United States v. Earl Jeffery Barber , 132 F. App'x 233 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 9, 2005
No. 04-13094 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00052-CR-1-MMP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EARL JEFFERY BARBER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(May 9, 2005)
Before HULL, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Earl Jeffery Barber appeals his convictions and sentences for possession of a
firearm by a convicted felon, in violation of 18 U.S.C. sections 922(g)(1) and
924(e)(1), and possession of stolen firearms, in violation of 18 U.S.C.
sections 922(j) and 924(a)(2). Barber argues that the district court erred when it
denied a motion to suppress a photographic lineup identification and when it
applied an obstruction of justice enhancement. Barber also contends for the first
time on appeal that the district court violated his Sixth Amendment rights when it
applied the obstruction of justice enhancement based on facts that were neither
charged in his indictment nor proven to a jury. We reject each argument and
affirm Barber’s convictions and sentences.
I. BACKGROUND
The charges against Barber arose from an investigation of the burglary of the
home of Katherine Hayes and the theft of her jewelry, collector’s coins, and
firearms. Before trial, Barber filed a motion to suppress the identification of him
by an eyewitness, Katherine Hayes, and her eleven year old son, John Hayes,
through a photographic lineup. Barber argued that the photographic array was
unduly suggestive because he was the only individual with hair color that matched
the description of the eyewitnesses. Barber also argued that the identification
procedure was tainted because, when John Hayes was shown the photographic
lineup, Barber’s photograph was marked with Katherine Hayes’s initials.
The district court held a hearing on the motion to suppress, and the
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government presented the testimony of Katherine Hayes, John Hayes, and the
detective who conducted the photographic lineup. The district court denied the
motion to suppress and explained that “nothing about the manner in which the
photographic array was prepared, or presented, was unduly suggestive” and that
“each witness, independent of each other and in a separate proceeding, in fact
identified the defendant . . . and that it was only after each had made their own
independent identification that they placed their initials upon the photo array.”
A jury found Barber guilty on both counts. At the sentencing hearing,
Barber stated that he accepted and had no objections to the facts and
recommendations in the presentence investigation report. The government
objected because the probation office did not recommend an enhancement for
obstruction of justice. Special Agent Michael Mitchell testified in support of the
enhancement. He testified that Barber’s co-defendant, Anthony Boyd, who turned
himself into police the day after the burglary, told authorities that Barber instructed
Boyd not to implicate Barber. Agent Mitchell also testified that in phone calls
made from prison, Barber told his mother, sister, and wife to make sure that Boyd
maintained his story and not “lie on him.” Barber also made a phone call to Boyd
about Boyd’s testimony in front of the grand jury. Portions of the recorded phone
calls were played for the court.
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The district court sustained the government’s objection and found that
Barber “concocted the story so as to hide the truth of the fact that he was . . .
involved in the burglaries. He maintained that posture through the tapes I heard by
telling others to find certain testimony.” The court applied the enhancement and
sentenced Barber to 327 months’ imprisonment for Count 1 and 120 months’
imprisonment for Count 2, to run concurrently.
II. DISCUSSION
Barber makes three arguments on appeal. Barber first argues that the district
court erred when it denied his motion to suppress the photograph lineup
identification by the two eyewitnesses to the burglary. Second, he contends that
the district court erred when it applied the obstruction of justice enhancement,
because the government failed to present reliable and specific evidence to support
the enhancement and instead relied on the trial testimony of Barber’s co-defendant.
Finally, Barber argues for the first time on appeal that the obstruction of justice
enhancement was based on facts neither charged in the indictment nor submitted to
the jury, in violation of the Sixth Amendment. See United States v. Booker, 543
U.S. ___, ___, 125 S. Ct. 738, 749-56 (2005).
A. Motion to Suppress
We employ a two-step analysis to assess the constitutionality of the decision
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by a district court to admit out-of-court identifications. See Cikora v. Duffer, 840
F.2d 893, 895 (11th Cir. 1988). “First, we must determine whether the original
identification procedure was unduly suggestive. If we conclude that the
identification procedure was suggestive, we must then consider whether, under the
totality of the circumstances, the identification was nonetheless reliable.” Id.Factors to be considered in determining whether the identification was reliable
include: (1) opportunity to view; (2) degree of attention; (3) accuracy of the
description; (4) level of certainty; and (5) length of time between the crime and the
identification. See Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382 (1972).
The district court concluded that the identification procedure was not
impermissibly suggestive. This conclusion is subject to a clearly erroneous
standard. See Cikora v. Duffer, 840 F.2d at 896. “In reviewing the denial of a
motion to suppress, we construe the facts in the light most favorable to the
prevailing party below.” United States v. Fernandez , 58 F.3d 593, 596 (11th Cir.
1995).
Construing the facts most favorably to the government, the district court did
not clearly err when it found that neither the photographic lineup nor the
identification procedure was unduly suggestive. Although John Hayes testified at
the motion hearing that he could not remember whether his mother’s intials were
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on the photographic array when he made the identification, both Katherine Hayes
and the detective who conducted the lineup testified at the motion hearing that Mrs.
Hayes’s initials were not on the array that was shown to John. In addition, the hair
color in Barber’s photograph was not so different from those in the other
photographs that we could conclude that the district court clearly erred when it
found the photographic lineup not unduly suggestive. Barber’s contention that a
minor difference in hair color necessarily renders a photographic lineup unduly
suggestive is not supported by our precedent. See United States v. Weldon, 826
F.2d 1018, 1021 (11th Cir. 1987). Because we conclude that the district court did
not clearly err when it found neither the lineup nor identification procedures
suggestive, we do not need to proceed to the second step to determine whether the
identification was unreliable.
B. Obstruction of Justice
A court may impose a two-level enhancement if the defendant “willfully
obstructed or impeded, or attempted to obstruct or impede, the administration of
justice during the course of the investigation, prosecution, or sentencing of the
instant offense of conviction . . . .” U.S.S.G. § 3C1.1 The comments to U.S.S.G.
section 3C1.1 provide a non-exhaustive list of examples of the types of conduct to
which the adjustment applies and include “threatening, intimidating, or otherwise
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unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or
attempting to do so.” Id. cmt. at 4(a). “The district court’s determination that a
defendant has obstructed justice is a factual finding which must be affirmed unless
it is clearly erroneous.” United States v. Kramer, 943 F.2d 1543, 1552 (11th Cir.
1991) (citation omitted).
Barber’s argument fails. The evidence at sentencing showed that Barber told
his co-defendant, Boyd, to lie to authorities regarding his involvement in the
burglary, and Barber pressured and solicited his family to pressure Boyd to
continue to tell authorities that he was not involved. The district court did not
clearly err when it found that Barber had obstructed justice and applied the
enhancement.
C. Sixth Amendment Violation
Barber’s argument that the enhancement of his sentence violated the Sixth
Amendment is reviewed for plain error. We “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. If all three conditions are met, an
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.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.
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2005) (quotations and citations omitted).
The first prong of the plain error test is satisfied. Under a mandatory
guidelines system, the district court enhanced Barber’s sentence as a result of
findings made by the judge that went beyond the facts admitted by Barber or found
by the jury. The enhancement was based on the judge’s findings regarding
obstruction of justice, and it increased Barber’s base offense level, guideline range,
and sentence under a mandatory guidelines system.
The second prong of the plain error test is also satisfied. “[T]he 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.” Id. at
1297. Although the error was not “plain” at the time of sentencing, “where the
law at the time of trial was settled and clearly contrary to the law at the time of
appeal – it is enough that the error be ‘plain’ at the time of appellate
consideration.” Johnson v. United States, 520 U.S. 461, 468, 117 S. Ct. 1544,
1549 (1997). This error is now plain under Booker.
Barber, however, 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
always requires that the error must have affected the outcome of the district court
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proceedings.” Rodriguez, 398 F.3d at 1299 (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.
Barber 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 Barber at the highest point in the
guidelines range. Even if Barber’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. Because it is
unclear whether the district court would have imposed a different sentence if it had
applied the Guidelines in an advisory fashion, Barber has not established a
reasonable probability that the result of his sentencing would have been different
but for the Booker error. See id. We need not apply the fourth prong of the plain
error test.
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III. CONCLUSION
The district court did not clearly err when it denied the motion to suppress
and when it applied the enhancement for obstruction of justice. Barber also failed
to establish a reasonable probability that the Booker error affected the outcome of
his sentencing.
AFFIRMED.
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