                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-5054



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


JESSE ROBINSON,

                                            Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (CR-04-
219)


Submitted:   May 8, 2006                    Decided:   May 18, 2006


Before WILKINS, Chief Judge, and WILKINSON and MICHAEL, Circuit
Judges.


Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.


James Wyda, Federal Public Defender, Lisa C. Phelan, Assistant
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greenbelt, Maryland, for Appellant.    Rod J. Rosenstein, United
States Attorney, James T. Wallner, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     During a search incident to the arrest of defendant Jesse

Robinson on an outstanding state-law warrant, Baltimore police

officers found a 9mm Jennings handgun tucked into his waistband.

A jury subsequently found Robinson guilty of possession of a

firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)

(2000).     The district court determined that Robinson’s criminal

history   qualified     him    for    sentencing     under    the    Armed   Career

Criminal Act (ACCA), id. § 924(e) (2000 & Supp. II 2002), and

sentenced    him   to   a   term     of   235    months.     Robinson     appeals,

challenging    his   conviction       and      sentence.     For    the   following

reasons, we affirm the conviction but vacate the sentence and

remand for resentencing.



                                          I.

     Robinson attacks his conviction on three separate grounds, all

of which we find to be without merit.                First, he challenges the

district court’s refusal to grant him a continuance to file a

proper pre-trial motion pursuant to Franks v. Delaware, 438 U.S.

154, 171 (1978).        See United States v. Jeffus, 22 F.3d 554, 559

(4th Cir. 1994) (reviewing refusal to continue a Franks motion for

abuse of discretion).         Franks permits a defendant to make an offer

of proof, typically through “[a]ffidavits or sworn or otherwise

reliable statements of witnesses,” that he is entitled to an


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evidentiary      hearing    to    challenge        the   validity    of    a   warrant.

Franks, 438 U.S. at 171.           Here, despite having weeks to secure an

affidavit, Robinson simply showed up at court with his witnesses,

presenting only an attorney proffer in support of his contention

that    an    evidentiary        hearing    was      warranted.           Under   these

circumstances, the district court did not abuse its discretion in

denying      Robinson’s    request    for      a   continuance      to    prepare   the

required affidavit.

       Second,   Robinson    contends       that     the   government’s        rebuttal

argument at the close of trial amounted to improper prosecutorial

“vouching.”       “Vouching generally occurs when the prosecutor’s

actions are such that a jury could reasonably believe that the

prosecutor was indicating a personal belief in the credibility of

[a] witness.”     United States v. Lewis, 10 F.3d 1086, 1089 (4th Cir.

1993). Robinson suggests that the prosecutor impermissibly vouched

for the testimony of police officers when he argued that accepting

the defense’s theory of the case would require the jury to find

that the officers had lied on the stand and that such a finding

would be unreasonable and insulting.

       There was no improper vouching here because these comments

were “not an expression of personal opinion by the prosecutor;

rather, [they were] a permissible rebuttal to a defense argument,”

as defense counsel had just finished arguing to the jury that the

officers shaped their testimony to secure a conviction.                           United


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States v. Morsley, 64 F.3d 907, 912 (4th Cir. 1995); see also

United States v. Scott, 267 F.3d 729, 740-41 (7th Cir. 2001) (no

error to rebut defense suggestion that prosecution witnesses lied).

Moreover, even if vouching did take place, reversal is warranted

only if the improper statements “so infect[ed] the trial with

unfairness as to make the resulting conviction a denial of due

process.”   United States v. Collins, 401 F.3d 212, 217 (4th Cir.

2005) (internal quotation marks omitted).   We cannot conclude that

this was the case here.

     Third, Robinson contests the sufficiency of the evidence

against him, arguing that the government failed to establish a

continuous chain of custody for the weapon introduced into evidence

as the one he possessed at the time of his arrest.     “[C]hain of

custody is not an iron-clad requirement,” and a “missing link” in

the chain is not fatal “so long as there is sufficient proof that

the evidence is what it purports to be and has not been altered in

any material respect.”    United States v. Ricco, 52 F.3d 58, 61-62

(4th Cir. 1995) (internal quotation marks omitted).    Considering

the evidence -- including unequivocal direct testimony from the

arresting officer -- in the light most favorable to the government,

we find ample reason why the jury could conclude that the gun

introduced into evidence was indeed the same one recovered from

Robinson.   See United States v. Burgos, 94 F.3d 849, 863 (4th Cir.

1996) (en banc).


                                  4
                                      II.

     With respect to his sentencing, Robinson presents two further

arguments for our review.         First, he claims that it was error under

Blakely v. Washington, 542 U.S. 296 (2004), and United States v.

Booker, 543 U.S. 220 (2005), for the district court to find him

eligible for sentencing under ACCA based on predicate convictions

that had neither been found by a jury nor admitted by him.                        But

even after Blakely and Booker, “the Supreme Court continues to hold

that the Sixth Amendment (as well as due process) does not demand

that the mere fact of a prior conviction used as a basis for a

sentencing enhancement be pleaded in an indictment and submitted to

a jury for proof beyond a reasonable doubt.”                   United States v.

Cheek, 415 F.3d 349, 352 (4th Cir. 2005); see also Booker, 543 U.S.

at 244 (only facts “other than a prior conviction” must be admitted

or proven to jury).

     Second, Robinson claims -- and the government concedes -- that

we must remand for resentencing because the district court treated

the Guidelines as mandatory in deciding on his sentence.                   We have

referred to this as “statutory Booker error,” and because Robinson

raised a proper objection below, we review for harmless error.

United States v. Rodriguez, 433 F.3d 411, 414 & n.6, 416 (4th Cir.

2006).   We find no indication in the record that the error was

harmless,    and   thus   agree    with       the   parties   that   a   remand    is

necessary.    See id. at 416.


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                                 III.

     We therefore affirm Robinson’s conviction, but vacate his

sentence and remand for resentencing in accordance with Booker.

Although the sentencing Guidelines are no longer mandatory, Booker

makes clear that a sentencing court “must consult [the] Guidelines

and take them into account when sentencing” a defendant.    543 U.S.

at 264.     On remand, the district court should first determine the

appropriate sentencing range under the Guidelines, making all

factual findings appropriate for that determination.     See United

States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005).       The court

should consider this sentencing range along with the other factors

described in 18 U.S.C.A. § 3553(a) (West 2005), and then impose a

sentence.     See Hughes, 401 F.3d at 546.   If that sentence falls

outside the Guidelines range, the court should explain its reasons

for the departure as required by 18 U.S.C.A. § 3553(c)(2).       See

Hughes, 401 F.3d at 546.        The sentence must be “within the

statutorily prescribed range” and “reasonable.”    Id. at 547.

     We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before us and

argument would not aid the decisional process.



                                                   AFFIRMED IN PART;
                                        VACATED AND REMANDED IN PART




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