                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                        FILED
                        ________________________
                                                                U.S. COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                               No. 04-12842
                                                                      JUNE 16, 2005
                           Non-Argument Calendar                   THOMAS K. KAHN
                         ________________________                       CLERK

                 D.C. Docket No. 03-00126-CR-FTM-29DNF


UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

     versus

MAX CHARLOT,
a.k.a. Demauntri Keithon Dumals,

                                                        Defendant-Appellant.

                       __________________________

              Appeal from the United States District Court for the
                          Middle District of Florida
                        _________________________
                               (June 16, 2005)

Before TJOFLAT, DUBINA and CARNES, Circuit Judges.

PER CURIAM:

     Max Charlot was indicted for conspiracy to possess with intent to distribute
five kilograms or more of cocaine, in violation of 21 U.S.C. § 846, and possession

of a firearm during and in relation to a drug trafficking crime, in violation of 18

U.S.C. §§ 924(c)(1)(A) & 2. After a jury trial, he was convicted and sentenced to

262 months imprisonment on the conspiracy charge and 60 months imprisonment

on the firearm charge, to be served consecutively.

      Charlot challenges his conviction and his sentence on the conspiracy count.

He contends that the district court abused its discretion by denying his motion for

a mistrial after the government elicited certain testimony from Richard Zayas, an

ATF special agent. Charlot believes that the testimony was inadmissible because

it was hearsay, because it violated his constitutional right to confront his accusers,

and because it was more prejudicial than probative. Charlot also contends that the

district court plainly erred in enhancing his conspiracy sentence based on

impermissible factfindings, specifically about his role in the offense and the drug

quantity involved.

                                          I.

                                          A.

      At trial, Agent Zayas was the government’s first witness. Zayas testified

that he participated in an investigation involving Charlot. The investigation

started when he and another ATF agent received information from a confidential

                                          2
informant. The government asked Zayas what type of information he had received

from the CI, and Charlot objected on hearsay grounds. The government indicated

that it was not trying to elicit what the CI had said, only “generally the subject

matter of the information” provided by the CI. Doc. 197 at 15.

      During a sidebar conference, Charlot argued that offering a general

description of the information received from the CI was just as damaging as

offering the specifics of what the CI had told Zayas. The government argued that

it was attempting to establish that law enforcement “began an investigation of

[Charlot] related to his willingness to participate in home invasion robberies.” Id.

at 16. After some further discussion, the district court concluded that “it’s not

hearsay, [it] just explains what the agent did.” Id. at 17. The court, however,

instructed the government to “elicit that you received information from a CI that

led to an investigation and then explain what the investigation was.” Id.

      The government asked Agent Zayas to identify the nature of the

investigation. Zayas responded that “the nature of the investigation was

individuals involved in armed home invasion robberies.” Id. at 17. Charlot again

objected. The government asked Zayas about his intentions regarding the

investigation and what he ultimately did. Zayas responded: “[m]y intention was to

be introduced to these individuals. At that time determine if these individuals are

                                           3
actually involved in this type of crime, had experience in this type of crime and

wanted to commit this type of crime.” Id. at 18. Charlot again objected, and the

district court called for a sidebar. The court indicated that the government had

disregarded its instructions by eliciting that the CI had told Zayas about Charlot’s

involvement or willingness to participate in home invasions. The government

stated that the information described the nature of the offense, but the judge

countered that “the nature comes from what the CI said. Any idiot would know

what the CI said.” Id. at 19.

      Charlot moved for a mistrial. He asserted that, because of Agent Zayas’

statement, the jury would believe that the CI had told Zayas that Charlot and the

others were committing multiple robberies even though they were only charged

with one robbery. The judge indicated that he would strike Zayas’ testimony and

instruct the jury not to consider it. The judge found that a mistrial was

unnecessary because, based on Zayas’ occupation and the kind of investigation,

the information would be somewhat obvious to the jury regardless of what Zayas

said. Nevertheless, the judge indicated that he would instruct the jury to disregard

Zayas’ testimony because of the mention of the “plural” robberies. Charlot

reasserted his request for a mistrial and voiced his doubt that the jury instruction

would be sufficient. The district court then issued the following instruction to the

                                          4
jury:

        Ladies and gentlemen, the Court will instruct you to disregard, that is
        to not consider the last couple of answers from the witness with
        regard to what was told to him by a confidential informant. All you
        need to know is that he received information and based upon that he
        started an investigation. You don’t need to concern yourself about
        what was said. That’s what we refer to as hearsay and you shall not
        consider that in any way at this point or during your deliberations.

Id. at 22. The government then proceeded with its examination of Zayas.

        Agent Zayas testified that, while undercover, he had met with Charlot and

his co-conspirators. Zayas had portrayed himself as a disgruntled drug courier and

proposed that the men steal 40 kilograms of cocaine from a stash house. Zayas

had told them that someone from the stash house would page him, he would then

contact the co-conspirators, and he would have 20 minutes to get to the stash

house. Charlot had discussed his plans to execute the robbery and affirmed his

commitment to do so.

        The government also presented the testimony of government agents who

had searched the co-conspirators’ cars after their arrests and of four of Charlot’s

co-conspirators. Each of those four co-conspirators testified that the object of the

conspiracy had been to rob the stash house of more than 40 kilograms of cocaine,

killing the guards in the process.

        At the close of the government’s case, Charlot, among other things, renewed

                                           5
his motion for a mistrial based on Agent Zayas’ testimony regarding multiple

home invasion robberies because it was both hearsay and prejudicial. The court

denied the motion, stating that “[t]he testimony that came in from Agent Zayas

after the objection and without any additional objection was essentially the same

and, in any event, there was no manifest necessity in my view for a mistrial.” Doc.

198 at 360. The court further found that “[t]he instruction I gave was

straightforward and severe and told the jury what to do, what not to do with regard

to that evidence . . .” Id.

       Charlot rested his case without presenting any witnesses. He presented his

defense through his opening and closing statements and through his questions on

cross-examination. Charlot’s defense was that while he participated in the

conspiracy, the object of the conspiracy was to rob Agent Zayas, who he thought

was a drug courier, of the two kilograms that Zayas was to pick up at the stash

house—not to rob the stash house.

       The jury found Charlot guilty as charged. It specially found that Charlot’s

conspiracy offense involved at least five kilograms of cocaine. Charlot moved for

a new trial based on the district court’s denial of his motion for a mistrial. The

district court denied his motion.

                                          B.

                                          6
      In preparing the presentence investigation report, the probation officer

assigned Charlot a base offense level of 34 because the offense involved between

15 and 50 kilograms of cocaine. The probation officer also determined that

Charlot was an organizer of the conspiracy and increased his offense level by four.

With an adjusted offense level of 38 and a criminal history category of II, the

applicable guideline range on the conspiracy count was 262–327 months

imprisonment.

      The district court adopted the PSI. Charlot requested the court sentence him

to the low end of the guideline range, and the government requested a longer

sentence. After some discussion, the court sentenced Charlot to 262 months

imprisonment as to the conspiracy count and 60 months imprisonment as to the

firearm count, to be served consecutively.

                                         II.

      Charlot argues that the district court erred in denying his motion for a

mistrial. He contends that Agent Zayas’ testimony concerning the information he

received from the CI was hearsay that violated his Sixth Amendment right to

confront witnesses as explained in Crawford v. Washington, 541 U.S. 36, 124 S.

Ct. 1354 (2004). He further contends that a mistrial was warranted because the

testimony was inadmissible on the grounds that it was more prejudicial than

                                         7
probative. At trial, Charlot only argued the hearsay and prejudice points; his

invocation of the recently decided Crawford case to make a Confrontation Clause

argument is new on appeal.1

       “A trial judge has discretion to grant a mistrial since he or she is in the best

position to evaluate the prejudicial effect of a statement or evidence on the jury.”

United States v. Delgado, 321 F.3d 1338, 1346–47 (11th Cir. 2003) (internal

marks and citations omitted). “[W]hen a district court gives a curative instruction,

the reviewing court will reverse only if the evidence is so highly prejudicial as to

be incurable by the trial court’s admonition.” Id. at 1347 (internal marks and

citations omitted).

                                              A.

       Turning first to Charlot’s hearsay argument, it is unclear whether the

challenged statements are actually hearsay. The statements were not offered by

the government to prove that Charlot was actually involved in prior armed home

invasions, but were offered to establish the reason law enforcement initiated its

investigation. See Fed. R. Evid. 801(c) (“‘Hearsay’ is a statement, other than one

       1
         Charlot presents his Crawford argument as if it is encompassed in his hearsay argument.
The presentation does not change the fact that a hearsay objection is an evidentiary objection,
while Charlot’s Crawford objection arises under the Confrontation Clause of the Constitution.
Though we are sensitive to the fact that Crawford had not yet been decided at the time of
Charlot’s trial, the Confrontation Clause is not new. Nor is it the same as hearsay law.
Accordingly, we treat these as two distinct arguments.

                                               8
made by the declarant while testifying at the trial or hearing, offered in evidence to

prove the truth of the matter asserted.”).

      Moreover, even if the statements were hearsay, the prejudicial effect of

stricken hearsay testimony is slight when it merely summarizes other evidence.

United States v. Funt, 896 F.2d 1288, 1296 (11th Cir. 1990). Here, the court

denied the mistrial because the same evidence had essentially come in, without

objection, through later questioning. Doc. 198 at 360. Thus, the evidence was

not “so highly prejudicial as to be incurable by the trial court’s admonition.”

Delgado, 321 F.3d at 1347 (internal marks and citations omitted). The court did

not abuse its discretion in refusing to grant a mistrial on hearsay grounds.

                                             B.

      Charlot’s Crawford contention was not raised below. Accordingly, our

review is only for plain error. See United States v. Olano, 507 U.S. 725, 731–32,

113 S. Ct. 1770, 1776–77 (1993). “Under plain-error review, the defendant has

the burden to show that there is (1) error (2) that is plain and (3) that affect[s]

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

affect[s] the fairness, integrity, or public reputation of judicial proceedings.”

United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003) (internal marks

                                             9
and citations omitted; alterations in original).

      Here, even assuming there was a Confrontation Clause error that is plain

under Crawford, Charlot cannot show that his substantial rights have been

affected. Usually, to affect substantial rights an “error must have been prejudicial:

It must have affected the outcome of the district court proceedings.” Olano, 507

U.S. at 734, 113 S. Ct. at 1778. Charlot’s argument that he has been prejudiced

derives from his trial defense that he had intended only to rob Agent Zayas of the

two kilograms of cocaine that he thought Zayas would be getting from the stash

house; he had not intended to rob the stash house of more than 40 kilograms of

cocaine and kill the guards, as alleged by the government. Charlot thinks that

Zayas’ reference to prior “armed home invasion robberies” made it more likely

that the jury would conclude that Charlot had intended to rob the stash house.

      In light of the overwhelming evidence of guilt introduced at trial, Charlot

cannot meet his burden of demonstrating that the challenged testimony affected

the outcome of his trial. Charlot admitted that he had participated in the

conspiracy, and both Agent Zayas and four co-conspirators testified that the object

of the conspiracy had been to rob the stash house. Because Charlot cannot show

the existence of plain error under the Supreme Court’s Crawford Confrontation

Clause case, he cannot show that the district court abused its discretion by refusing

                                          10
to grant a mistrial due to that alleged error.

                                               C.

       Third, we turn to Charlot’s argument that a mistrial should have been

granted because the challenged testimony was more prejudicial than probative,

and thus inadmissable under Fed. R. Evid. 403.2 As an initial matter, it is not

entirely clear that the statement was inadmissible. The statement was probative. It

helped to explain why Agent Zayas approached Charlot with the proposition to

rob a stash house. Cf. United States v. Williford, 764 F.2d 1493, 1499 (11th Cir.

1985) (“Evidence, not part of the crime charged but pertaining to the chain of

events explaining the context, motive and set-up of the crime, is properly admitted

if linked in time and circumstances with the charged crime, or forms an integral

and natural part of an account of the crime, or is necessary to complete the story of

the crime for the jury.”). Additionally, we have cautioned that “Rule 403 is an

extraordinary remedy which the district court should invoke sparingly.” United

States v. Elkins, 885 F.2d 775, 784 (11th Cir. 1989). Indeed, “[t]he balance under

Rule 403 should be struck in favor of admissibility. “ Id.



       2
          Rule 403 provides that: “Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.”

                                                11
      The district court explicitly instructed the jury that they were to disregard

the statement. Moreover, Zayas’ further testimony, which was admitted without

objection, encompassed the same information as the stricken statement. And, in

light of Charlot’s conceded involvement in the conspiracy and the overwhelming

evidence that the object of the conspiracy was to rob the stash house, any potential

prejudice from the challenged testimony is not significant. See United States v.

Rodriguez-Arevalo, 734 F.2d 612, 615 (11th Cir. 1984) (“Prejudicial testimony

will not mandate a mistrial when there is other significant evidence of guilt which

reduces the likelihood that the otherwise improper testimony had a substantial

impact upon the verdict of the jury.”). The district court did not abuse its

discretion in denying a mistrial on this ground.

                                         III.

      Charlot contends that his sentence was unconstitutionally enhanced based

on judicial factfindings as to his role in the offense and the quantity of cocaine

involved. Charlot bases this argument on Blakely v. Washington, 542 U.S. ___,

124 S. Ct. 2531 (2004). After Charlot filed his appeal, the Supreme Court applied

its Blakely jurisprudence to the federal sentencing guidelines. See United States

v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005).

      Charlot’s Booker argument is reviewed only for plain error because he did

                                          12
not raise it before the district court. See United States v. Olano, 507 U.S. 725,

731–32, 113 S. Ct. 1770, 1776–77 (1993). A defendant cannot meet the plain

error standard for Booker error unless he can demonstrate a “reasonable

probability of a different result if the guidelines had been applied in an advisory

instead of binding fashion by the sentencing judge.” United States v. Rodriguez,

398 F.3d 1291, 1301 (11th Cir. 2005).

      In United States v. Shelton, 400 F.3d 1325 (11th Cir. 2005), the district

court indicated that the sentence “was ‘very, very severe’” and “noted that

‘unfortunately’ the Guidelines criminal-history calculation” considered past

charges, but not the nature of the crimes as reflected in the sentences imposed. Id.

at 1328. Additionally, the district court expressed that the sentence was “more

than [was] appropriate in this situation.” Id. (alteration in original). Here, there

was nothing approaching that.

      In this case, the district court set out the sentencing guidelines range of

262–327 months and asked if Charlot or defense counsel had anything to say

before a sentence was imposed. Defense counsel asked that Charlot be sentenced

to the low end of the guidelines range, pointing to Charlot’s youth and suggesting

that he had fallen in with the wrong crowd. Charlot himself then apologized to the

courts, the government, and his family. He asked for the low end of the guideline

                                          13
range and expressed hope that he would eventually be released so that he could set

a good example for his son.

      The prosecutor responded by emphasizing Charlot’s leadership role in the

offense and the sentences being imposed on Charlot’s co-defendants. The

prosecutor also commented that “any sentence in this particular case is obviously a

long one and one that’s commensurate with the offense.” Sentencing Tr. at 8.

      Defense counsel then argued again that the low end of the guidelines range

would be “sufficient punishment,” and that the range was as high as it was because

of the role enhancement. Sentencing Tr. at 8–9. The district court confirmed that

the role enhancement had contributed to the higher sentencing range, as had

Charlot’s lack of acceptance of responsibility. The court then said:

             It’s hard not to think a sentence of 262 months for anyone isn’t a long
      sentence, certainly, someone with a criminal history of only Category II, so I
      appreciate what Mr. Cases[, the prosecutor,] is saying about [Charlot’s] role
      [in the conspiracy]. That has been accounted for under the guidelines
      already. Unless someone talks me out of it, I do intend to impose a sentence
      at the low end of the guidelines.

Sentencing Tr. at 9. Defense counsel said “I’ll be quiet then.” Sentencing Tr. at 9.

The court responded as follows:



            I don’t mean to shut you up, but I want you to know that I think that’s
      a substantial sentence. This is a significant crime and could have resulted in

                                         14
        some very serious activity and it didn’t. But, nonetheless, the Court feels
        that 262 months in the circumstances of the case is a sufficient sentence.

Sentencing Tr. at 9–10. The court then sentenced Charlot to 262 months.

        Although the district court in this case did note that the sentence was

substantial, it also indicated that the lengthy sentence was deserved because of the

seriousness of the crime and Charlot’s role in committing it. Indeed, the court’s

comments appear to be an explanation of why the court felt that a longer sentence

was not required. Noting that a sentence is “sufficient” is not tantamount to

characterizing it as more than sufficient. We do not read the comments as an

expression of concern that the sentence was too long. Cf. Shelton, 400 F.3d at

1328.

        We recognize that the dialogue between counsel and the court reflects their

understanding that the guidelines were mandatory. But, demonstrating plain error

under Booker “takes something more than showing the district court sentenced

within the Guidelines range and felt bound to do so, especially given that the

Guidelines range remains an important factor in sentencing.” Id. at 1332

(footnote omitted).

        Moreover, defense counsel was not prevented from making any arguments

that would have influenced the court to impose a sentence below the applicable



                                           15
guidelines range. Prior to counsel’s comment that he would “be quiet,” he had

already made all the arguments he intended to make. With respect to the PSI,

counsel had asked the court to consider the fact that there were no actual drugs

involved and stated that “[t]here’s no other legal arguments other than those

made” in motions he had previously filed. Sentencing Tr. at 3–4. And, as we’ve

already said, after the court set out the sentencing range, counsel asked that

Charlot be sentenced to the low end of the guidelines range, pointing to Charlot’s

youth and suggesting that he had fallen in with the wrong crowd. When counsel

was done with those arguments, Charlot allocuted.

      Charlot has not shown a “reasonable probability of a different result if the

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

sentencing judge.” Rodriguez, 398 F.3d at 1301.

      AFFIRMED.




                                         16
TJOFLAT, Circuit Judge, concurring:

      Count One of the indictment in this case charged Charlot and five others

with conspiring to possess with intent to distribute and to distribute five kilograms

or more of a mixture or substance containing a detectable amount of cocaine. The

jury’s verdict established for Blakely/Booker purposes that the crime involved five

or more kilograms of the drug. According to U.S.S.G. § 2D1.1(a)(3), the base

offense level for that drug quantity is 32. Given Charlot’s criminal history

category of II, the sentence prescribed for that offense level was 135 to 168

months’ imprisonment. The PSI, however, held Charlot accountable for 40 to 50

kilograms of cocaine, which yielded a base offense level of 34, and adjusted that

level by four levels pursuant to U.S.S.G. § 3B1.1(a) for his role as an organizer or

leader of the conspiracy. The resulting offense level of 38 enhanced Charlot’s

sentence range to 262 to 327 months’ imprisonment, as the court’s opinion

indicates, ante at ____, and the court selected the lower figure as Charlot’s Count

One sentence.

      Charlot did not object on Sixth Amendment grounds to the court’s

enhancement of his offense level from 32 to 38. Hence, a constitutional error did




                                         17
not occur in this case.1 The only Blakely/Booker error the court could have made

was to treat the Sentencing Guidelines as mandatory rather than advisory. Charlot

did not object, however, to the district court’s treatment of the Guidelines as

mandatory. Nor did he raise the issue in his initial (or reply) brief on appeal.

Nonetheless, I give him the benefit of the doubt and assume that the

Blakely/Booker objection he presents in his briefs subsumes the

mandatory/advisory issue. The question thus becomes whether he has shown

reversible plain error.

       Operating under this assumption, I conclude that Charlot has demonstrated

error that is plain. He fails, however, to establish prejudice, the third prong of the

plain-error test. As Booker instructs, a district court’s starting point in fashioning

a post-Booker sentence is to determine the applicable guideline. The court did

that in this case, and then imposed a sentence at the bottom of the Guidelines

range. Had the court treated that range as advisory, instead of mandatory, we

would have to say that the sentence was not unreasonable. Nothing in the record

of the sentencing proceeding suggests that the court would have imposed a lesser


       1
         Charlot’s initial and reply briefs assert that the district court committed Sixth
Amendment error because it enhanced the defendant’s sentence on the basis of facts neither
found by the jury nor admitted by the defendant. My reading of the record leads me to conclude
that Charlot admitted all of the facts recited in the PSI and thus all of the facts that gave rise to
the enhancements.

                                                 18
sentence had it viewed the Guidelines range as advisory. Thus, no prejudice is

shown here.




                                        19
