                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                 May 21, 2008
                                No. 07-12997                   THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                       D. C. Docket No. 07-20065-CR-PCH

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                      versus

PHILLIP TAYLOR,

                                                             Defendant-Appellant.

                          ________________________

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

                                  (May 21, 2008)

Before DUBINA, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

      Phillip Taylor appeals his convictions and sentences for conspiracy to import

and possess with intent to distribute 100 kilograms or more of marijuana, and
importation and possession with intent to distribute 100 kilograms or more of

marijuana. After a thorough review of the record, we affirm Taylor’s convictions

and sentences.

                                         I.

      Taylor was indicted along with four others for conspiracy to import 100

kilograms or more of marijuana, in violation of 21 U.S.C. §§ 952 and 963 (count

1); importation of 100 kilograms or more of marijuana, in violation of 21 U.S.C.

§ 952 (count 2); conspiracy to possess with intent to distribute 100 kilograms or

more of marijuana, in violation of 21 U.S.C. § 846 (count 3); and possession with

intent to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C.

§ 841 (count 4).

      At trial, two of Taylor’s codefendants testified for the government pursuant

to plea agreements. Delton Cash testified that he knew Taylor and had bought

drugs from Taylor in the past. Defense counsel objected to this testimony as

improper Fed. R. Evid. (“Rule”) 404(b) evidence and moved for a mistrial and a

limiting instruction. The government responded that the conduct was part of the

charged conspiracy. Although the court concluded that the evidence was not

improper, as it explained the relationship between Cash and Taylor and thus was

inextricably intertwined, the court had the answer stricken from the record and



                                          2
instructed the jury to disregard it. The court, however, denied the motion for a

mistrial.

       Cash then explained that he had been recruited to pick-up drugs with two

others and that on the evening of the pick-up, he spoke with Taylor by cell phone

several times and followed Taylor’s instructions to pick up the drugs. When

questioned about the amount of money found on him when he was arrested, Cash

stated that he only had a small amount of money from buying drugs from Taylor.

The court instructed the jury to disregard the statement.

       In his testimony, Freeman Robins stated that he was involved in transporting

the drugs by boat from the Bahamas to Miami. While on the boat, he heard

Saunders on the phone with Taylor discussing the delivery.

       The government submitted certified copies of the phone records. The

records showed several calls between Cash and Taylor and between Cash and the

other defendants on the night of the arrests. Defense counsel objected under the

Confrontation Clause and Crawford, citing United States v. Wittig, 2005 WL

1227790 (D. Kan. 2005), in support of his argument. The court overruled the

objection, finding that the records were not testimonial under Crawford, were

normal business records, and had not been kept in anticipation of litigation.

       The jury convicted Taylor of all four counts, further finding that the amount



                                          3
of drugs was at least 300 kilograms.

       In determining Taylor’s sentencing guidelines range, the probation officer

listed Taylor’s criminal history, which included numerous convictions for driving

without a valid license or with a suspended license. Taylor also had probation with

adjudication withheld for battery on a law enforcement officer, obstruction, and

carrying a concealed weapon. Although not all of these charges and convictions

resulted in criminal history points, Taylor’s criminal history category was IV and

the resulting guidelines range was 121 to 151 months’ imprisonment.1 Taylor

objected to inter alia, his criminal history category, asserting that the category

overstated the seriousness of his criminal record.

       At sentencing, the court noted that the PSI showed Taylor repeatedly flouted

the law and his conduct was not limited to driver’s license violations. The court

considered the overall impact of criminal activity and concluded there was no basis

to establish the category over-represented Taylor’s criminal record. The court

sentenced Taylor to 96 months’ imprisonment. Taylor now appeals, challenging

(1) the admission of character evidence; (2) the admission of the phone records;

and (3) his sentence.



       1
          The probation officer determined the offense level to be 29. Based on issues not relevant
to this appeal, the district court determined the level to be 26, resulting in a lower guidelines range
of 92 to 115 months’ imprisonment.

                                                  4
                                            II.

         A. Character Evidence

         Taylor argues that Cash’s testimony regarding prior drug sales was improper

character evidence that should not have been admitted because the evidence was

not inextricably intertwined, was inadmissible under Rule 404(b), and was

prejudicial.

         We review a district court’s decision to allow the admissibility of evidence

for abuse of discretion. United States v. Hands, 184 F.3d 1322, 1326 (11th Cir.

1999).

         We conclude that there was no error or abuse of discretion. Cash gave a

spontaneous statement that he purchased drugs from Taylor on previous occasions.

Taylor requested, and received, a limiting instruction; the court had the statement

stricken from the record and issued a curative instruction to the jury to disregard

the testimony as it was not relevant to the charges against Taylor. This court

presumes the jury follows the court’s instructions. United States v. Shenberg, 89

F.3d 1461, 1472 (11th Cir. 1996).

         B. Phone Records

         Taylor next argues that the court erred by concluding the phone records were

not testimonial evidence. In support of his argument, he cites Wittig, 2005 WL



                                            5
1227790 (holding that business records certified under Fed. R. Evid. 902(11) were

testimonial).

      The question of whether hearsay statements are “testimonial” for purposes

of the Confrontation Clause is a question of law which we review de novo. United

States v. Underwood, 446 F.3d 1340, 1345 (11th Cir.), cert. denied, 127 S.Ct. 225

(2006). We review for harmless error alleged violations of the Confrontation

Clause. United States v. Hunerlach, 197 F.3d 1059, 1067 (11th Cir. 1999). If a

defendant fails to timely object to an alleged Confrontation Clause violation, we

review the claim for plain error. United States v. Arbolaez, 450 F.3d 1283, 1291

(11th Cir. 2006).

      To preserve an argument on appeal, a defendant need only raise the issue “in

such clear and simple language that the trial court may not misunderstand it.”

United States v. Zinn, 321 F.3d 1084, 1087 (11th Cir. 2003) (citation omitted).

Only “if [the defendant’s] point is so obscurely hinted at that the trial court quite

excusably may fail to grasp it” will this court conclude that the objection was not

properly preserved. Id. at 1087-88. Thus, this court does not require an

“exhaustive explanation from the defendant justifying his objection in order to

preserve it, but simply a statement clear enough to let the district court know upon

what legal basis the objection rests.” See id.



                                           6
       Here, Taylor’s objection before the district court raised Confrontation

Clause violations and Crawford. Although he did not challenge the authenticity of

the certificates, he did cite Wittig, which addressed the certification under Rule

902(11) and concluded that such evidence was testimonial under Crawford. On

appeal, Taylor raises only the certification issue. We need not address whether the

argument was preserved because, if Taylor is not entitled to relief under de novo

review, he would not meet the more stringent requirements of plain error.2

       In Crawford, the Supreme Court held that the Sixth Amendment’s

Confrontation Clause bars the admission of out-of-court testimonial statements

offered for the truth of the matter asserted, unless the declarant is unavailable and

the defendant had a prior opportunity for cross-examination. 541 U.S. at 59 n.9.

The Supreme Court, however, declined to “spell out a comprehensive definition of

‘testimonial.’” Id. at 68. The distinction is significant because non-testimonial

hearsay is not subject to the Confrontation Clause. See Davis v. Washington, 547

U.S. 813, 126 S.Ct. 2266, 2273-78, 165 L.Ed.2d 224 (2006). The Court did

describe the minimum coverage of “testimonial” status, holding that: “it applies at

a minimum to prior testimony at a preliminary hearing, before a grand jury or at a

former trial; and to police interrogations.” Id. at 68. Without adopting a particular

       2
        Moreover, this circuit has not addressed business records and certification under Crawford.
Where neither the Supreme Court nor this court has addressed an issue, there can be no plain error.
United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).

                                                7
formulation of the core class of “testimonial” statements, the Court did mention

three: (1) “ex parte in-court testimony or its functional equivalent-that is, material

such as affidavits, custodial examinations, prior testimony that the defendant was

unable to cross-examine, or similar pretrial statements that declarants would

reasonably expect to be used prosecutorially”, 541 U.S. at 51; (2) “extrajudicial

statements . . . contained in formalized testimonial materials, such as affidavits,

depositions, prior testimony, or confessions” id.; and (3) “statements that were

made under circumstances which would lead an objective witness reasonably to

believe that the statement would be available for use at a later trial.” Id. The

common factor in these examples is that all involve statements made under

circumstances which would lead the declarant to believe that the statement would

be available for use at a later trial. United States v. Underwood, 446 F.3d 1340,

1346-1347 (11th Cir. 2006) (citing United States v. Saget, 377 F.3d 223, 229 (2nd

Cir. 2004)). Notably, in Crawford, the Supreme Court suggested that business

records were not, “by their nature,” testimonial. Crawford, 541 U.S. at 51.

      Here, the phone records were not prepared in anticipation of litigation and,

as business records, they are non-testimonial and not subject to the Confrontation

Clause. Even assuming arguendo that the records were a testimonial statement,

their admission was harmless error. See United States v. Edwards, 211 F.3d 1355,



                                           8
1359 (11th Cir. 2000) (stating that the harmless error doctrine applies to violations

of the Confrontation Clause). The records identified several calls between the

various defendants on the night of the drug delivery. But both Cash and Robins

testified that there had been calls between Taylor and the others that night. Thus,

the records were cumulative, and any error in their admission was harmless.

      C. Sentencing

      Finally, Taylor asserts that his criminal history category over-represented his

criminal activity and he contends that a downward departure was warranted, given

that all of his offenses involving driver’s license violations occurred before he

reached the “young age of twenty-seven.” 3

       “A district court’s refusal to depart downward from the sentencing guideline

range is not reviewable on appeal, unless the district court denied the departure

because it erroneously believed that it had no authority to depart downward.”

United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005). Here, there is

no indication that the district court erroneously believed that it lacked the authority

to depart downward. Thus, we lack jurisdiction to consider this argument.

      To the extent that Taylor requested a downward variance, we review the

final sentence imposed by the district court for reasonableness. Winingear, 422

F.3d at 1244. Unreasonableness may be procedural, when the court’s procedure
      3
          According to the PSI, Taylor was born in 1974. He was 32 at the time of sentencing.

                                               9
does not follow Booker’s4 requirements, or substantive. See Gall v. United States,

552 U.S. ----, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007); United States v. Hunt,

459 F.3d 1180, 1182 n.3 (11th Cir. 2006).

      The Supreme Court has explained that a sentence may be procedurally

unreasonable if the district court improperly calculates the guideline imprisonment

range, treats the Guidelines as mandatory, fails to consider the appropriate

statutory factors, bases the sentence on clearly erroneous facts, or fails to

adequately explain its reasoning. Gall, 128 S.Ct. at 597. The Court also has

explained that the substantive reasonableness of a sentence is reviewed under an

abuse-of-discretion standard. Id. Review for substantive reasonableness under this

standard involves inquiring whether the factors in 18 U.S.C. § 3553(a) support the

sentence in question. Id. at 600.

      Pursuant to § 3553(a), the sentencing court shall impose a sentence

“sufficient, but not greater than necessary” to comply with the purposes of

sentencing listed in § 3553(a)(2), namely reflecting the seriousness of the offense,

promoting respect for the law, providing just punishment for the offense, deterring

criminal conduct, protecting the public from future criminal conduct by the

defendant, and providing the defendant with needed educational or vocational

training or medical care. See 18 U.S.C. § 3553(a)(2). The statute also instructs the
      4
          United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

                                              10
sentencing court to consider certain factors, including the nature and circumstances

of the offense, the history and characteristics of the defendant, the guideline

imprisonment range, and the need to avoid unwarranted sentencing disparities. See

18 U.S.C. § 3553(a)(1), (4), and (6).

      The burden of establishing that the sentence is unreasonable in light of the

record and the § 3553(a) factors lies with Taylor. United States v. Talley, 431 F.3d

784, 788 (11th Cir. 2005).

      With regard to the procedural reasonableness of Taylor’s sentences, the

district court did not err in its sentencing procedure. Taylor does not dispute the

PSI calculations and he did not explicitly move for a downward departure pursuant

to U.S.S.G. § 4A1.3. Moreover, the record demonstrates that the district court

expressly stated that it considered the sentencing factors set forth in § 3553(a),

along with the parties’ arguments, and sufficiently explained its reasons for

imposing the sentences.

      Taylor also has not established that his sentences are substantively

unreasonable. The district court considered Taylor’s criminal history and the need

to deter and protect the public in determining reasonable sentences.

                                          III.

    For the foregoing reasons, we AFFIRM Taylor’s convictions and sentences.



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