Anderson

       As to Anderson’s Booker argument, plain error review applies. United

States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005), cert. denied, (U.S. June

20, 2005) (No. 04-1148). “An appellate court may not correct an error 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


       1
          Pinchon also argues, for the first time in his reply brief, that his sentence should be
vacated and remanded in light of Booker. Because Pinchon did not raise this argument in his
initial brief, we decline to review it. See United States v. Silvestri, 409 F.3d 1311, 1338 n. 18
(11th Cir. 2005).

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judicial proceedings.” Id. at 1298 (internal quotations omitted).

      As we have noted, there are two types of Booker error: Sixth Amendment

error and statutory error. United States v. Shelton, 400 F.3d 1325, 1300-31

(11th Cir. 2005). Sixth Amendment, or, “constitutional,” Booker error occurs

when a district court uses extra-verdict enhancements to increase a defendant’s

Guidelines range and then treats this range as mandatory. Id. Because the district

court did not use extra-verdict enhancements to increase Anderson’s sentence,

there was no Sixth Amendment error. However, statutory Booker error occurs

every time a district court treats the range as mandatory, regardless of whether it

imposes any extra-verdict enhancements. Id.

      Turning to the alleged statutory error, the first prong of the plain error

analysis is satisfied because the district court treated the Sentencing Guidelines as

mandatory. See United States v. Martinez, 407 F.3d 1170, 1173 (11th Cir. 2005).

Similarly, the second prong is fulfilled because it is enough for the error to be clear

at the time of appellate review. Id. The third prong is satisfied because the district

court imposed concurrent sentences of 121 months each, the lowest sentences

permitted by a mandatory reading of the Guidelines, and expressed a desire to

sentence Anderson to a “much lighter sentence” than the Guidelines permitted. See

id. at 1173-74.



                                           3
      Lastly, we have repeatedly held that the fourth prong is satisfied where a

district court evinced a desire to impose a lower sentence than that permitted by the

Guidelines, but sentenced the defendant within the Guidelines range based upon

the mistaken belief that this range was mandatory. United States v. Henderson,

409 F.3d 1293, 1307-08 (11th Cir. 2005); United States v. Dacus, 408 F.3d 686,

689 (11th Cir. 2005); Martinez, 407 F.3d at 1174; Shelton, 400 F.3d at 1333-34.

      We therefore reverse and remand for resentencing as to Anderson.

                                    II.   Pinchon

A.    Sufficiency of the evidence

      As to Pinchon’s argument that there was insufficient evidence to support his

convictions, we review “challenges to the sufficiency of the evidence de novo,

viewing the evidence in the light most favorable to the government.” United States

v. Futrell, 209 F.3d 1286, 1288 (11th Cir. 2000). The jury has the exclusive power

to determine the credibility of witnesses. United States v. Chastain, 198 F.3d

1338, 1351 (11th Cir. 1999)

      “In order to obtain a conviction under 21 U.S.C. § 841(a)(1), the

Government must establish the existence of three elements: (1) knowledge (of

one's possession); (2) possession of a controlled substance; and (3) intent to

distribute that substance.” United States v. Wilson, 183 F.3d 1291, 1299 n. 13



                                           4
(11th Cir. 1999). To obtain a conviction under 21 U.S.C. § 846, the government

must “show (1) the existence of an agreement, (2) an overt act in furtherance of the

conspiracy, (3) possession, (4) intent to distribute, and (5) a controlled substance.”

United States v. Boldin, 772 F.2d 719, 727 (11th Cir. 1985).

      In the instant case, the government presented a videotape depicting the drug

transaction that resulted in Pinchon’s convictions. On appeal, Pinchon and the

government make contrary arguments about whether the seller’s identity could be

ascertained from this tape. But it was within the province of the jury, after

reviewing the videotape itself, to accept the government’s version and reject

Pinchon’s. Even assuming that the videotape did not establish Pinchon’s guilt,

however, the trial testimony alone was sufficient to support knowing possession

with intent to distribute under § 841, conspiracy under § 846, and a guilty verdict.

Because the government presented testimony that, if credited, would justify

Pinchon’s convictions, the evidence was sufficient to justify the jury’s guilty

verdict. Chastain, 198 F.3d at 1351.

B.    Motion for a new trial

      As to Pinchon’s argument that the district court erred by denying his motion

for a new trial, we review the denial for an abuse of discretion. United States v.

Ettinger, 344 F.3d 1149, 1161 (11th Cir. 2003).



                                           5
      A defendant must meet five requirements to be entitled to a new trial based

upon newly discovered evidence:

             (1) the evidence must be discovered following trial;
             (2) the movant must show due diligence to discover the
             evidence; (3) the evidence must not be merely cumulative
             or impeaching; (4) the evidence must be material to
             issues before the court; and (5) the evidence must be of
             such a nature that a new trial would probably produce a
             new result.

United States v. Di Bernardo, 880 F.2d 1216, 1224 (11th Cir. 1989).

      Pinchon cannot satisfy the first requirement for obtaining a new trial because

he claims to have discovered the new evidence, i.e., that two witnesses were

associating, during the trial. Because the evidence upon which Pinchon relies was

not discovered “following trial,” he has not met the first requirement for obtaining

a new trial, and the district court did not abuse its discretion by failing to grant his

motion. We therefore affirm Pinchon’s convictions.

      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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