                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              JULY 6, 2006
                              No. 04-15124                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                      D. C. Docket No. 02-00591-CR-3-1

UNITED STATES OF AMERICA,


                                                        Plaintiff-Appellee,

                                    versus

LEROY EVANS,

                                                        Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                               (July 6, 2006)

Before HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Defendant Leroy Evans appeals his convictions and concurrent thirty-seven
month sentences following a jury trial for the following offenses: (1) conspiracy to

obtain fraudulent student visas and induce aliens to unlawfully reside in the United

States, in violation of 18 U.S.C. §§ 371, 1546(a) and 8 U.S.C. § 1324(a)(1)(A)(iv),

(a)(1)(B)(i); (2) obtaining fraudulent student visas, in violation of 18 U.S.C.

§ 1546(a); and (3) inducing aliens to unlawfully reside in the United States, in

violation of 8 U.S.C. § 1324(a)(1)(A)(iv), (a)(1)(B)(i). After review, we affirm

Evans’s convictions, vacate his sentences, and remand for resentencing.

                                 I. BACKGROUND

A.    Convictions

      Because Evans’s convictions involve student visas, we review briefly the

student visa process. In order for a foreign national to be admitted into the United

States to attend college, the foreign national must be issued an I-20 form from the

college to which he has been admitted. He then must apply for a student visa at the

United States Embassy in his home country. Once issued, the student visa is valid

for the duration of the foreign national’s studies in the United States, usually lasting

four to five years.

      If the foreign national is already present in the United States, the foreign

national, before applying for a visa, must show that he is lawfully here by

presenting an I-94 card, and then must petition the Immigration and Naturalization

Service (“INS”) to change his existing status to student status by submitting a form

                                           2
I-539. At the same time, the foreign national must have applied for admission to a

college, and the college must approve the college admission application and issue an

I-20 form, which is signed by the school’s designated school official (“DSO”) and

forwarded to the INS. The INS would then issue a student visa. If the foreign

national does not enroll or withdraws from the college, the DSO notifies the INS,

which then revokes the student visa.

      Defendant Evans was the DSO for foreign students at Morris Brown College

(“MBC”) in Atlanta from January 1998 through September 2001. Evans and his

co-defendants carried out a scheme to have MBC fraudulently issue I-20

immigration forms on behalf of undocumented aliens, or foreign nationals present

in the country without I-94 cards, which allowed the aliens to unlawfully obtain

student visas from the INS even though they were not applying to or attending

MBC. Co-defendants would prepare the necessary paperwork so that the I-20

forms could be issued.

      Once the fraudulent paperwork was sent to him, defendant Evans’s role was

to sign the false college enrollment applications in his official DSO capacity and

issue the I-20 forms indicating that the foreign nationals or aliens were to be

students at MBC even though they were not going to be. Evans then forwarded the

fraudulent forms to the INS, which issued the unlawfully obtained student visas.



                                           3
Evans and his co-defendants charged each foreign national between $2,500 and

$5,000, which they divided among themselves, to prepare the paperwork so that a

student visa would be issued to them. After examining a list of foreign nationals

who had received I-20 forms from MBC and the INS files for some of the foreign

nationals on the list, the INS identified more than fifty fraudulent visa applications.

      At trial, William Shepard, a professor at MBC and its legal counsel from

1999 to 2001, testified that MBC received a grand jury subpoena from the

government in November 2001, requesting admission applications, financial aid

applications, registration and attendance records, class schedules, transcripts, and I-

20 forms for approximately 150 foreign students. The subpoena had a return date

of December 18, 2001.

      Defendant Evans was responsible for assembling and providing the records.

Evans indicated that he would get the documents together, but Shepard did not

receive them by the December 18 deadline. Shepard then contacted the United

States Attorney’s Office and was granted additional time to respond to the

subpoena. Shepard still did not receive the records from Evans and requested and

received a second and, later, possibly a third extension. Shepard met with

defendant Evans several times, and each time Evans advised that he was working

on getting the records.



                                           4
        On July 9, 2002, MBC received a second subpoena, which requested the

same information as the first subpoena for an additional 150 foreign students and

had a return date of August 20, 2002. On Shepard’s “final visit” to defendant

Evans’s office, Evans provided Shepard with forty folders containing the files for

two students listed on the subpoenas. Shepard observed defendant Evans print out

I-20 forms dated December 17, 2001, put them in a folder, and hand them to

Shepard. Evans told Shepard that the forms had the same date because he was

having problems with his computer software. On cross-examination, Shepard

could not remember the date Evans provided the I-20 forms dated December 17,

2001.

        After the government rested its case, Shepard was recalled by defendant

Evans and testified that he and Carolyn Jackson, who was MBC’s registrar at the

time, delivered the documents to the grand jury. Shepard stated that “a significant

amount of time passed” between receipt of the subpoena and delivery of the

records. Specifically, Shepard testified:

        I don’t recall the date that we went to the grand jury. I will say again
        what I have to say on this is very simple . . . and that is we received
        the subpoena duces tecum. I attempted on a number of occasions to
        get the information from Mr. Evans, was unsuccessful. I even asked
        for an extension of time.
               Eventually one night I received it about 8:00 o’clock. He
        printed it out and put it in folders and gave it to me, and we brought
        that information to the grand jury. I don’t remember the exact date it

                                            5
        was.

Jackson testified that she, Shepard, and Evans delivered the records to the grand

jury on a day when “[i]t was very cold, like it is today[, November 24, 2003].” She

could not recall the specific date, other than the fact that it was cold outside at the

time.

        Following the close of evidence, the district court told the jury that “[d]uring

the trial of the case, there has been testimony concerning record-keeping and

reporting requirements concerning students with F-1 visas. Therefore, the court

finds it appropriate to give you instructions concerning these matters.” Based on 8

C.F.R. § 214.3(g), the district court specifically instructed the jury:

        Federal Regulations require a school to keep records relating to each
        F-1 student to whom it has issued a Form I-20 while the student is
        attending the school and until it notifies the Immigration and
        Naturalization Service, the INS, that the student is not pursuing a full
        course of study in accordance with the reporting requirements about
        which I will now instruct you.
                The Designated School Official must make information
        available to the INS upon request. The INS will periodically send
        each school a list of all F-1 students who, according to its records, are
        attending that school. A Designated School Official at the school
        must note on the list whether or not each student on the list is pursuing
        a full course of study. The Designated School Official must comply
        with the request within 60 days of the date of the request. The school
        must keep a record of having complied with this reporting
        requirement for at least one year.

The jury convicted Evans on all counts.



                                            6
      After the trial, Evans filed a motion for new trial pursuant to Federal Rule of

Criminal Procedure 33, arguing, among other things, that the district court erred by

allowing the government to rely on Shepard’s testimony, which Evans alleged was

perjurous. The district court denied the motion.

B.    Sentencing

      The presentence investigation report (“PSI”) assigned Evans a total offense

level of twenty, consisting of (1) a base offense level of twelve, pursuant to

U.S.S.G. § 2L1.1; (2) a six-level increase under U.S.S.G. § 2L1.1(b)(2)(B), for

harboring more than twenty-five but less than ninety-nine illegal aliens; and (3) a

two-level upward adjustment under U.S.S.G. § 3B1.3 for abuse of a position of

trust. Evans’s criminal history category of II and total offense level of twenty

produced a Guidelines range of thirty-seven to forty-six months’ imprisonment.

Prior to sentencing, Evans filed a motion to declare the Guidelines unconstitutional

based on Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).

      At sentencing on August 31, 2004, the district court denied Evans’s Blakely

motion, finding that the district court was bound by the Guidelines. The district

court noted that Evans had been involved in a fraud scheme in the late 1980s,

though he had also been “involved in worthwhile endeavors.” The district court

determined that a sentence at the low end of the Guidelines range was “fair under



                                           7
the circumstances,” and sentenced Evans to thirty-seven months’ imprisonment

and three years’ supervised release on each count, to run concurrently. The district

court did not state whether it would have imposed a different sentence under an

advisory Guidelines scheme. Evans timely appealed.

                                       II. DISCUSSION

       Evans raises three issues on appeal. We address each in turn.

A.     Jury Instruction Based on 8 C.F.R. § 214.3(g)

       Evans argues that the district court erred by instructing the jury about the

civil record keeping requirements set forth at 8 C.F.R. § 214.3(g). Evans contends

that the district court should have specified that a violation of the reporting

requirements was not criminal to prevent the jury from convicting him for

violating a civil regulation. He also asserts that the district court inaccurately

interpreted the regulation in the instruction and failed to properly explain the

regulation to the jury.1

       The § 214.3(g) regulation at issue states:


       1
         We review the legal correctness of a jury instruction de novo, but defer to the district
court on questions of phrasing absent an abuse of discretion. United States v. Prather, 205 F.3d
1265, 1270 (11th Cir. 2000). “We review the district court’s refusal to give a requested
instruction for abuse of discretion.” United States v. Sirang, 70 F.3d 588, 593 (11th Cir. 1995).
“On appeal, we examine whether the jury charges, considered as a whole, sufficiently instructed
the jury so that the jurors understood the issues and were not misled. However, if no objection
to the instructions was raised at trial, we only review for plain error.” United States v. Starke, 62
F.3d 1374, 1380 (11th Cir. 1995) (citation and quotation marks omitted).


                                                  8
      An approved school must keep records containing certain specific
      information and documents relating to each F-1 or M-1 student to
      whom it has issued a Form I-20A or I-20M while the student is
      attending the school and until the school notifies the Service, in
      accordance with the requirements of paragraph (g)(2) of this section,
      that the student is not pursuing a full course of study. The school
      must keep a record of having complied with the reporting
      requirements for at least one year. . . . The designated school official
      must make the information and documents required by this paragraph
      available to and furnish them to any Service officer upon request.

8 C.F.R. § 214.3(g)(1).

      In this case, the district court instructed the jury that the regulation required

the DSO to maintain records “while the student is attending the school and until it

notifies [the INS] that the student is not pursuing a full course of study in

accordance with the reporting requirements.” It stated that the DSO “must make

information available to the INS upon request,” and that the “school must keep a

record of having complied with this reporting request for at least one year.” The

instruction given by the district court accurately depicted the language of the

regulation, such that it was a correct statement of law, and there was no abuse of

discretion as to the phrasing. See United States v. Prather, 205 F.3d 1265, 1270

(11th Cir. 2000).

      This leaves the issue as to whether the instruction confused the jury. We

conclude that it did not because the district court also clearly instructed the jury on

the specific elements of the charged offenses, did not reference the recordkeeping

                                           9
requirement in connection with the charged offenses, and specified that Evans was

being tried as to only the offenses set forth in the indictment. The district court

also repeatedly informed the jury that it must find Evans guilty beyond a

reasonable doubt. Therefore, after reviewing the jury instructions as a whole, we

conclude that the jury was not misled by the § 214.3(g) instruction.2 See United

States v. Starke, 62 F.3d 1374, 1380 (11th Cir. 1995).

B.     Motion for New Trial Based on Shepard’s Testimony

       Evans argues that the district court abused its discretion by denying his

motion for a new trial in light of allegedly knowingly perjurous testimony elicited

from Shepard by the government.3

       “A conviction must be overturned which rests in part upon the knowing use


       2
          Although Evans claims that he objected to the jury instruction in the district court, Evans
provides no cite to where he objected before the instruction was given. Evans also argues that
the district court should have given an instruction that § 214.3(g) was a civil statute, not a
criminal one, but we also cannot locate a request for such an instruction. This would normally
limit review to plain error. However, even if objections were timely made or the instruction
requested, we review only for abuse of discretion, and our review of the jury instructions as a
whole leads us to conclude that the district court acted within its discretion. Specifically, the
district court’s repeated instructions regarding the reasonable doubt standard and the district
court’s delineation of the elements of the offenses listed in the indictment without further
mention of § 214.3(g) or its requirements show that the district court implicitly instructed the
jury that the requirements of § 214.3(g) were not elements of the charged offenses or otherwise
indicative of guilt. See Sirang, 70 F.3d at 593 (refusal to give instruction is not abuse of
discretion if, among other things, other instructions addressed the substance of the requested
instruction).
       3
         “We review the district court’s denial of a motion for new trial under an abuse of
discretion standard.” United States v. Michael, 17 F.3d 1383, 1384 (11th Cir. 1994).


                                                 10
of false testimony if there is any reasonable likelihood that the false testimony

could have affected the judgment of the jury.” DeMarco v. United States, 928 F.2d

1074, 1077 (11th Cir. 1991). However, we have refused “to impute knowledge of

falsity to the prosecutor where a key government witness’ testimony is in conflict

with another’s statement or testimony.” United States v. Michael, 17 F.3d 1383,

1385 (11th Cir. 1994). “The fact that the witnesses’ recollections varied as to one

aspect of the [case] falls far short of establishing that the government knowingly

presented false testimony to the jury . . . .” Id. Additionally, where two witnesses

give conflicting or contradictory testimony, the jury is entitled to weigh them

against each other to decide which is credible. See United States v. Kelley, 412

F.3d 1240, 1247 (11th Cir. 2005). The credibility of witnesses is the exclusive

province of the jury. Id.

      A review of the record reveals that Shepard did not testify inconsistently

with respect to his ability to timely comply with the subpoena. When Shepard was

first questioned about whether he was able to return the subpoenaed records on

time, he indicated that he was unable to comply with the subpoena within the

additional time the government provided. On cross-examination, Shepard testified

that he could not remember the date on which Evans gave him the I-20 forms dated

December 17, 2001. When Evans recalled Shepard, Shepard testified that “a



                                          11
significant amount of time passed” between receipt of the subpoena and delivery of

the records and that he could not remember the exact date he delivered the records

to the grand jury. Jackson also could not remember the exact date the records were

delivered to the grand jury, but believed it was a cold day.

       Shepard’s testimony does not necessarily conflict with Jackson’s own vague

testimony regarding the date the records were delivered to the grand jury. Even if

Shepard’s testimony did conflict with Jackson’s, the conflict—specifically, their

recollections as to when they delivered the records—does not show that the

government knowingly presented false testimony. Michael, 17 F.3d at 1385.

Further, the jury, as the sole arbiter of credibility, was entitled to believe one

witness over another and otherwise resolve any conflicting testimony.4 See Kelley,

412 F.3d at 1247. Therefore, we conclude that the district court did not abuse its

discretion by denying Evans’s motion for new trial based on Shepard’s testimony.

C.     Sentencing Under Booker

       Evans argues that the district court committed constitutional error under

United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), by enhancing his

sentence based on facts not proven to a jury nor admitted by him. Evans was

sentenced on August 31, 2004, under a mandatory Guidelines system before


       4
        We note that in his closing argument Evans argued that Shepard’s testimony was
incredible due to inconsistencies.

                                             12
Booker was decided. The government concedes in its brief that the district court

committed constitutional Booker error, that it cannot show beyond a reasonable

doubt that the error was harmless, and that Evans is entitled to have his sentence

vacated and his case remanded for resentencing. We agree.

       Although we vacate Evans’s sentences, we point out that the constitutional

Booker error stems not from the district court’s extra-verdict enhancements in this

case, but from the use of those extra-verdict enhancements in sentencing Evans

under a mandatory Guidelines scheme. Further, on appeal Evans does not contend

that the district court misapplied the Guidelines in calculating his Guidelines range.

Thus, on remand the district court is required to sentence Evans under an advisory

Guidelines regime and shall consider the Guidelines range of thirty-seven to forty-

six months and “other statutory concerns as well, see [18 U.S.C.] § 3553(a) (Supp.

2004).” Booker, 543 U.S. at 246, 125 S. Ct. at 757.5

                                     III. CONCLUSION

       For the above reasons, we affirm Evans’s convictions, vacate his sentences,


       5
         We do not suggest that on remand the district court must impose any particular sentence
or that the district court is not free to impose the same sentence. Furthermore, as this is a limited
remand to permit the district court to determine what sentence is reasonable and appropriate after
considering the now-advisory Guidelines range and the factors set forth in 18 U.S.C. § 3553(a),
Evans may not re-argue issues already or necessarily decided during the first sentencing which
either have been affirmed in this appeal or could have been but were not raised by him during
this appeal. See United States v. Davis, 329 F.3d 1250, 1252 (11th Cir. 2003) (explaining that
when the appellate court issues a limited mandate, “the trial court is restricted in the range of
issues it may consider on remand”).

                                                 13
and remand this case for resentencing.

      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




                                         14
