                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            JAN 04 2008
                             No. 07-11267                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 06-60104-CR-CMA

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

GEORGE FRANK MYLES, JR.,

                                                         Defendant-Appellant.


                       ________________________

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

                            (January 4, 2008)

Before DUBINA, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
      George Myles, Jr. appeals his convictions and aggregate sentence of

78 months’ imprisonment for making fraudulent representations concerning

aircraft parts to the Department of Defense and others in violation of 18 U.S.C.

§§ 38(a)(1)(B), (b)(4), 2. We review his issues on appeal in turn, and affirm his

convictions and sentence.

                                          I.

      Myles first asserts the district court violated the Confrontation Clause of the

Sixth Amendment by admitting seized business records from his company, Miles

Aviation, and by admitting Agent Timothy Arnold’s testimony regarding the

contents of the records. Myles contends the records were testimonial in nature

because they contain a description of the events that the customer and the

Government believed were criminal. Thus, Myles claims he was denied the

opportunity to cross examine the allegedly defrauded customers. Myles concedes

he did not raise this Sixth Amendment argument below.

      Where the defendant raises an argument for the first time on appeal, we

review for plain error. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th

Cir. 2005). Where neither precedent nor the explicit language of the rule

specifically resolves an issue, there can be no plain error. United States v. Lejarde-

Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).



                                          2
      The Sixth Amendment’s 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

bars the admission of testimonial statements if the declarant has not been, and

cannot be, subjected to full cross-examination regardless of the admissibility of

statements under the laws of evidence. Crawford v. Washington, 124 S. Ct. 1354,

1364, 1370, 1374 (2004).

      The district court did not plainly err in admitting the disputed records and

permitting Agent Arnold to testify to their contents. The disputed records

consisted of business records in the form of FAA 8130 and ATA 106 forms which

were seized from Miles Aviation and were prepared and signed by Myles. Neither

the Supreme Court nor this Court has held that such business records constitute

testimonial hearsay or violate the Confrontation Clause. Moreover, in Crawford,

the Supreme Court suggested that business records were not, “by their nature,”

testimonial. Crawford, 124 S. Ct. at 1367. Because admission of the business

records did not contradict precedent or the explicit language of a statute, the district

court did not plainly err. See Lejarde-Rada, 319 F.3d at 1291.




                                           3
                                                 II.

       Myles next contends the admission of Miles Aviation’s answer to a civil

complaint constitutes reversible error because it affected his substantial rights by

materially contradicting his trial testimony.

       We review a district court’s evidentiary ruling for an abuse of discretion.

United States v. Garcia-Jaimes, 484 F.3d 1311, 1320 (11th Cir. 2007). We have

held that evidentiary errors “do not constitute grounds for reversal unless there is a

reasonable likelihood that they affected the defendant’s substantial rights.” United

States v. Hawkins, 905 F.2d 1489, 1493 (1990).

       As the parties agree, Miles Aviation’s answer was not admissible under Rule

803(8).1 However, in light of the evidence presented at trial, any error in admitting

the evidence was not grounds for reversal because it did not affect Myles’s

substantial rights. At trial, the evidence showed that (1) Myles signed FAA 8130

and ATA 106 forms without proper authority; (2) these forms falsely attested to the

inspection, condition, and origination of the aircraft parts he sold; (3) Myles did

this despite warning letters from the FAA informing him that he was not



       1
          Subsection 8 of Rule 803’s hearsay exceptions permits admission of records of public
offices or agencies, setting forth: (1) the activities of the office or agency; (2) matters observed
pursuant to duty imposed by law as to which matters there was a duty to report; or (3) in civil
actions and proceedings and against the government in criminal cases, factual findings resulting
from an investigation made pursuant to authority granted by law. Fed. R. Evid. 803(8).

                                                  4
authorized to inspect and overhaul parts; and (4) he sold the parts based on his

fraudulent certification of the part’s condition. Additionally, two witnesses

testified the Eagle NDT testing equipment appeared unused for some time. Thus,

the admission of Miles Aviation’s answer, indicating the equipment purchased

from Eagle NDT did not work, did not have a substantial influence on the outcome

of the trial because there was sufficient evidence that Myles knowingly made false

certifications regarding the aircraft parts with intent to defraud in violation of § 38.

Therefore, reversal of Myles’s conviction is not required. See Hawkins, 905 F.2d

at 1493.

                                           III.

      Myles further asserts the district court erred in considering uncharged

transactions as relevant conduct at sentencing when it enhanced his sentence based

on the loss amount and number of victims. Myles contends the uncharged

transactions, which substantially increased his Guidelines offense level pursuant to

U.S.S.G. § 2B1.1(b), were not part of the same course of conduct for which he was

indicted and convicted. Additionally, Myles asserts the district court’s findings

were not based on reliable and specific evidence.

      We review whether the district court misapplied the relevant conduct

provisions of the Guidelines de novo. See United States v. McCrimmon, 362 F.3d



                                            5
725, 728 (11th Cir. 2004). We review for clear error the district court’s factual

findings at sentencing, such as loss amount and number of victims. See id. If a

defendant fails to raise his objection before the district court, however, we review

the issue for plain error. Rodriguez, 398 F.3d at 1298.2

       The district court must correctly calculate the Guidelines range, including

consideration of all relevant conduct. United States v. Hamaker, 455 F.3d 1316,

1336 (11th Cir. 2006). Relevant conduct may include both uncharged and

acquitted conduct that is proven by a preponderance of the evidence. Id.

       The Guidelines’ relevant conduct provisions require consideration of the

following to determine an offense level:

       (a)(1)(A) all acts and omissions committed, aided, abetted, counseled,
       commanded, induced, procured, or willfully caused by the defendant;
       and
       ...

       (2) solely with respect to offenses of a character for which § 3D1.2(d)
       would require grouping of multiple counts, all acts and omissions
       described in subdivision[] (1)(A) . . . above that were part of the same



       2
          During sentencing, Myles’s objections focused on whether the uncharged transactions
should be included as relevant conduct, as well as the amount of loss and number of victims. On
admission of the evidence of the uncharged transactions, Myles did not dispute their accuracy
but argued they should not be included as relevant conduct. Later, Myles argued the conclusions
drawn from the evidence were based on “too many assumptions.” Because he did not explicitly
object to the reliability and specificity of the evidence underlying the court’s findings, Myles’s
challenge to the reliability and specificity of the evidence at sentencing should be reviewed for
plain error. Thus, whether the uncharged transactions constitute relevant conduct is reviewed
de novo, and the reliability and specificity of the evidence is reviewed for plain error.

                                                6
      course of conduct or common scheme or plan as the offense of
      conviction;

      (3) all harm that resulted from the acts and omissions specified in
      subsection[] (1)(A) . . . above, and all harm that was the object of such
      acts and omissions; and

      (4) any other information specified in the applicable guideline.

U.S.S.G. § 1B1.3. According to the commentary, offenses constitute a common

scheme or plan if they are “substantially connected to each other by at least one

common factor, such as common victims, common accomplices, common purpose,

or similar modus operandi.” Id., comment. (n.9(A)). Additionally, offenses are the

same course of conduct, “if they are sufficiently connected or related to each other

as to warrant the conclusion that they are part of a single episode, spree, or ongoing

series of offenses” after considering “the degree of similarity of the offenses, the

regularity (repetitions) of the offenses, and the time interval between the offenses.”

Id., comment. (n.9(B)).

      In determining whether uncharged conduct is relevant, we evaluate the

similarity, regularity, and temporal proximity between the counts of conviction and

uncharged conduct. United States v. Maxwell, 34 F.3d 1006, 1011 (11th Cir.

1994). This evaluation includes consideration of “‘whether there are distinctive

similarities between the offense of conviction and the remote conduct that signal

that they are part of a single course of conduct rather than isolated, unrelated

                                           7
events that happen only to be similar in kind.” Id. (quoting United States v. Sykes,

7 F.3d 1331, 1336 (7th Cir. 1993)).

      We considered whether the sales of car parts stolen at different times from

different victims at different locations to bona fide purchasers and co-conspirators

were part of the same course of conduct or common scheme to constitute relevant

conduct. United States v. Fuentes, 107 F.3d 1515, 1524-25 (11th Cir. 1997)

(determining relevant conduct under U.S.S.G. § 1B1.3 where some sales provided

the basis for state convictions but not the federal convictions for which the

defendant was being sentenced). We concluded the federally charged and state

charged incidents were part of the same course of conduct and common scheme or

plan, because the incidents occurred with regularity within the same time period

and shared identical modus operandi and purpose. Id. at 1525-26. Therefore, all

the incidents constituted relevant conduct. Id. at 1526.

      The district court did not err in including Myles’s uncharged conduct as

relevant conduct under §1B1.3. Like the state charged conduct in Fuentes,

Myles’s uncharged conduct regularly occurred within the same time period as the

charged conduct. Specifically, the seized documents showed that Myles completed

more than 250 FAA 8130 and ATA 106 forms between March 2004 and February

2006, and the indictment covered fraudulent transactions committed between July



                                          8
2005 and February 2006. Therefore, the uncharged conduct was part of the same

course of conduct. See Fuentes, 107 F.3d at 1525. Additionally, all of Myles’s

conduct followed the same modus operandi. He received an order, filled it with

non-conforming parts, and falsely certified the parts in order to profit from the

sales of parts by misrepresenting their condition. Thus, the uncharged conduct was

also part of the same common scheme. See Fuentes, 107 F.3d at 1525.

       Next, Myles contends there was not reliable and specific evidence

supporting the enhancements for the relevant conduct. In determining the loss

attributable to relevant conduct, the government bears the burden of proving loss

with reliable and specific evidence. United States v. Dabbs, 134 F.3d 1071, 1081

(11th Cir. 1998). However, the loss may be a reasonable estimate of the intended

loss. U.S.S.G. § 2B1.1, comment. (n.3(C)).

       Contrary to Myles’s assertion, the district court did not rely solely on a

cursory review of the binder material to determine relevant conduct, loss, and

victims at sentencing. Instead, the Government presented documentary evidence

and a witness, Ramirez, who testified to his audit of all the documents seized from

Miles Aviation, the contents of the binders, and the summary charts admitted as the

Government’s exhibits.3 Ramirez also testified he traced the fraudulent provision


       3
          Rule 1006 permits the contents of voluminous writing to be presented in the form of a
chart, summary, or calculation. Fed. R. Evid. 1006. Myles does not contend that the

                                               9
of parts to each represented customer beginning with its order. Therefore, Myles’s

argument the district court failed to base its findings on specific and reliable

evidence is without merit. See Dabbs, 134 F.3d at 1081.

                                           IV.

       The district court did not plainly err in admitting FAA 8130 and ATA 106

forms. Although the district court erred when it admitted Miles Aviation’s answer

to a civil complaint under the public records exception, any error did not affect

Myles’s substantial rights in light of the other evidence against him. The district

court did not err when it considered uncharged fraudulent transactions as relevant

conduct to determine sentencing enhancements based on the loss amount and

number of victims because the transactions occurred during the same time period

and followed the same course of conduct as the charged transactions. Accordingly,

we affirm Myles’s convictions and aggregate sentence.

       AFFIRMED.




Government’s exhibits were improperly admitted under Rule 1006.

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