                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________          FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-12203         ELEVENTH CIRCUIT
                                                        APRIL 1, 2010
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                          CLERK

                      D. C. Docket No. 08-20704-CR-UU

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

LUIS FERNANDEZ,

                                                            Defendant-Appellant.


                         ________________________

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

                                (April 1, 2010)

Before HULL, MARCUS and FAY, Circuit Judges.

PER CURIAM:

     Luis Fernandez appeals his convictions for carjacking, hostage-taking, using
or carrying a firearm during a crime of violence, and knowingly possessing a

stolen firearm. After review, we affirm.

                                    I. BACKGROUND

A.     Indictment

       In August 2008, a federal grand jury issued a six-count superseding

indictment against Defendant Fernandez and his co-defendant, Miguel Vasquez-

Febles. Count One (carjacking) charged that the defendants took from another by

force, violence, and intimidation a 2007 Nissan Armada automobile, in violation of

18 U.S.C. § 2119. Count Two (hostage-taking) charged that the defendants seized

and detained, and threatened to kill, injure, and continue to detain a person to

compel a third person to do an act, in violation of 18 U.S.C. § 1203(a). Count

Three (a second carjacking) charged that the defendants took from another by

force, violence, and intimidation a 2006 Mercedes S500 automobile, in violation of

18 U.S.C. § 2119. Count Four charged that the defendants used and carried a

firearm during the two carjackings and hostage-taking alleged in Counts One, Two,

and Three, and knowingly possessed a firearm in furtherance of those crimes, in

violation of 18 U.S.C. § 924(c)(1)(A). Each of these four counts charged that these

criminal acts took place on or about February 21, 2007.1


       1
       The defendants committed the first carjacking, then went to the first carjacking victim’s
home, where they committed the hostage-taking offense and carjacked the second vehicle, by

                                                2
       Count Five charged co-defendant Vasquez-Febles with possessing a stolen

Beretta 9mm firearm (the “stolen Beretta”) on or about February 21, 2007, the day

of the other crimes, in violation of 18 U.S.C. § 922(j). Count Six charged

Defendant Fernandez with possessing the stolen Beretta between the approximate

dates of February 21, 2007 and August 23, 2007, in violation of 18 U.S.C. § 922(j).

The stolen Beretta in Counts Five and Six was taken from the victims during the

hostage-taking. The firearm charged in Count Four and used in the carjackings is a

different firearm.

B.     Defendant’s Motion to Exclude Evidence of Stash-House Robbery
       Conspiracy

       The government filed a Rule 404(b)2 notice of its intention to introduce

evidence of a separate armed robbery of a cocaine stash house on August 23, 2007,

with which Defendant Fernandez and others were charged in another case.

According to the government, the carjacking victims’ stolen Beretta was involved

in that robbery conspiracy. The government’s notice argued that the stash-house

incident was “actually inextricably intertwined . . . [with] the charged offense

conduct,” but stated that the government filed the Rule 404(b) notice “in an




which the defendants left the home.
       2
        See Fed. R. Evid. 404(b) (requiring the government, in a criminal case, to “provide
reasonable notice” of evidence of “other crimes, wrongs, or acts” it intends to use at trial).

                                                 3
abundance of caution.”

      Fernandez filed a motion in limine to exclude evidence of the stash-house

robbery conspiracy, arguing that the evidence was neither inextricably intertwined

with the charged conduct in the present case nor admissible under Rule 404(b).

The district court denied Fernandez’s motion.

C.    Fernandez’s Motion to Sever Count Six

      Defendant Fernandez moved to sever Count Six or, alternatively, to amend

the indictment to limit Count Six to conduct occurring on February 21, 2007.

Fernandez argued that Count Six as drafted (i.e., charging possession of the stolen

Beretta between February 21, 2007 and August 23, 2007) was not properly joined

with the remaining counts because any possession of the stolen Beretta on August

23, 2007 was not part of the same course of conduct as the events alleged to have

occurred on February 21, 2007.

      The magistrate judge denied Fernandez’s severance motion. The magistrate

judge determined that Count Six was properly joined in the indictment and, in any

event, Fernandez could not make a showing of compelling prejudice necessary for

severance because the evidence surrounding the stolen Beretta’s recovery was a

“crucial piece of evidence” linking Fernandez to the February 21, 2007 offenses.

The district court affirmed the magistrate judge’s order.



                                          4
D.    Trial Evidence of Carjackings and Hostage-Taking

      At trial, the government called Yaroslavi Sierra, one of the victims. On

February 21, 2007, Sierra was a student who lived with her husband Maykel Segui

and her 23-month-old son Maykel, Jr. That day, Sierra left home around 6:15 a.m.

to drive to school. While she was stopped at an intersection, a car stopped in front

of hers, and a man with a gun got out. He knocked on the window and told her that

if she did not open the door he would kill her. The man with the gun entered

Sierra’s car, a 2007 Nissan Armada, and put Sierra into the back seat. Sierra

identified the man with the gun as Defendant Fernandez.

      Another man got out of the car in front of Sierra’s and got into the driver’s

seat of Sierra’s car. Sierra identified the second man as co-defendant Vasquez-

Febles.

      Defendants Fernandez and Vasquez-Febles picked up two more men and

drove Sierra back to her home. The men put on black masks and gloves and

entered her house. Defendant Fernandez pointed the gun at Sierra and took her to

the master bedroom. In the bedroom, Sierra saw the men pointing guns at her

husband while he pointed a gun at them. Sierra’s son was on the bed. Her

husband Segui put his gun down after the men threatened to kill him, Sierra, and

their son. The men took Segui’s gun (the Beretta) and grabbed Segui. Then Sierra



                                          5
and her son were taken to a different room.

      Sierra could hear her husband being beaten and screaming. The men

repeatedly asked her where her money and jewelry were. Twice they took Sierra to

show her what they were doing to Segui, and told her she would be next. The first

time she saw Segui, he was tied to a chair with a mask over his face. He was

covered in blood, and the men were beating him with a flashlight. The second time

the men had put Segui into the jacuzzi and they were shocking him with electrical

cords. Sierra tried to escape with her son, but one of the men caught her.

      A short time later Sierra heard one of the men say Segui was dead. The men

came into the room where Sierra was, took photographic equipment, and went

towards the garage, where Segui’s 2006 Mercedes S500 was. Sierra heard the

garage door open and the car leave the garage. Sierra found Segui, alive but badly

hurt, on the floor in the master bedroom. Sierra ran to a neighbor’s house for help,

and the neighbor called the police.

      Miami-Dade police officers examined the scene and recovered evidence,

including a ski cap that contained Defendant Fernandez’s DNA. Police also

located Segui’s Mercedes, which was abandoned in the middle of a Miami street.

Several other witnesses, including Segui and various police officers, described the

events of February 21, 2007 and the evidence that was collected and processed.



                                          6
E.    Trial Evidence of Stash-House Robbery

      The government called Detective Julio Estopinan, who testified about the

conspiracy to rob a cocaine stash house. On August 23, 2007, Estopinan was

working with a confidential informant (“CI”) who met with Defendant Fernandez

twice that day about robbing a stash house. On that afternoon, the CI first met with

Defendant Fernandez and two other people at a restaurant to discuss the planned

robbery.

      A second meeting occurred later on August 23, 2007, at the apartment of one

of the conspirators. The CI met with Defendant Fernandez and the other

conspirators. At the meeting, they planned to wait until they received a call from a

person they believed was transporting 20 to 25 kilograms of cocaine to a stash

house, but who was actually an undercover officer. At that point they would

receive the address of the stash house, and go to rob it.

      Before the second meeting, the police officers instructed the CI to tell

Defendant Fernandez and the other conspirators to put whatever firearms they

wanted to bring to commit the stash-house robbery in the CI’s car. The officers

searched the CI and his car before the meeting and found no weapons. The CI met

with Fernandez and the other conspirators at the apartment while officers watched.

At the end of the meeting, the CI alone left in his car. Defendant Fernandez and



                                           7
the other conspirators followed in another car (which later was identified as Onel

Salgado’s). The conspirators were arrested while they were still in that car.

Following the arrests, Miami-Dade Police Sergeant Rudy Gonzalez searched the

CI’s car and found a black duffel bag containing firearms, including a Beretta 9mm

handgun with the serial number BER 362205. This serial number matched Segui’s

Beretta 9mm handgun that was taken on February 21, 2007.

      Onel Salgado, one of the conspirators, testified that on August 23, 2007, he

was arrested with Fernandez and three other men while they were on their way to

steal cocaine. Salgado was at the meeting in the apartment with Defendant

Fernandez and the others. They discussed using firearms during the robbery, and

looked for a bag to put them in. The weapons were in a car outside the apartment,

and the conspirators were going to transfer them to the CI’s car to take them to the

robbery. The conspirators found a black bag. Salgado did not see if there was

anything in the bag when they found it, but it looked like it had some weight in it.

Salgado never saw any guns in the apartment.

      Salgado testified that Defendant Fernandez, the CI, and one of the

conspirators named Roberto Davila left the apartment with the black bag. When it

was time to leave to go to the robbery, Defendant Fernandez and the other

conspirators (other than the CI) traveled in Salgado’s car. No one told Salgado



                                          8
where the guns were, but he knew they were in the CI’s car based on their earlier

conversations.

       Detective Robert Christie testified that on August 23, 2007, he was watching

the apartment where Defendant Fernandez and the other conspirators met to

discuss the stash-house robbery.3 At approximately 6:20 p.m., Christie saw

Fernandez leave the apartment with the CI and Davila. Davila was carrying a

black duffel bag that appeared to have something in it. The CI stopped at the back

of his car. Davila and Defendant Fernandez kept walking to a third car (belonging

to one of the other conspirators, but not Salgado).4 Christie did not see the duffel

bag placed into the third car, but saw that neither Davila nor Fernandez had the bag

when they walked back towards the CI’s car. Fernandez then got into that third car

with the duffel bag in it and drove that car next to the CI’s car. Davila went to his

own car (the fourth car) and moved it close to the others. Defendant Fernandez got

out of the third car and stood with the CI at the back of the CI’s car. At the CI’s

car, the CI was “leaning in appearing to be doing something.” It was at this time,

Christie testified, that the CI’s audio recording of his conversations with the



       3
        Christie was taking surveillance videos as he watched. The government played the
videos for the jury as Christie testified and described what he saw.
       4
       There were four cars at the scene, which we describe for clarity as the CI’s car,
Salgado’s car, the third car, and the fourth car (or Davila’s car). It is not clear from the record
who owned the third car.

                                                  9
conspirators reveals Defendant Fernandez telling the CI, “I’m waiting for them to

transfer the other handguns that they have there in order to close it[.]” Afterward

the CI left in his car. Defendant Fernandez and the other conspirators followed in

Salgado’s car.

F.    Defendant Fernandez’s Decision Not to Testify

      After the government rested and co-defendant Vasquez-Febles presented his

defense, Defendant Fernandez raised the issue of whether, if he testified, he would

be subject to cross-examination about his involvement in the stash-house robbery

conspiracy. Fernandez wanted to testify to deny his involvement in the carjacking

events of February 21, 2007, but wanted to invoke his Fifth Amendment privilege

as to the planned stash-house robbery. The district court stated:

             [Rule] 611 says cross-examination should be limited to the
      subject matter of the direct examination.
             In this case, though, anything that has to do with the house
      opens up the subsequent robbery. It’s within the scope, because the
      gun was stolen from the house.
             . . . [W]e’re not going to be able to resolve the issue right now
      except to tell you that my view of the situation instinctively, and
      based on what I know of the law without researching this particular
      issue, is that the Fifth Amendment can’t be used as a sword and a
      shield.
             If [Ferndandez] is going to take the stand and he’s going to
      deny being at the [Sierra/Segui] house, then that opens up how he
      managed to come into proximity . . . of the gun that had been stolen
      from the house. It’s so clearly to me within the scope of direct
      examination, it’s not arguable.



                                          10
The district court then informed Fernandez’s counsel that he and Fernandez should

discuss whether Fernandez wanted to testify based on the district court’s

preliminary conclusion that Fernandez would be subject to cross-examination

about the events of August 23, 2007:

      . . . I think that you and your client need to discuss this issue, based on
      my preliminary view of the situation, which is that if he takes the
      stand and denies being at the house, then he is going to raise a very
      significant . . . noncollateral issue as to how it happens that this
      extraordinary coincidence occurs that he is in close proximity to the
      gun stolen from the house on a later date.
      ....
      [Y]ou’re going to have to address it with [Fernandez] on the
      assumption that my preliminary view is the view that’s going to
      prevail.

Fernandez’s counsel later told the district court that Fernandez was “not inclined to

testify” if he could be questioned about the events of August 23, 2007, unless “the

remedy . . . if he did testify and he refused to answer questions concerning August

23rd on the grounds of the Fifth Amendment[] [was] that [the government] would

be able to use [his refusal] against him.” The district court informed Fernandez’s

counsel that if Fernandez took the stand and refused to answer questions about the

August 23, 2007 events on cross-examination, the district court would strike his

testimony from the record. But the district court went on to discuss case law that

approved as a remedy for a defendant’s selective invocation of the Fifth

Amendment a jury instruction that the defendant’s refusals to answer could be

                                          11
considered in assessing his credibility. The district court stated it could “live with”

such a remedy. After conferring with Fernandez, Fernandez’s counsel told the

district court that Fernandez would not be testifying, and he rested his case.

       The jury found Fernandez guilty of Counts One through Four and Count Six.

The district court sentenced Fernandez to life in prison, plus a consecutive term of

84 years. Fernandez appealed.

                                      II. DISCUSSION

A.     Evidence Regarding Stash-House Robbery Conspiracy

       On appeal, Fernandez argues that the district court erred in denying his

motion to exclude all evidence of the August 23, 2007 stash-house robbery

conspiracy.5 Under Federal Rule of Evidence 404(b), “[e]vidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person in order to

show action in conformity therewith,” although such evidence may be admitted

“for other purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.” Fed. R. Evid. 404(b). But

evidence of criminal acts other than those with which the defendant is charged “is

not extrinsic under Rule 404(b) if it is (1) an uncharged offense which arose out of

the same transaction or series of transactions as the charged offense, (2) necessary


       5
         We review a district court’s evidentiary rulings for abuse of discretion. United States v.
Sarras, 575 F.3d 1191, 1209 n.24 (11th Cir. 2009).

                                                12
to complete the story of the crime, or (3) inextricably intertwined with the evidence

regarding the charged offense[s].” United States v. Wright, 392 F.3d 1269, 1276

(11th Cir. 2004) (quotation marks omitted).

      We disagree with Fernandez’s contention that the district court committed

Rule 404(b) error. Under the particular factual circumstances here, evidence of

Fernandez’s participation in the conspiracy to rob the cocaine stash house on

August 23, 2007 was inextricably intertwined with the evidence of the charged

offenses. First, Fernandez was charged not only with the February 21, 2007

carjackings, hostage-taking, and use of a firearm, but also (in Count Six) with

possessing between February 21, 2007 and August 23, 2007 Segui’s stolen Beretta,

which was stolen on February 21, 2007 during the carjackings. Second, evidence

that Fernandez possessed the stolen Beretta in connection with the stash-house

conspiracy supports a legitimate inference that Fernandez took part in the charged

carjacking and hostage-taking offenses during which the Beretta was undisputedly

stolen. See United States v. Burns, 597 F.2d 939, 942 (5th Cir. 1979) (“One found

in unexplained possession of recently stolen property likely is the thief or privy to

the theft. Therefore, guilt may be inferred from the fact of possession.”); United

States v. Davis, 487 F.2d 112, 119 (5th Cir. 1973) (“Unexplained possession of

recently stolen property may be shown to permit an inference by the finder of fact



                                          13
that the possessor participated in the theft of the property.”).6 Third, the evidence

of Fernandez’s participation in the stash-house conspiracy was needed to show his

possession of the stolen Beretta on or about August 23, 2007, as charged in Count

Six. Fernandez was linked to the stolen handgun through his active participation in

the stash-house conspiracy, especially his movements and statements in gathering

the handguns (including the stolen Beretta) to be used in the planned robbery.

Under these facts, evidence of Fernandez’s participation in the stash-house robbery

conspiracy was inextricably intertwined with evidence of the charged offenses, and

Fernandez’s Rule 404(b) objection is misplaced.

       We also disagree with Fernandez’s contention that the evidence of the stash-

house robbery conspiracy should have been excluded as unduly prejudicial under

Federal Rule of Evidence 403. Rule 403 provides that evidence, even if relevant,

“may be excluded if its probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.” Fed. R. Evid. 403. Exclusion of evidence under Rule 403

“is an extraordinary remedy that must be used sparingly because it results in the



       6
       Decisions of the former Fifth Circuit issued before October 1, 1981 are binding
precedent in this Court. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en
banc).

                                               14
exclusion of concededly probative evidence.” United States v. US Infrastructure,

Inc., 576 F.3d 1195, 1211 (11th Cir. 2009), petition for cert. filed (U.S. Dec. 30,

2009) (No. 09-967). Furthermore, where evidence of other acts has been found to

be inextricably intertwined with evidence of charged conduct, this Court usually

does not find the intertwined evidence to be unduly prejudicial. See id. (collecting

cases, and noting that where the evidence is inextricably intertwined, it has not

been “‘dragged in by the heels’ solely for prejudicial impact”).

      Evidence of the stash-house conspiracy, as explained above, was highly

probative because it linked Fernandez to the stolen Beretta, which in turn linked

him to the February 21, 2007 carjackings and hostage-taking. The district court

did not abuse its discretion in finding that the danger of undue prejudice did not

substantially outweigh the probative value of the stash-house conspiracy evidence.

In that regard, we note that evidence that Fernandez possessed the stolen Beretta on

August 23, 2007 was one of three major pieces of evidence (along with Sierra’s

eyewitness identification and the DNA on the ski mask) implicating Fernandez in

the events of February 21, 2007. And importantly, after the stash-house evidence

came in, the district court instructed the jury that Fernandez was “on trial only for

those specific offenses alleged in the indictment.”

B.    Motion to Sever or Amend Count Six



                                          15
      Fernandez contends the district court erred in denying his motion to sever

Count Six (the stolen Beretta possession between February 21, 2007 and August

23, 2007) or alternatively to amend Count Six to restrict it to a charge of

possessing the stolen Beretta handgun on or about February 21, 2007.

      We undertake a two-step analysis to determine whether separate
      charges were properly tried at the same time. First, we review de
      novo whether the initial joinder of charges was proper under
      Fed.R.Crim.P. 8(a). Second, we determine whether the district court
      abused its discretion under Fed.R.Crim.P. 14 by denying the motion to
      sever.

United States v. Hersh, 297 F.3d 1233, 1241 (11th Cir. 2002) (citations omitted).

      Rule 8(a) provides that an indictment “may charge a defendant in separate

counts with 2 or more offenses if the offenses charged . . . are of the same or

similar character, or are based on the same act or transaction, or are connected with

or constitute parts of a common scheme or plan.” Fed. R. Crim. P. 8(a). Rule 8(a)

is to be “construed broadly in favor of initial joinder.” Hersh, 297 F.3d at 1241.

Rule 14(a) governs the district court’s ability to grant a party relief from prejudicial

joinder. It states that if joinder of offenses in an indictment “appears to prejudice a

defendant . . . , the court may order separate trials of counts, sever the defendants’

trials, or provide any other relief that justice so requires.” Fed. R. Crim. P. 14(a).

      Fernandez contends that Count Six, which charged him with possession of

the stolen Beretta not only on February 21, 2007, the date of the other charged

                                           16
offenses, but also through and including August 23, 2007, was not properly joined

with the remaining counts of the superseding indictment under Rule 8(a). He

argues that any possession of the stolen Beretta on August 23, 2007 related to a

different incident and was not part of the same course of conduct on February 21,

2007 that was the subject of all the other counts in the indictment.

      We disagree. Although the four corners of the indictment do not make plain

the connection between Count Six and the other counts asserted against Fernandez,

the government’s proffer of evidence (which was later supported by the trial

evidence) demonstrates that Fernandez’s possession of the stolen Beretta arose

from the February 21, 2007 carjackings, and thus from the same course of events

that was the subject of all the other counts in the indictment. Fernandez’s

possession of the stolen Beretta began with, and was caused by, his participation in

the carjackings and hostage-taking on February 21, 2007. The evidence that

Fernandez’s illegal possession of the stolen Beretta arose directly from the

February 21, 2007 home invasion during which the Beretta was stolen was enough

to show that Count Six and the other charged offenses were “based on the same act

or transaction or . . . connected together [with] or constitut[ed] parts of a common

scheme or plan,” as Rule 8(a) requires. See United States v. Dominguez, 226 F.3d

1235, 1238-39 (11th Cir. 2000) (finding that mortgage fraud charges were properly



                                          17
joined with drug conspiracy charges because the government alleged the drug

charges provided the motive and necessity for the mortgage fraud charges, and

stating that “the fact that one illegal activity provides the impetus for the other

illegal activity is sufficient to constitute a common scheme for joinder purposes”).

      We also conclude that the district court did not abuse its discretion in

refusing to sever Count Six from the remaining charges. Not only did the district

court properly conclude Count Six was properly joined, but it likewise was correct

in determining that Fernandez could not show the requisite prejudice for a

severance. As discussed earlier, the stolen Beretta firearm linked Fernandez

directly to the February 21, 2007 carjackings and hostage-taking and thus, even if

Count Six had been severed, the government could nevertheless have admitted

evidence that Fernandez possessed the stolen firearm on August 23, 2007. See

United States v. Dowd, 451 F.3d 1244, 1249-50 (11th Cir. 2006) (affirming denial

of motion to sever from post-office robbery case a count charging defendant with

possession, three days before robbery, of a gun not used during the robbery; court

concluded that even if counts were misjoined, defendant could show no compelling

prejudice because, inter alia, “the jury would have heard all of the firearms-related

evidence even in a severed trial on only the robbery charge”).

C.    Threat to Strike Fernandez’s Testimony



                                           18
       Fernandez’s final argument relates to the district court’s statement to

Fernandez’s counsel, during a conference outside the presence of the jury, that if

Fernandez took the stand but refused to answer questions regarding the events of

August 23, 2007 on Fifth Amendment grounds, the district court would strike

Fernandez’s testimony. Fernandez admits the district court may have retreated

from this statement.7 Nevertheless, Fernandez still did not testify. He now argues

that the district court’s threat to strike his potential testimony was error, and

contributed to his decision not to testify.

       Fernandez has failed to preserve this issue for review. In Luce v. United

States, 469 U.S. 38, 105 S. Ct. 460 (1984), the United States Supreme Court

concluded that a district court’s in limine evidentiary ruling, that a defendant could

be impeached under Federal Rule of Evidence 609(a) with evidence of a prior

conviction should he testify, was not reviewable because the defendant never

testified. Luce, 469 U.S. at 39-43, 105 S. Ct. at 462-64. The Supreme Court

reasoned that, since the nature of the defendant’s testimony was unknown, and it

was not known for certain whether the government would have actually chosen to

impeach him using the prior conviction, a determination as to any possible harm


       7
          Indeed, we earlier recited the district court’s statements in full because it is clear the
district court ultimately indicated that in lieu of striking Fernandez’s testimony, it could accept
the remedy of instructing the jury that Fernandez’s refusal to answer questions based on
selective invocation of the Fifth Amendment could be considered in assessing his credibility.

                                                  19
flowing from the court’s ruling would be wholly speculative. Id. at 41-42, 105 S.

Ct. at 463.

       In United States v. Studnicka, 777 F.2d 652 (11th Cir. 1985), we extended

Luce’s rationale beyond Rule 609(a), and determined that a defendant who chose

not to take the stand after the district court concluded that he could be cross-

examined about his earlier failure to appear for trial could not challenge the district

court’s ruling on appeal. See Studnicka, 777 F.2d at 660 (“The tactical decision

not to take the stand . . . precludes appellant from challenging on appeal the trial

court’s ruling. A defendant must testify in order to raise and preserve this issue for

appellate review.”). We expressly rejected the defendant’s argument that the

district court’s ruling forced him to forfeit his right to testify. Id.

       Here, after obtaining the district court’s ruling that the government would be

able to question Fernandez, should he testify, about how the stolen Beretta came to

be in his possession on August 23, 2007, Fernandez chose not to testify. For this

reason, he has failed to preserve any claim of error as to the district court’s ruling.

See Studnicka, 777 F.2d at 660.

                                  III. CONCLUSION

       For the reasons set forth above, we affirm Defendant Fernandez’s

convictions for carjacking, hostage-taking, using or carrying a firearm during a



                                            20
crime of violence, and knowingly possessing a stolen firearm.8

      AFFIRMED.




      8
          On appeal, Defendant Fernandez did not raise any errors as to his sentences.

                                                 21
