                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-4628



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


JASON LOREL MINTER,

                                             Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
District Judge. (CR-03-253)


Argued:   May 27, 2005                  Decided:     September 8, 2005


Before MOTZ and KING, Circuit Judges, and Eugene E. SILER, Jr.,
Senior Circuit Judge of the United States Court of Appeals for the
Sixth Circuit, sitting by designation.


Affirmed in part, vacated in part, and remanded by unpublished
opinion. Senior Judge Siler wrote the opinion, in which Judge Motz
and Judge King joined.


ARGUED: Barron Michael Helgoe, Charleston, West Virginia, for
Appellant. Stephanie Lou Haines, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Huntington, West Virginia,
for Appellee.   ON BRIEF: Kasey Warner, United States Attorney,
Huntington, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
SILER, Senior Circuit Judge:

     Jason   Minter   appeals   his     conviction   and   sentence   for

possession with intent to distribute five or more grams of cocaine

base in violation of 21 U.S.C. § 841(a)(1), possession of a firearm

in furtherance of drug trafficking in violation of 18 U.S.C.

§ 924(c)(1)(A)(i), and possession of a firearm by a convicted felon

in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2).              He was

sentenced to 360 months of imprisonment.

     Minter timely appeals, asserting that (1) the district court

erred by denying his Batson challenge, see Batson v. Kentucky, 476

U.S. 79 (1986), raised after the Government removed one of two

African-American venire members, (2) the district court abused its

discretion by admitting a firearms expert’s testimony relating to

fingerprinting   of   guns,   (3)   the   district   court   erroneously

sentenced Minter under mandatory Guidelines, and (4) additional

errors, although not individually meriting reversal, amount to

reversible error when considered cumulatively.         For the reasons

stated hereafter, Minter’s conviction is AFFIRMED, his sentence is

VACATED, and the case is REMANDED to the district court for

resentencing.




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                                 ANALYSIS

                        I.     Batson Challenge

     The   district    court    denied    Minter’s   objection    to    the

Government’s use of a peremptory challenge against Kernus Green, a

73 year-old African-American woman, who was one of two African-

American   venire   members.     “A   finding   by   the   district    court

concerning whether a peremptory challenge was exercised for a

racially discriminatory reason is given great deference by this

court; we review that finding only for clear error.”             Jones v.

Plaster, 57 F.3d 417, 421 (4th Cir. 1995) (citing Hernandez v. New

York, 500 U.S. 352, 364-365 (1991)).

     As this court has observed:

     When making a Batson motion, the defendant must first
     make   a    “prima   facie”    showing   of    purposeful
     discrimination. Once [he] establishes a prima facie case
     of discrimination, the burden shifts to the prosecutor to
     articulate a race-neutral explanation for the challenge.
     If the prosecutor satisfies this requirement, the burden
     shifts back to the defendant to prove that the
     explanation given is a pretext for discrimination. The
     ultimate burden always rests with the opponent of the
     challenge to prove “purposeful discrimination.”

United States v. Grimmond, 137 F.3d 823, 833-34 (4th Cir. 1998)

(internal citations omitted).

     To establish a prima facie case, Minter “must show, based on

all ‘relevant circumstances,’ that an inference of discrimination

has been raised that the prosecutor utilized peremptory challenges

to exclude jurors based on their race.”      United States v. Lane, 866

F.2d 103, 104 (4th Cir. 1989). Minter objected to the Government’s

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decision to strike Ms. Green simply by asserting “[i]t seems to be

only racially based as a challenge.”                    While this objection was

likely “insufficient to trigger an inference of discrimination,”

id., the district court nevertheless requested that the Government

provide its reason for striking Ms. Green.                  When such reasoning is

provided, this court “will not address the question of whether the

defendant established a prima facie showing to satisfy Batson.”

Id. at 105 (citing United States v. Woods, 812 F.2d 1483, 1487 (4th

Cir. 1987)).

       The Government asserted that it struck Ms. Green because “she

didn’t appear to have a good memory,” she “appeared to have a hard

time hearing what the [c]ourt said,” and she “fumbled with [an]

answer.”       The    burden      therefore       shifted      back       to   Minter    to

demonstrate that the Government’s articulated race-neutral reason

was a pretext for discrimination.                See United States v. Joe, 928

F.2d    99,   102    (4th    Cir.    1991)       (“If    the    government         offers

explanations        that    are    facially       neutral,       a    defendant         may

nevertheless     show      purposeful       discrimination           by    proving      the

explanations pretextual.”).

       Minter asserted that the Government’s reasoning “applied to a

lot of the jurors, both ones that they left on and ones that they

struck.”       The    district      court       considered     this       argument      and

concluded:

       I think that reasoning could well apply to a number of
       jurors, but the Government offered a race-neutral reason

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     for it and I think that that’s sufficient. And it was my
     observation when she stood to answer questions that she
     did have some trouble following. Others had equal or
     greater difficulty with some of the questions who were
     not African-American. But given that the Government left
     on Miss Baker, who is African-American, I feel that the
     Government has demonstrated a race-neutral reason for its
     strike of Miss Green. So I deny the Batson challenge to
     the Government’s strike.

     The district court was in a position to observe Ms. Green and,

therefore, to make a determination regarding her ability to hear

questions or follow proceedings.       The voir dire transcripts do not

indicate that the district court clearly erred in its findings

relating to Ms. Green. Furthermore, the district court also was in

a position to observe the Government:

     In the typical peremptory challenge inquiry, the decisive
     question   will   be   whether   counsel’s   race-neutral
     explanation for a peremptory challenge should be
     believed. There will seldom be much evidence bearing on
     that issue, and the best evidence often will be the
     demeanor of the attorney who exercises the challenge. As
     with the state of mind of a juror, evaluation of the
     prosecutor’s state of mind based on demeanor and
     credibility lies peculiarly within a trial judge’s
     province.

Hernandez, 500 U.S. at 365 (quotation omitted).

     The district court noted that other jurors had “equal or

greater difficulty with some of the questions who were not African-

American.”   If a “proffered reason for striking a black panelist

applies just as well to an otherwise-similar nonblack who is

permitted to serve, that is evidence tending to prove purposeful

discrimination to be considered at Batson’s third step.” Miller–El

v. Dretke, ___ U.S. ___, 125 S. Ct. 2317, 2325 (2005).        Minter’s

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claims of discrimination rest heavily upon the district court’s

observation that the Government’s reasoning also could apply to

other jurors who were not African-American.       This observation,

however, without additional evidence, is insufficient to support a

finding that race was a motivating factor in the Government’s

decision to strike Ms. Green.

     Finally, the district court noted that the Government had not

challenged Ms. Baker, the other African-American venire member.   A

district court is “not entitled to allow the presence or absence of

other black jurors to resolve the question of whether [the striking

party] was motivated by race in the exercise of this particular

strike.”   Jones v. Plaster, 57 F.3d at 421 (emphasis added).   The

district court is, however, “entitled to consider the fact that the

final jury included black citizens.”    Id.(emphasis added).    The

district court’s observation of the presence of another African-

American juror is not itself impermissible.   Ms. Baker’s presence

on the jury did not form the sole basis for the district court’s

denial of Minter’s Batson challenge.

     The district court’s denial of Minter’s Batson challenge was

not clearly erroneous, and reversal is not warranted.



                    II.   Fingerprint Testimony

     Minter argues that the district court improperly allowed a

firearms expert to provide fingerprint testimony.       “A district


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court       is   accorded     a    wide    discretion      in    determining       the

admissibility of evidence under the Federal Rules.” United States

v. Abel, 469 U.S. 45, 54 (1984).                Furthermore, “[u]nless there is

a reasonable possibility that the improperly admitted evidence

contributed to the conviction, reversal is not required.”                     United

States v. Jones, 913 F.2d 174, 177 (4th Cir. 1990) (quoting

Schneble v. Florida, 405 U.S. 427, 431 (1972)).

       The district court overruled Minter’s objections to Special

Agent Willard’s testimony.                Willard testified that he had no

knowledge of the gun or bullets being submitted for fingerprint

analysis,        that   he   had   submitted      evidence     for   fingerprinting

approximately fifty times, and that print examiners examined the

items and looked for an identifiable fingerprint.                      He explained

that “sometimes [the latent print examiner] can get a print that

shows    fingerprints        but   there’s      not   enough    on   there   to   show

characteristics where he can take that fingerprint and compare it

to . . . the fingerprint card.”                 As a result, it was “possible”

that    a    firearm    could      have   one    hundred   fingerprints      but    no

identifiable prints.            Agent Willard admitted that he was not a

certified print examiner, had never been to print school, and did

not know how many points of comparison were necessary to make a

print.

        The district court could have reasonably concluded that Agent

Willard’s testimony was based on his own personal participation and


                                           7
observations and was not offered as an expert opinion.                         The

district    court,    therefore,      did   not    abuse   its   discretion     in

admitting Agent Willard’s testimony.



                              III.     Sentencing

      Minter asserts that the district court sentenced him under the

mandatory Sentencing Guidelines.            The Government has not opposed

Minter’s request that his sentence be vacated in light of United

States v. Hughes, 401 F.3d 540, 552 (4th Cir. 2005). Consequently,

we vacate his sentence and remand the case to the district court

for resentencing.



                           IV.     Cumulative Errors

      Minter asserts that a number of issues constitute reversible

error when they are considered collectively.               He alleges that the

district court erred when it refused to suppress gun and drug

evidence,    when    it   allowed    the    case   agent   to    remain   in   the

courtroom, when it admitted Fed. R. Evid. 404(b) evidence, when it

instructed the jury, and when it denied his motion for a new trial.

He   also   argues    that   his    trial    counsel   provided     ineffective

assistance. Although this court has recognized cumulative error as

a basis for reversal, see United States v. Martinez, 277 F.3d 517,

532 (4th Cir. 2002), Minter only suggests the possibility of error

and does not develop these arguments.              Moreover, these “possible


                                        8
errors”   provide   no   basis   for   reversal,   even    when   considered

cumulatively, because he has not shown that they are errors.              We

decline to decide the issue of ineffective assistance             of counsel

and leave it up to Minter to raise in a motion to vacate under 28

U.S.C. § 2255.   See United States v. Richardson, 195 F.3d 192, 198

(4th Cir. 1999).



                                 CONCLUSION

     Minter’s conviction is AFFIRMED, his sentence is VACATED, and

the case is REMANDED to the district court for resentencing.



                                                          AFFIRMED IN PART,
                                                           VACATED IN PART,
                                                               AND REMANDED




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