                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT            FILED
                          ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                 No. 04-13265                  OCTOBER 20, 2005
                             Non-Argument Calendar             THOMAS K. KAHN
                                                                   CLERK
                           ________________________

                      D. C. Docket No. 03-80095-CR-DTKH

UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

      versus

HERON STEPHERSON,

                                                            Defendant-Appellant.


                           ________________________

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

                                (October 20, 2005)


Before TJOFLAT, DUBINA and PRYOR, Circuit Judges.

PER CURIAM:

      Heron Stepherson appeals his convictions and sentence for possession of

ammunition by a convicted felon and possession with the intent to distribute
cocaine base. See 18 U.S.C. §§ 922(g)(1), 924(a)(2), 841(a) & 841 (b)(1)(C). We

affirm Stepherson’s convictions because the district court did not clearly err when

it denied Stepherson’s motion to suppress and did not abuse its discretion when it

admitted testimony from the grand jury proceedings. We also affirm Stepherson’s

sentence because the district court did not clearly err when it applied the

enhancement for possession of ammunition in connection with another felony and

did not plainly err under United States v. Booker, 543 U.S. __, 125 S. Ct. 738

(2005).

                                I. BACKGROUND

      Stepherson was indicted by a grand jury for possession of ammunition by a

convicted felon and possession with intent to distribute crack cocaine. Stepherson

filed a motion to suppress evidence relating to an interrogation with the police.

Based on the recommendation of a magistrate judge, the district court denied the

motion to suppress. Stepherson was convicted of both counts by a jury, and the

district court sentenced him to 78 months’ imprisonment followed by three years’

supervised release.

                                 II. DISCUSSION

      Stepherson makes four arguments on appeal. He first argues that the district

court erred in when it denied his motion to suppress statements he made during a

custodial interrogation because he invoked his right to silence. Second, Stepherson

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argues that a the grand jury testimony of Sheanitha Salmon should not have been

admitted as substantive evidence at trial. Third, Stepherson contends that the

district court erred when it applied an enhancement for possession of ammunition

in connection with another felony offense. Finally, Stepherson argues that the

district court violated Booker when it enhanced his sentence under a mandatory

guideline system based on findings made by the court but neither admitted by

Stepherson nor found by the jury. We address each argument in turn.

                                A. Motion to Suppress

      Because “rulings on motions to suppress involve mixed questions of fact and

law, the district court’s factual findings are reviewed under the clearly erroneous

standard, while that court’s application of the law is subject to de novo review.”

United States v. Ramos, 12 F.3d 1019, 1022 (11th Cir. 1994) (citation omitted).

“When considering a ruling on a motion to suppress, the court must construe all

facts in the light most favorable to the party prevailing in the district court.”

United States v. Mikell, 102 F.3d 470, 474 (11th Cir. 1996). The question we must

consider is whether the district court clearly erred when it found that Stepherson

did not unambiguously and unequivocally invoke his right to silence.

      The government “may not use statements, whether exculpatory or

inculpatory, stemming from custodial interrogation of the defendant unless it

demonstrates the use of procedural safeguards effective to secure the privilege

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against self-incrimination.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct.

1602, 1612 (1966). After an accused has been informed of his rights under

Miranda, it is his burden to inform his interrogator that he wishes to invoke his

right to remain silent. United States v. Alegria, 721 F.2d 758, 761 (11th Cir.

1983). Officers do not have a duty to ask clarifying questions when an accused

makes an equivocal or ambiguous invocation of his Miranda rights. If “the

suspect’s statement is not an unambiguous or unequivocal request for [silence], the

officers have no obligation to stop questioning him.” Davis v. United States, 512

U.S. 452, 461-62, 114 S. Ct. 2350, 2356 (1994); see also Mikell, 102 F.3d at 477;

Coleman v. Singletary, 30 F.3d 1420, 1424 (11th Cir. 1994). This determination is

an objective one. See Davis, 512 U.S. at 458-59, 114 S. Ct. at 2355.

      Stepherson invoked his right to silence when he said “I don’t want wanna

talk no more.” After Stepherson made this statement, the detective immediately

responded, “Ok. That’s completely within your rights.” The record shows that

Stepherson then immediately engaged the officer in further conversation. That

Stepherson continued to talk to the officers after stating that he did not want to talk

leaves us with serious doubts that he effectively invoked his right to remain silent.

Because we cannot objectively say that Stepherson’s statement, followed by his

initiation of further conversation, reflects an unambiguous and unequivocal

invocation of his right to silence that would be clear to an objective police officer,

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Coleman, 30 F.3d at 1424, the district court did not clearly err.

                              B. Grand Jury Testimony

      Stepherson argues that the district court abused its discretion when it

permitted the government to read into evidence at trial Salmon’s testimony to the

grand jury. He contends that his constitutional right of confrontation under

Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), was violated. We

review the admission of testimony by a district court for abuse of discretion.

United States v. Day, 405 F.3d 1293, 1298 n.7 (11th Cir. 2005).

      The Confrontation Clause provides that, “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against him.”

U.S. Const. amend. VI. “The Confrontation Clause . . . forbids the introduction of

hearsay evidence against criminal defendants unless the offered hearsay falls into a

firmly rooted hearsay exception or the hearsay statement at issue carries a

particularized guarantee of trustworthiness.” United States v. Brown, 299 F.3d

1252, 1258 (11th Cir. 2002) (quotations omitted), vacated, 538 U.S. 1010 (2003),

opinion reinstated by 342 F.3d 1245, 1246 (11th Cir. 2003), cert. denied, 125 S.Ct.

37 (2004). In Crawford, the Supreme Court held that prior testimony may be

admitted only if the declarant is unavailable and the defendant had an opportunity

to cross-examine the declarant. Crawford, 541 U.S. at 68, 124 S. Ct. at 1374.

      The problem for Stepherson is that in Crawford the Supreme Court

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explained that the use of prior testimony does not violate that Confrontation Clause

when the declarant is available and appears for cross-examination at trial:

      [W]e reiterate that, when the declarant appears for cross-examination
      at trial, the Confrontation Clause places no constraints at all on the use
      of his prior testimonial statements. It is therefore irrelevant that the
      reliability of some out-of-court statements cannot be replicated, even
      if the declarant testifies to the same matters in court. The Clause does
      not bar admission of a statement so long as the declarant is present at
      trial to defend or explain it. (The Clause also does not bar the use of
      testimonial statements for purposes other than establishing the truth of
      the matter asserted. . . .)

Id. at 59 n.9, 124 S. Ct. at 1369 n.9 (citations and quotations omitted).

      Stepherson’s claim that the grand jury testimony should not have been

admitted is without merit. The district court did not abuse its discretion under the

Confrontation Clause because Salmon was cross-examined at trial. See id.

Stepherson’s argument about the unreliability of Salmon’s statement is without

merit because Crawford leaves the issue of credibility to the jury. See id. The

district court did not abuse its discretion when it admitted the testimony.

                             C. U.S.S.G. § 2K2.1(b)(5)

      A challenge to the application of the sentencing guideline is a mixed

question of law and fact. United States v. Ferreira, 275 F.3d 1020, 1024 (11th Cir.

2001). “This Court reviews the district court’s findings of fact for clear error and

its application of the sentencing guidelines to those facts de novo.” United States

v. Anderson, 326 F.3d 1319, 1326 (11th Cir. 2003). Section 2K2.1 of the

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Sentencing Guidelines provides for a four-level increase “[i]f the defendant used or

possessed any firearm or ammunition in connection with another felony offense.”

U.S.S.G. § 2K2.1(b)(5).

       Stepherson argues that the district court clearly erred because the testimony

of Salmon was inadmissible and unreliable. As explained above, the district court

properly admitted Salmon’s testimony to the grand jury. Because Salmon testified

that (1) she lent her car to Stepherson, (2) Stepherson told her that he had

possessed the bullets that were found in her car, (3) Stepherson apologized about

the drugs found in her car, and (4) Stepherson told her that he sold drugs, there was

sufficient evidence to prove that Stepherson possessed the ammunition in

connection with drug trafficking. The district court did not err when it applied the

enhancement.

                                    D. Booker Error

       Stepherson argues for the first time on appeal that the district court erred

when it enhanced his sentence under a mandatory guideline system. Because

Stepherson did not raise this issue in the district court, we review for plain error.

See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). “An

appellate court may not correct an error the defendant failed to raise in the district

court unless there is: (1) error, (2) that is plain, and (3) that affects substantial

rights.” Id. (quotation and citation omitted). “If all three conditions are met, an

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appellate court may then exercise its discretion to notice a forfeited error, but only

if (4) the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id.

       After Booker, there are two kinds of sentencing errors. As to the first,

constitutional error, “the Sixth Amendment right to trial by jury is violated where

under a mandatory guidelines system a sentence is increased because of an

enhancement based on facts found by the judge that were neither admitted by the

defendant nor found by the jury.” United States v. Rodriguez, 398 F.3d 1291,

1297 (11th Cir. 2005). As to the second, statutory error, “Booker error exists when

the district court misapplies the Guidelines by considering them as binding as

opposed to advisory.” United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir.

2005). Stepherson raises both types of error for the first time on appeal.

       As to the constitutional error, the first prong of the plain error test is satisfied

because the district court enhanced Stepherson’s sentence, under a mandatory

guideline system, as a result of findings made by the judge that were neither

admitted by Stepherson nor found by the jury. The second prong of the plain error

test is also satisfied because, although the error was not “plain” at the time of

sentencing, it is now plain under Booker. See Rodriguez, 398 F.3d at 1299.

       Stepherson fails to satisfy the third prong of the plain error test. The third

prong “requires that an error have affect[ed] substantial rights, which almost

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always requires that the error must have affected the outcome of the district court

proceedings.” Id. (quotations and citations omitted). “It is the defendant rather

than the [g]overnment who bears the burden of persuasion with respect to

prejudice.” United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1778

(1993). “In applying the third prong, we ask whether there is a reasonable

probability of a different result if the guidelines had been applied in an advisory

instead of binding fashion by the sentencing judge in this case.” Rodriguez, 398

F.3d at 1301.

      Stepherson has not established that he would have received a more lenient

sentence had the district court considered the Guidelines advisory as opposed to

mandatory. The district court sentenced Stepherson at the highest point in the

guidelines range. Even if Stepherson’s sentence had been at the lowest point in the

guideline range, the likelihood of a different result would be speculative without a

clear statement from the district court that, but for the mandatory nature of the

guidelines, the court would have imposed a lighter sentence. See id. The district

court specifically addressed the factors in section 3553(a) of Title 18 of the United

States Code and imposed the highest sentence permitted by the Guidelines.

Because it is unclear whether the district court would have imposed a different

sentence if it had applied the Guidelines in an advisory fashion, Stepherson has not

established a reasonable probability that the result of his sentencing would have

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been different but for the Booker error. See id. We need not apply the fourth

prong of the plain error test.

      Stepherson also cannot establish that the district court plainly erred when it

considered the Guidelines mandatory. Although Stepherson met the first two

prongs of the plain error test regarding the statutory error because “it was Booker

[statutory] error for the district court to sentence [the defendant] under a mandatory

Guidelines scheme, even in the absence of a Sixth Amendment enhancement

violation,” Shelton, 400 F.3d at 1330-31, as discussed above, Stepherson cannot

meet the third element of the plain error test because nothing in the record shows

that the district court would have given him a lower sentence had the court applied

the Guidelines in an advisory fashion. As a result, Stepherson has not

demonstrated that his substantial rights were affected by the Booker statutory error,

and we need not apply the fourth prong of the plain error test.

                                 III. CONCLUSION

      For the foregoing reasons, Stepherson’s convictions and sentence are

AFFIRMED.




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