                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 04-1882
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * District of Minnesota.
Alfred James Clark,                       *
                                          *
             Appellant.                   *
                                     ___________

                               Submitted: December 15, 2004
                                  Filed: May 26, 2005
                                   ___________

Before WOLLMAN, LAY, and COLLOTON, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

       Alfred James Clark appeals from his conviction on charges of being a felon in
possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). He
also appeals from the 180-month sentence imposed by the district court,1 contending
that he should be resentenced in light of Blakely v. Washington, 124 S. Ct. 2531
(2004). We affirm.2

      1
       The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
      2
         Clark filed a pro se brief, making several allegations related to the arguments
set forth by his counsel. It is not our practice to consider pro se briefs filed by a party
                                              I.
       The St. Paul police responded to a series of 911 calls made from Clark’s
apartment. In December 2001, the first call was made by Loretha Cager, the daughter
of Sherry Clark (Sherry), Clark’s wife. Clark had severely beaten Sherry, had pointed
a gun at her head and threatened her, and had fired a round at the floor. Ms. Cager
reported the domestic violence and stated that the man involved might still be armed.
Clark was arrested and held on state charges, but was released on bond when Sherry
bailed him out and signed an affidavit denying that he had assaulted her. In March
2002, Sherry called 911, stating that Clark was again threatening her, despite the no-
contact order in place against him. When the police arrived, they noticed that the
apartment was in disarray but that nobody was home. An hour later, Sherry called
again from the apartment, stating that Clark had destroyed the apartment and
threatened her, and relating that he had fired a gun at her several months prior. Upon
their arrival, Sherry admitted the responding officers and gave them consent to search
the apartment. She also searched for the gun Clark had used to threaten her in
December, which she had previously hidden in the entertainment center. When she
was unable to find it, she led the officers into the master bedroom and directed them
to the attic closet, stating that Clark often hid things in the closet. One of the officers
searched the closet and found a sawed off shotgun and a handgun in a closed duffle
bag. Noticing that neither was the gun she was looking for, Sherry resumed her
search of the entertainment center and found a handgun, which she gave to the
officers.

      Clark was charged in a four-count indictment. Counts one and two charged
him with being a felon in possession of ammunition and a handgun in violation of 18
U.S.C. 922(g)(1). Counts three and four involved his possession of the sawed-off
shotgun. Clark filed several pretrial motions, including a motion to suppress the


who is represented by counsel. United States v. Cole, 262 F.3d 704, 707 n.3 (8th Cir.
2001). In any event, there is no merit in any of the issues Clark raises, and thus we
need not discuss them further.

                                           -2-
evidence found in the attic closet because, he argued, Sherry did not have the
authority to consent to the search. A magistrate judge3 recommended that the motion
to suppress be denied because he found “no indication that [Clark] had exclusive use
of the closet or that Ms. Clark did not have access to, or control over, the space.”
Report and Recommendation of July 1, 2002, at 9. The district court adopted the
recommendation and entered an order denying the motion. D.Ct. Order of Aug. 1,
2002.

       On the first day of trial, jury selection proceeded in usual course, with each
party exercising peremptory strikes. The government struck six men and one woman;
the defendant struck nine women and two men. The empaneled jury was composed
of six men and six women, with a seventh man as the alternate. After the selected
jurors’ names had been read into the record, the remaining members of the jury pool
excused, and the jury given preliminary instructions, defense counsel raised a gender-
based Batson challenge. See Batson v. Kentucky, 476 U.S. 79 (1986). The following
morning, the district court solicited comments from both sides related to the Batson
challenge. It did not require the government to attempt to justify its strikes. Rather,
the court noted the “practical problem” that the issue had not been raised until the
remaining jurors had been dismissed, commented that the jury was in fact balanced,
and proceeded to trial with the then-empaneled jury.

       The jury returned a guilty verdict on counts 1 and 2, but could not reach a
verdict on counts 3 and 4. After a series of communications between the court and
the jurors, the district court dismissed counts 3 and 4 without prejudice and accepted
the partial verdict.




      3
        The Honorable Jonathan Lebedoff, Chief United States Magistrate Judge for
the District of Minnesota.

                                         -3-
       Following numerous delays and several changes of counsel, Clark was
sentenced on April 7, 2004. Applying the United States Sentencing Guidelines
Manual (U.S.S.G.), the district court established Clark’s base offense level as 24 in
light of his prior convictions. U.S.S.G. § 2K2.1(a)(2) (2001). It applied a four-level
enhancement under U.S.S.G. § 2K2.1(b)(5) for possession of a firearm “in connection
with another felony offense,” in this case the assault on Sherry Clark. The district
court also applied a two-level enhancement for obstruction of justice. U.S.S.G.
§ 3C1.1(a). In light of Clark’s criminal history category of V, the resulting guidelines
range was 151 to 188 months. The district court sentenced Clark to 180 months’
imprisonment (120 months on count 1 and 60 months on count 2, to be served
consecutively), three years of supervised release, and a special assessment of $200.

                                            II.
                                            A.
       Clark first argues that the district court improperly rejected his gender-based
Batson challenge to the prosecution’s peremptory strikes. A gender-based
peremptory strike resting on impermissible stereotypes constitutes a violation of the
Constitution’s equal protection clause. J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127, 140
n.11 (1994). A timely raised challenge contending that a strike was based on race or
gender requires the district court to apply a three-part burden-shifting test to
determine if the strike violates the equal protection clause. U.S. Xpress Enters., Inc.
v. J.B. Hunt Transp., Inc., 320 F.3d 809, 812 (8th Cir. 2003). Such a challenge is
untimely, however, if it is not “made at the latest before the venire is dismissed and
before the trial commences.” United States v. Parham, 16 F.3d 844, 847 (8th Cir.
1994).

       Clark’s counsel did not raise the Batson challenge until after the venire had
been dismissed, as noted by the district court’s statement that it “didn’t hear about the
issue until [it] had already let the other jurors go.” Accordingly, the motion in this
case was untimely and Clark has waived the challenge.

                                          -4-
                                             B.
        Clark next contends that he was denied his right to be present at all stages of
his trial, a right that is grounded in the confrontation clause of the Sixth Amendment,
Blackwell v. Brewer, 562 F.2d 596, 599 (8th Cir. 1977), in the due process clause of
the Fifth and Fourteenth Amendments, United States v. Gunter, 631 F.2d 583, 589
(8th Cir. 1980), and in Rule 43 of the Federal Rules of Criminal Procedure. The
defendant bears the burden to show that he was absent during a particular stage of the
trial. United States v. Leisure, 377 F.3d 910, 915 (8th Cir. 2004), vacated and
remanded, 125 S. Ct. 1065 (2005) (remanded for reconsideration of an unrelated
sentencing issue in light of United States v. Booker, 125 S. Ct. 738 (2005)). Clark
was absent during two meetings between the judge and trial counsel in which jury
notes were read and discussed and during an in-chambers conference and brief
hearing regarding a note from an individual juror. Although Clark’s brief implies that
he may also have been absent when the jury reported that it had not reached a
unanimous verdict and when an Allen charge was given, see Allen v. United States,
164 U.S. 492 (1896), the government counters that because Clark was present earlier
the same afternoon in the courtroom and the transcript did not indicate that he had
departed, he was very likely present and had at the very least failed to prove absence.
Govt. Brief at 44.

      Rule 43 provides that the defendant’s presence is required at:

      (1) the initial appearance, the initial arraignment, and the plea;
      (2) every trial stage, including jury impanelment and the return of the
      verdict; and
      (3) sentencing.

Fed. R. Crim. P. 43(a). The defendant’s presence is not required, however, when the
“proceeding involves only a conference or hearing on a question of law.” Fed. R.
Crim. P. 43(b)(3). We have held that Rule 43(b)(3) does not require the defendant’s
presence at a chambers conference held to determine a jury’s request for more

                                         -5-
instructions. United States v. Parker, 836 F.2d 1080, 1087 (8th Cir. 1987); see also
Gunter, 631 F.2d at 589 (characterizing an in-chambers meeting “about the additional
identification evidence which the prosecution sought to introduce” as “a conference
upon a question of law.”); Leisure, 377 F.3d at 915 (finding that discussions of
certain jury questions presented only questions of law). Accordingly, we conclude
that no violation of Rule 43 occurred when Clark was absent from the discussions
concerning the district court’s response to the questions from the jury. Each of these
discussions involved legal questions regarding the manner in which the jury was to
be instructed, and the defendant was ably represented therein by his attorney. See
Parker, 836 F.2d at 1084.

                                           C.
       Clark also appeals from the denial of his pretrial motion to suppress the
firearms that officers retrieved from their search of the attic closet. He argues that his
wife did not have authority to consent to a search of the closet. We review the facts
supporting the district court’s denial of the motion to suppress for clear error and
review its legal conclusions de novo. United States v. Oates, 173 F.3d 651, 656 (8th
Cir. 1999).

       The Fourth Amendment does not prohibit entry into a person’s home when
voluntary consent has been obtained, either from the person whose property is
searched or from someone with common authority over the premises. Illinois v.
Rodriguez, 497 U.S. 177, 181 (1990). In assessing the reasonableness of a search
based on consent, we ask “whether the facts available would have justified a
reasonable officer in the belief that the consenting party had authority over the
premises.” United States v. Czeck, 105 F.3d 1235, 1239 (8th Cir. 1997). The
officer’s conclusion that the consenting individual had authority to consent need not
always be correct, but must always be reasonable. Rodriguez, 497 U.S. at 185-86.

       It was reasonable for the officers to believe that Sherry had authority to consent
to the search of the attic closet. The house belonged to Sherry and Clark, and the
                                            -6-
unlocked closet was attached to the bedroom they shared. See United States v.
Moran, 214 F.3d 950, 951-52 (8th Cir. 2000). The items inside the closet were not
clearly labeled or specifically identified as belonging only to Clark. See id.; Czeck,
105 F.3d at 1239 (noting that everything in the room except the toolbox, which the
officers obtained a warrant to search, appeared to belong to the person consenting).
We agree with the magistrate judge that Sherry’s statement that Clark hid things in
the closet did not establish that she lacked access to the space or that Clark had
exclusive access to it. See Report and Recommendation of July 1, 2002, at 9.

                                         D.
      Finally, Clark argues that the sentencing enhancements that the district court
applied under the sentencing guidelines for obstruction of justice, U.S.S.G.
§ 3C1.1(A), and possession of a firearm while committing a felony assault, U.S.S.G.
§ 2K2.1(b)(1)(A), were based on facts found by the district court in violation of the
Sixth Amendment.

        United States v. Booker, 125 S. Ct. 738 (2005), decided in the wake of Blakely,
124 S. Ct. 2531, established that it is unconstitutional for the district court to impose
enhancements under a mandatory federal sentencing guidelines scheme based on facts
not established by a plea of guilty or a jury verdict. Booker, 125 S. Ct. at 750, 756.
As a remedy for the constitutional error, the Court replaced the mandatory scheme
with an advisory one by excising two statutory provisions. Id. at 764. Because Clark
first raised a Sixth Amendment Booker-related claim on appeal, we review for plain
error. Id. at 769. We examine the error using the four-part test of United States v.
Olano, 507 U.S. 725, 732 (1993), as described in United States v. Pirani, No. 03-2871
(8th Cir. Apr. 29, 2005) (en banc). We ask whether there is (1) error (2) that is plain
and (3) that affects substantial rights such that (4) “the fairness, integrity, or public
reputation of judicial proceedings” is affected. Olano, 507 U.S. at 732. We have
determined that the constitutional error, in light of Booker, “arose from the
combination of the enhancement and a mandatory Guidelines regime.” Pirani, slip
op. at 9 (emphasis in original). Such error is clearly present here, but it is a closer
                                           -7-
question whether the error affected Clark’s substantial rights. Because the Supreme
Court chose to excise the error by “retaining enhancements based upon judge-found
facts but applying them in an advisory guidelines regime,” id., we will find that a
defendant’s substantial rights are affected if he can “show a ‘reasonable probability,’
based on the appellate record as a whole, that but for the error he would have received
a more favorable sentence.” Id. at 11.

       Clark was sentenced to 180 months’ imprisonment, which falls within the
applicable range of 151 to 188 months. The district court stated that it agreed with
the calculation in the presentence investigation report,4 and it did not indicate a desire
to further reduce the sentence below the applicable guidelines range. Sentencing Tr.
at 37. The district court instead stated that Clark “represents a substantial danger to
the community” and concluded that “a sentence toward the bottom end of this
guideline range is just not going to adequately take into account the punishment that
is necessary for him, and the protection of the community when he gets out.” Id. at
40. Accordingly, because the record as a whole does not establish a reasonable
probability that Clark would have received a more favorable sentence under an
advisory guidelines scheme, he has not met his burden of demonstrating prejudicial
error under Olano, and thus he is not entitled to be resentenced. See Pirani, slip op.
at 13.

      The conviction and sentence are affirmed.
                      ______________________________




      4
        The district court applied a two-level enhancement because it found that Clark
had obstructed justice by urging his wife to sign a false affidavit while he was in
federal custody prior to trial. It also applied a four-level enhancement because it
found that Clark possessed and used the firearm while committing terroristic threats
and second degree assault. The total offense level was therefore 30, with a criminal
history category of V, resulting in a sentencing range of 151 to 188 months.
                                           -8-
