* Pursua nt to 5 T H C IR

. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

March 7, 2006

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-11460

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANIEL L. MAJOR; CHRISTOPHER L. RHODES; SHANGO H. ALVES,

Defendants-Appellants.

-------------------- Appeals from the United States District Court

for the Northern District of Texas

(4:04-CR-70-4)

--------------------

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM: *

Defendant-Appellant Daniel L. Major appeals his jury

conviction and sentence for conspiracy to use and carry a firearm

during a crime of violence. Defendant-Appellants Christopher L.

Rhodes and Shango H. Alves appeal their jury convictions and

sentences for conspiracy to use and carry a firearm during a crime

of violence, theft of firearms from a federally licensed firearms

dealer, and using and carrying a firearm during a crime of

violence.2

Rhodes contends that the district court abused its discretion

in admitting the testimony of Virgil VanHuss, Jr., the manager of

the 183 Pawn Shop, and Special Agent Melanie Finney of the Bureau

o f Alcohol, Tobacco, Firearms, and Explosives, that the 183 P awn

Shop was a federally licensed firearms dealer on the date of the

robbery. Rhodes argues that the witnesses lacked personal

knowledge of th is fact. VanHuss testified that he had been the

manager of the pawn shop for 20 years, had personally seen the pawn

shop’s federal firearms license, and had been told that the pawn

shop had a federal firearms license. Agent Finney testified that

a search of the ATF regulatory branch records confirmed that this

pawn shop was a federally licensed firearms dealer on the date of

the robbery. Rhodes has not shown that the district court abused

its discretion in admitting this testimony. See United States v.

Cantu , 167 F.3d 198, 203-04 (5th Cir. 1999).

Rhodes and Major contend that the evidence was insufficient to

support the jury’s finding that the pawn shop was a federally

licensed firearms dealer on the date of the robbery. This fact was

not an element of the conspiracy offense of which Major was

convicted, so the jury was not required to find this fact to

convict Major of the conspiracy offense. Rhodes made a motion for

a judgment of acquittal at the close of the government’s case, but

did not renew the motion at the close of all of the evidence.

Therefore, our review is limited to determining whether there was

“a manifest miscarriage of justice.” United States v. Green , 2933

F.3d 886, 895 (5th Cir. 2002). A review of the testimony of

VanHuss and Agent Finney confirms that the record is not devoid of

e vidence that the pawn shop was a federally licensed firea rms

dealer on the date of the r obbery or that the evidence was “so

tenuous that a conviction is shocking.” S ee United States v.

Avants , 367 F.3d 433, 449 (5th Cir. 2004).

Major asserts that the evidence was insufficient to support

his conviction for conspiracy to use and carry a firearm during a

crime of violence. He made a motion for a judgment of acquittal at

the close of the government’s case, but did not renew the motion at

the close of all of the evidence. Our review is thus limited to

determining whether there was “a manifest miscarriage of justice.”

See Green

, 293 F.3d at 895. The government presented evidence that

Major was present at Terrell Clar k’s apartment along with Clark,

Alves, Rhodes, Timothy Davis, and Crystal Pruitt, when Clark,

Rhodes, and Alves were planning the robbery. Clark asked Major

whet her they could use his car. Clark and Davis testified that

Major (1) agreed to allow the robbers to use his car, (2) gave the

keys to the car to either Clark or Rhodes, and (3) told them not to

damage his car. Alves stole a license plate to put on Major’s car

during the robbery. Rhodes told Major he could have first choice

of any gun or “whatever he bring[s].” Major was present at the

apartment when Clark, Rhodes, and Alves returned after the robbery.

Clark returned Major’s car keys and told him there was nothing

wrong with the car. Major chose a .45 caliber chrome pistol from4

the firearms stolen during the robbery. Davis later saw Major

changing the license plate on his car. A review of the evidence

demonstrates that the record is not devoid of evidence of Major’s

guilt or tha t the evidence was “so tenuous that a conviction is

shocking.” See Avants , 367 F.3d at 449.

Major, Rhodes, and Alves contend that the district court erred

(1) in excluding the testimony of Stacy Harris concerning

statements allegedly made by Terrell Clark and (2) in not allowing

Clark to be rec alled to deny making these statements. We review

the admission or exclusion of evidence for abuse of discretion, and

any resulting error for harmlessness. C antu

, 167 F.3d at 203. We

review alleged violations of the Confrontation Clause de novo, and

any resulting error for harmlessness. United States v. Bell , 367

F.3d 452, 465 (5th Cir. 2004). As Major and Alves did not object

to the district court’s exclusion of Harris’ s testimony and the

limitations of Clark’s cross-examination, our review is limited to

plain error. S ee United States v. Mares , 402 F.3d 511, 520 (5th

Cir.), cert. denied

, 126 S. Ct. 43 (2005). The defendants have not

shown that the district court abused its discretion in excluding

Harris’s testimony or violated their rights under the Confrontation

Clause by limiting their cross- examination of Clark. Rhodes’s

counsel was permitted to cross-examine Clark extensively concerning

his plea agreement with the government in exchange for a lesser

sente nce and the government’s agreement not to prosecute him for

the robbery of the Alvarado Pawn Shop. Rhodes’s counsel also5

cross-examined Clark concerning inconsistent statements that he

made to the police concerning the robberies. This crossexamination confirms that the jury was provided adequate

information to appraise Clark’s bias and m otives. S ee United

States v. Mizell

, 88 F.3d 288, 293 (5th Cir. 1996). The jury’s

acquittal of Rhodes for counts one, two, and three concerning the

Alvarado Pawn Shop robbery is also a strong indication that the

jury had adequate information to appr aise Clark’s bias, motives,

and credibility. And, as Clark’s testimony was cumulative of the

testimony of VanHuss and Davis and extensive cross-examination of

Clark was otherwise permitted, any error was harmless. S ee

Delaware v. Van Arsdall

, 475 U.S. 673, 678 (1986). As the jury was

provided with adequate information to assess Clark’s bias and

motives, an d as Clark’s testimony was corroborated by other

evidence, inclu ding the testimony of Davis and Hickman against

these defendants, Alves and Major have failed to show that the

district court’s limitation of their cross-examination of Clark was

reversible plain error. See Mares , 402 F.3d at 520-21.

Alves urges that the distri ct court erred in refusing to

suppress his statements made while in custody because he was under

the inf luence of narcotics and unable to intelligently waive his

rights. He also urges that statements he made after requesting an

attorney should have been suppressed. As Alves did not provide a

transcript of the suppression hearing, we are precluded from6

reviewing his allegations in that regard. S ee United States v.

Narvaez , 38 F.3d 162, 167 (5th Cir. 1994).

Alves further contends tha t the district judge erred in

refusing to recuse himself. Alves has not shown that a reasonable

person who knew all of the circumstances would harbor doubts about

the judge’s impartiality. S ee United States v. Anderson

, 160 F.3d

231, 233 (5th Cir. 1998). Therefore, Alves has not shown that the

district court abused its discretion in denying his motion for

recusal.

All Defendants-Appellants insist that their sentences should

be vacated in light of United States v. Booker , 543 U.S. 220

(2005). The government conceded that the defendants’s objections

based on Blakely v. Washington , 542 U.S. 296 (2004), were

sufficient to preserve this issue for appeal. We review the

sentences for harmless error. United States v. Walters , 418 F.3d

461, 463 (5th Cir. 2005). The government also concedes that the

district court erred in imposin g the defendants’ sentences under

the mandatory Guidelines, and that it cannot demonstrate that the

error was harmless beyond a reasonable doubt because there is no

indication in the record that the district court would have imposed

the same sentences if the Guidelines had been advisory. S ee United

States v. Garza , 429 F.3d 165, 170 (5th Cir. 2005). Accordingly,

the sentences of Major, Rhodes, and Alves are vacated and their

cases remanded for resentencing.7

Major also claims that the district court erred in increasing

his offense level under U.S.S.G. § 2K2.1(b)(4) because the firearms

were stolen. As we are vacating Major’s sentence and remanding for

resentencing, we do not reach this argument of sentencing error at

this time. S ee United States v. Akpan

, 407 F.3d 360, 377 n.62 (5th

Cir. 2005).

CONVICTIONS AFFIRMED; SENTENCES VACATED AND REMANDED FOR

RESENTENCING.