                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               MAY 09, 2007
                               No. 06-14117                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                       D. C. Docket No. 05-00281-CR-4

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

ERIC RONDELL GABE,
a.k.a. Derrick Minor,

                                                            Defendant-Appellant.


                         ________________________

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

                                 (May 9, 2007)

Before DUBINA, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

     Eric Rondell Gabe appeals his convictions for possession of a firearm by a
felon, possession of a controlled substance, and possession of a firearm in relation

to a drug trafficking crime. Gabe argues that the district court erred when, during

jury selection, it sustained the objection by the government under Batson v.

Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), and seated jurors Gabe had

challenged. We affirm.

                                I. BACKGROUND

      A federal grand jury indicted Gabe for possession of a firearm in violation of

18 U.S.C. sections 922(g) and 924(e), possession of a controlled substance in

violation of 21 U.S.C. section 844, and carrying a firearm in relation to a drug

trafficking crime in violation of 18 U.S.C. section 924(c). Gabe pleaded not guilty.

At trial, Gabe used all ten of his peremptory challenges to remove white members

of the venire. The government raised a Batson objection. Defense counsel

provided allegedly race-neutral reasons for each of the challenges, including prior

jury service, business ownership, familiarity with officers of the court, a carjacking

encounter, and military experience.

      The district court questioned defense counsel regarding the basis of the

peremptory challenges, including the disparity between defense counsel’s use of

challenges for white venire members with prior jury service, but not of black

venire members with prior jury service. The district court determined that, at least



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as to six of the jurors, defense counsel had used his peremptory challenges in a

manner that purposefully discriminated against white members of the venire. To

remedy the discrimination, the trial court ordered that six of the ten struck jurors be

seated on the jury. No objection was made to that remedy until this appeal.

                            II. STANDARD OF REVIEW

        “We review the district court’s resolution of a Batson challenge under the

clearly erroneous standard.” Cent. Ala. Fair Hous. Ctr., Inc. v. Lowder Realty Co.,

Inc., 236 F.3d 629, 635 (11th Cir. 2000). “A district court’s findings regarding

whether a peremptory strike was exercised for a discriminatory reason largely

involve credibility determinations and are therefore entitled to great deference.”

United States v. Tokars, 95 F.3d 1520, 1530 (11th Cir. 1996). When an issue is

raised for the first time on appeal, we review for plain error. United States v.

Rahim, 431 F.3d 753, 756 (11th Cir. 2005).

                                  III. DISCUSSION

        Gabe raises two issues. First, he argues that the district court erred by

sustaining the Batson objection of the government. Second, he maintains that the

district court erred when it seated the challenged jurors. We address each issue in

turn.

A. The District Court Did Not Clearly Err When It Sustained the Batson Objection
                               of the Government.

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      Criminal defendants are prohibited from using peremptory challenges to

engage in purposeful discrimination on the basis of race. Georgia v. McCollum,

505 U.S. 42, 59, 112 S. Ct. 2348, 2359 (1992). There are three steps in the review

of a defendant’s peremptory challenges under Batson v. Kentucky. See

McCollum, 505 U.S. at 59, 112 S. Ct at 2359. First, the government must establish

a prima facie case of unlawful discrimination. Batson, 476 U.S. at 93-97, 106 S.

Ct. at 1721-23. Second, when a prima facie case has been established, the burden

shifts to the defendant to provide a race-neutral basis for the challenges. Id. at 94-

98, 106 S. Ct. at 1721-24. Third, the district court determines whether, under the

totality of the circumstances, purposeful discrimination occurred. Id. at 98, 106 S.

Ct. at 1724.

      Gabe does not dispute that the government established a prima facie case,

nor do the parties dispute that Gabe provided allegedly neutral bases for the

challenges. The only issue is whether the district court erred in its finding of

purposeful discrimination.

      The district court did not clearly err when it determined that several of

Gabe’s race-neutral explanations were not credible. The district court, for

example, found that some of the challenges were patently discriminatory where

members of both races had prior jury experience but only members of one race



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were challenged. We have upheld a finding of discrimination where the party

purportedly challenged a black venire member because she was from an urban area

but did not challenge white venire members who were from urban areas. United

States v. Stewart, 65 F.3d 918, 926 (11th Cir. 1995). We have also held, in the

context of a defendant’s challenge to the use of peremptory challenges by the

government, that “failing to strike a white juror who shares some traits with a

struck black juror does not itself automatically prove the existence of

discrimination,” but noted that “where there are two permissible views of the

evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id.

  B. It was Not Plain Error for the District Court to Seat the Challenged Jurors.

      Gabe argues for the first time on appeal that the remedy of seating the

challenged jurors was error. Gabe fails to explain how it was error, much less

plain error, for the district court to remedy the Batson violation by seating the

unlawfully challenged jurors. This argument fails.

                                IV. CONCLUSION

      Gabe’s convictions are

      AFFIRMED.




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