United States v. Washington

United States Court of Appeals
For the First Circuit

No. 04-1700

UNITED STATES OF AMERICA,

Appellee,

v.

GEORGE WASHINGTON, a/k/a ANTHONY LONG,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Selya and Lynch, Circuit Judges,
and Smith,* District Judge.

William Maselli for appellant.
F. Mark Terison, Senior Litigation Counsel, with whom Paula
D. Silsby, United States Attorney, was on brief, for appellee.

January 6, 2006

*
Of the District of Rhode Island, sitting by designation.
 LYNCH, Circuit Judge. George Washington, a resident of

Maine who also goes by the name Anthony Long, sold cocaine base to

a police informant in Lewiston, Maine, on April 15, 2003 and again

on April 23, 2003.

Washington was charged with two counts of distribution of

five or more grams of cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1) and 841(b)(1)(B). Washington's co-defendants Nicholas

Blake, John Brown, and Alvin Jackson were also charged with various

violations of the federal drug laws; they pled guilty. After a

jury trial, Washington was convicted of both counts; the jury

specifically found that the amount of cocaine base was five or more

grams for each count. Because Washington had prior felonies on his

record, including violent felonies and a prior conviction for

possession of cocaine with intent to distribute, he was sentenced

as a career offender, see U.S.S.G. § 4B1.1, to concurrent prison

terms of 360 months on each count. This was the minimum Guidelines

sentence; he could have been sentenced to life imprisonment. See

21 U.S.C. § 841(b)(1)(B); U.S.S.G. § 4B1.1.

I

Washington appeals from his conviction and from his

sentence. As to his sentence, he argues it should be vacated and

remanded for resentencing in light of United States v. Booker, 125

S. Ct. 738 (2005). The government has agreed to this remand, and

so we vacate the sentence and remand for resentencing.

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 This leaves Washington's challenges to his conviction.

The challenges are of two kinds: The first has to do with the

evidence. Washington argues that certain evidence was erroneously

admitted and the error was so prejudicial as to deny him a fair

trial. He also argues that the evidence, which in his view was not

credible, was insufficient to support the conviction. Second,

Washington attempts to reargue a complaint about the racial

composition of his jury panel which he had presented pro se to the

district court. A brief description of the case suffices to set

the stage.

A. Background

Washington was convicted upon the testimony of a

government informant, Toby White, to whom Washington sold over 35

grams of crack on two different days (12.8 grams on the first

occasion and 23.7 grams on the second), as well as on the testimony

of law enforcement agents and cooperating co-defendants, audiotapes

of the two transactions, and associated telephone calls.

The first transaction was on April 15, 2003 at 20 Knox

Street, Apartment 301, in Lewiston. There, while DEA Agent Genese

waited in the car, informant White purchased from Washington 12.8

grams of cocaine for $700. White had not met Washington before.

In fact, White had tried to buy cocaine earlier from co-defendant

Alvin Jackson, who had none, and who had turned to Washington, by

way of Brown and Blake, to provide a supply. Washington and

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another man, whom White understood to be Washington's cousin,

personally handed the cocaine to White. Washington also gave White

his phone number so White could "contact him directly next time"

about buying drugs. Washington and the cousin also told White that

"the next time" the price would be $800. During this transaction,

Washington went by the name "Tony." White reported the details of

the transaction to Agent Genese, including that he had obtained the

cocaine from two black men and that the one who sold him the drugs

was named "Tony."

The "next time" came soon, on April 23, 2003. White had

called Washington to buy more drugs, and they had agreed to meet on

April 23 at Washington's apartment at 67 Pierce Street in Lewiston.

This time White purchased 23.7 grams of crack cocaine from

Washington for $1300.

The principal, but not sole, defense theory was that

someone named "Tony" may very well have sold the drugs, but that

Washington was not that "Tony." There was defense evidence that

Washington was in Massachusetts on April 23 and so he could not

possibly have been the same "Tony" who sold the drugs to White that

day. But the prosecution had evidence that on April 23, shortly

after the transaction, Lewiston police officer Wayne Clifford

visited Washington's apartment on a ruse. The man whom Clifford

recognized as "Anthony Long" came to the doorway, identified

himself as Anthony Long, and confirmed that no other black man

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lived in the apartment or had stayed there that day. Clifford made

an in-court identification of the man he saw that day as the

defendant, Washington. White, too, made an in-court identification

of Washington as the man who had sold him cocaine.

Washington and others were arrested on June 3, 2003.

Washington identified himself as Anthony Long when he was arrested.

The jury was played the audiotapes of the April 15 and

April 23 transactions, as well as tapes of conversations between

Washington and White setting up the April 23 deal.

Washington focuses on the fact that the jury was also

played audiotapes of eight telephone conversations between White

and Jackson that occurred on April 13, 14, and 15. In these

conversations, White and Jackson discussed a potential drug deal,

which ultimately came to be the April 15 transaction. The two also

engaged in casual conversation about a variety of other subjects.

Washington did not participate in these conversations and was not

mentioned by either his real name or his alias. The prosecution

did not intend to introduce the tapes of the April 13 and 14

conversations, but did so because the defense wanted the tapes in

evidence.1

1
At a pretrial motion hearing, the prosecutor said:

I was originally intending to only
introduce the call on the 15th which led to
the buy because much of the conversations on
the 13th and 14th are completely unrelated to
what ultimately happens.

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 The prosecutor said that she would not object to the

admission of all the conversations, but she did object to a few

sentences at the beginning of the first conversation. In the

government's view, this portion, in which White and Jackson discuss

women in a derogatory manner, was inflammatory, might offend the

jurors, and should be excised. The defense objected to the

redaction, but not to the playing of the tapes. On the contrary,

defense counsel insisted that the calls of April 13, 14, and 15

between White and Jackson be played in their entirety.2 The

defense stated that these calls demonstrated that White was

deceitful and not credible; he was a bad person and a poseur, and

he should not be trusted in what he said. Over defense counsel's

objection, the court redacted the sentences as to which the

prosecution had objected. Both sides stated that they had no

further objections.

From my perspective, I didn't think that
I would push the admissibility of those.
However, [defense counsel] wants the jury to
hear the conversations between Mr. Jackson and
Mr. White on the 13th and 14th.
2
Defense counsel did not explicitly list each date in his
argument for admissibility, and the prosecutor had not objected to
the calls between White and Jackson on the morning of April 15.
But in the context of the entire conversation among the court, the
prosecutor, and the defense, as well as the fact that the exhibit
then under discussion contained all the conversations from April 13
through April 15, it is clear that defense counsel's argument that
"the jury should hear [the non-drug-related conversation]" and that
he "want[ed] it all in" referred to all three dates, not just April
13 and 14.

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 At trial, the slightly redacted tapes of the April 13,

14, and 15 conversations between White and Jackson were played for

the jury, with defense counsel interjecting expressly to say that

he had no objection and "[t]hat's fine."

B. Challenges to Admission of Evidence

Most of Washington's evidentiary objections were waived

or forfeited; one, described later, was preserved.

1. Waived Challenge to Telephone Calls

It will be no surprise that we reject Washington's

appellate claims of error based on those audiotapes which the

defense had admitted into evidence for its own tactical reasons.

Washington now argues on appeal that the conversations between

White and Jackson leading up to the sale on April 15 "established

an unsavory prejudicial tone which could not but damage

[Washington] before the jury." The tapes were admitted because

Washington's trial counsel made a deliberate strategic choice that

the tapes should be admitted to establish an unsavory tone, which

would damage White, the government's chief witness, before the

jury. This is classic waiver, and we will not even consider the

argument. See United States v. Olano, 507 U.S. 725, 732-33 (1993)

(stating that there is no error where the deviation from a legal

rule has been waived, and defining waiver as "the 'intentional

relinquishment or abandonment of a known right'" (quoting Johnson

v. Zerbst, 304 U.S. 458, 464 (1938))); United States v. Mitchell,

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85 F.3d 800, 807-08 (1st Cir. 1996) (where defense affirmatively

agreed to government's proposed use of evidence, waiver occurred,

and plain error review does not apply).

2. Forfeited Challenges to Various Evidence

Several other pieces of evidence now resurrected for

appeal were also admitted without objection, and so the objections

were forfeited. See Olano, 507 U.S. at 731, 733; Mitchell, 85 F.3d

at 807. These forfeited claims involve evidence of a prior arrest,

statements of co-defendants, and the tape recording of the April 15

transaction. For this court to correct a forfeited error, there

must be an error, it must be plain, it must affect substantial

rights, and it must seriously affect the fairness, integrity, or

public reputation of judicial proceedings. Olano, 507 U.S. at 732.

On appeal, Washington invokes the plain error rule, to no avail.

Washington argues that it was plain error to allow a

police officer who had arrested him to testify about an earlier

arrest and to explain that that arrest was for something other than

the inspection sticker violation which caused the officer to stop

Washington's car. The first reference to an arrest came during

direct examination by the prosecution.3 Defense counsel did not

3
On direct examination, Officer Clifford testified that about
a month after visiting Washington's apartment on a ruse on April
23, he "made contact with Mr. Long, reference a traffic stop where
he was arrested for some traffic violations. And he was again
. . . positively identified by me as the same subject" with whom
Clifford had spoken on April 23. The prosecution asked whether
this was an "expired inspection sticker stop," and Clifford said it

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object during direct examination, move to strike during cross

examination,4 or seek a limiting instruction.

Washington asserts that Officer Clifford's testimony

about the arrest was prior bad acts evidence, and that it was

impermissible under Fed. R. Evid. 404(b), which provides, in part,

that "[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." Such evidence may, however, "be admissible

for other purposes, such as proof of . . . identity." Id. Prior

bad acts evidence offered for these other purposes must be

"specially probative of an issue in the case . . . without

including bad character or propensity as a necessary link in the

inferential chain." United States v. Frankhauser, 80 F.3d 641, 648

(1st Cir. 1996). Even if the evidence has special relevance (such

was. He also said that the person stopped -- identified in court
as the defendant -- gave his name as Anthony Long.
4
Washington also takes issue with a statement elicited by the
defense. On cross-examination, defense counsel said, "Now when you
arrested this person you knew to be Anthony Long about a month
later for an inspection sticker violation, did you -- " whereupon
Clifford interjected, "He wasn't actually arrested for the
inspection violation, that was just the reason for the stop."
Counsel replied "I see," and he continued with his original line of
questioning. There was no motion to strike. On appeal, Washington
argues that Clifford's interjection exacerbated the problem, but he
does not adequately explain how there was any unfair prejudice, see
United States v. Varoudakis, 233 F.3d 113, 121-23 (1st Cir. 2000)
(articulating prejudice analysis as applied to prior bad act
evidence not barred by Fed. R. Evid. 404(b)), or how the court's
failure to strike the clarification sua sponte amounted to plain
error under Fed. R. Evid. 403 or 404(b).

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as proof of identity), it is inadmissible if its probative value is

substantially outweighed by the danger of unfair prejudice. Id.

The evidence of the stop and arrest was material to

identity and was offered for precisely that purpose: the jury heard

that Washington had been stopped and arrested under the name

"Anthony Long." Officer Clifford's testimony connected Washington

not only to 67 Pierce Street, but also to the name "Anthony Long"

and its variant, "Tony." "[E]vidence of prior bad acts may be

probative even when it is relevant to an issue that the defendant

does not contest," United States v. Varoudakis, 233 F.3d 113, 121

(1st Cir. 2000), and all the more so here, where Washington's

defense was largely based on a claim of mistaken identity.

Washington also argues on appeal that there was plain

error in the admission of testimony about statements made by some

of his co-venturers. He argues that three unobjected-to portions

of White's testimony constituted inadmissible hearsay:5 White

testified that Jackson told him he had no drugs at the moment and

would find another source; that to facilitate the April 15

transaction, Brown told Agent Genese that Jackson was "upstairs" at

10 Knox Street, that Brown would go to 20 Knox Street, Apartment

301, and that Genese should send Jackson over there when Jackson

5
Washington also points to a fourth item. He claims White
testified that he told Agent Genese that he had met with two
individuals concerning the cocaine transaction: Washington and his
cousin. For this proposition, Washington cites only to a part of
the record containing Genese's, not White's, testimony.

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came down; and that Blake told White he would set up the deal with

another supplier -- Washington.6

Under Fed. R. Evid. 801(d)(2)(E), "a statement by a

coconspirator of a party during the course and in furtherance of

the conspiracy" is "not hearsay." Washington correctly notes that

no conspiracy was charged. From this, he argues that the evidence

was not admissible, although he concedes that "some of these

statements would have been admissible in the context of an alleged

conspiracy." Cf. Pinkerton v. United States, 328 U.S. 640, 646-47

(1946) (stating that acts in furtherance of a conspiracy are

attributable to other members of the conspiracy for purposes of

holding them responsible for the substantive offense).

But we have already rejected the argument that a

Pinkerton theory must be expressly charged in the indictment:

It is well established that the applicability
of the "co-conspirator" exception to the
hearsay rule is not conditioned on the
presence of a conspiracy count in the
indictment. Rather, the out-of-court
statements of one "partner in crime" will be
admissible against a confederate when made in
furtherance of a joint criminal venture and
when there is sufficient evidence independent
of these statements to indicate the existence
of such a venture.

6
Washington's characterization of White's testimony about
Blake is not entirely accurate. White testified not that Blake
said he would set up a deal, but rather that White asked Blake
"what he could do for me, how much it was going to be, and how long
before the drugs was going to be there," and that White then
overheard Blake in fact setting up a deal by telephone.

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Ottomano v. United States, 468 F.2d 269, 273 (1st Cir. 1972); see

also United States v. Candelaria-Silva, 162 F.3d 698, 706 (1st Cir.

1998); United States v. Campa, 679 F.2d 1006, 1011 (1st Cir. 1982).

This court has treated statements of joint venturers in a criminal

scheme as equivalent to statements of co-conspirators for purposes

of application of Fed. R. Evid. 801(d)(2)(E). See, e.g., United

States v. Kaplan, 832 F.2d 676, 685-87 (1st Cir. 1987); United

States v. Fortes, 619 F.2d 108, 117 (1st Cir. 1980).7 It was not

plain error to admit the statements of Jackson, Brown, and Blake --

all defendants in this case -- as statements of joint venturers in

furtherance of the joint criminal venture of the April 15 sale of

cocaine base.

Washington also challenges, on appeal, the admission of

the tape of the April 15 transaction itself.8 Washington's

arguments as to each statement are so factually sparse and so

legally conclusory that they amount to waiver -- there is simply no

7
The history of the Rule reflects this understanding. See
Fed. R. Evid. 801 advisory committee's note ("[T]he rule is meant
to carry forward the universally accepted doctrine that a joint
venturer is considered as a coconspirator for the purposes of this
rule even though no conspiracy has been charged." (citing S. Rep.
No. 93-1277, as reprinted in 1974 U.S.C.C.A.N. 7051, 7073)).
8
According to Washington's summary of the tape, Agent Genese
narrates the action visible from the car, White and Jackson discuss
Jackson's time in jail, Jackson tells Genese that "he" (apparently
"Tony") wants $700 for the cocaine, Genese has an annoyed reaction
to that news, Brown and Blake appear, White makes a comment to
Genese identifying Blake as "Black and Puerto Rican" and "the hook
up," and White and "Tony" converse.

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sufficiently developed claim of error for this court to review.

See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). In

any event, there was no objection at trial on the grounds of

hearsay or unfair prejudice, so, at most, we review for plain

error. We find none.9

3. Preserved Challenge to Testimony

We turn last to the evidentiary challenge that Washington

did preserve: he raised a hearsay objection to Agent Genese's

testimony that White told him on April 15 that the name of the

person from whom he had purchased cocaine was "Tony." We review

for abuse of discretion the district court's decision to admit this

evidence over the hearsay objection. See United States v. Alzanki,

54 F.3d 994, 1008 (1st Cir. 1995).

Under Fed. R. Evid. 801(d)(1)(B), a prior statement by a

witness is "not hearsay" if "[t]he declarant testifies at the trial

. . . and is subject to cross-examination concerning the statement,

and the statement is . . . consistent with the declarant's

testimony and is offered to rebut an express or implied charge

9
Washington generally condemns the tape as containing
irrelevant, prejudicial, and hearsay evidence. It was not plain
error to admit, as statements of joint venturers in furtherance of
the joint criminal venture, the statements Washington portrays as
hearsay. See Fed. R. Evid. 801(d)(2)(E). And the prejudice of the
statements with which Washington takes issue is not self-evident.
If any of the statements on the tape were even prejudicial, there
was no plain error in finding that their probative value (in
providing context for the April 15 transaction) was not
substantially outweighed by the danger of unfair prejudice. See
Fed. R. Evid. 403.

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against the declarant of recent fabrication or improper influence

or motive." When defense counsel objected to Genese's testimony

about White's prior statement, the prosecution invoked this rule.

Specifically, the prosecution argued that in light of the previous

cross-examination of White, in which defense counsel had suggested

that White was lying when he gave testimony on direct examination,10

Genese should be allowed to testify about White's prior consistent

statement. The district court agreed.

On appeal, Washington argues that "there was never an

express or implied charge of fabrication as to whether it was

'Tony' who sold the cocaine to White: the only aspect challenged

was whether 'Tony' was in fact . . . George Washington." The

district court agreed with the prosecution that there was a charge

of fabrication which went to all of White's testimony, including

his testimony about the name of the drug dealer.11 This was a fair

10
On direct examination, White had testified that one of the
men in Apartment 301 -- the one who, with a cousin, ultimately sold
him the cocaine -- was introduced to him as "Tony." White had also
made an in-court identification of that person as the defendant,
Washington. White also testified that as soon as he left the
apartment on April 15, he told Genese that the two men from whom he
had purchased the cocaine were coming downstairs right behind him,
and that "a few seconds later, Tony and his cousin" did indeed exit
20 Knox Street.
11
On cross-examination of White, defense counsel implied that
part of White's motivation for working with the DEA on drug cases
was to get the DEA's help with other charges pending against him
and to get money. After White confirmed that he'd already been
paid more than $18,000 for his work for the DEA, counsel asked,
"[n]ow you would lie, wouldn't you, about pending cases in order to
keep working for the DEA?" Counsel then engaged in a lengthy

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interpretation of the cross-examination. Defense counsel had

suggested that the entirety of White's testimony on direct

examination had been false, implying not only that White did not

get a good look at the "real" drug dealer, but also that White was

a habitual liar and that he had a motive to lie about anything and

everything in order to please the DEA. There was no abuse of

discretion under Fed. R. Evid. 801(d)(1) in allowing Genese to

testify about White's prior statement to the effect that one of the

men who sold the cocaine was named "Tony."

C. Challenge to Sufficiency of the Evidence

Washington argues that insufficient credible evidence

supported the jury verdict finding him guilty on two counts of

possessing cocaine with intent to distribute. We treat as

preserved Washington's claim that the evidence was insufficient as

to both the April 15 and April 23 transactions.12 We review de

novo, see United States v. Rodriguez-Casiano, 425 F.3d 12, 14 (1st

course of questioning about White's history of dishonesty and
criminality, and got White to agree that various things he had said
or done in the past had involved lies. Counsel then asked White to
confirm that during the transactions on April 15 and 23, White had
been with "this person you called Tony for a very, very short
period of time." White agreed, and he also agreed that during part
of the April 23 transaction, he had been counting money and
weighing and inspecting drugs.
12
Washington arguably preserved the claim only as to the April
15 count, but the government does not press the point, and any
failure to preserve is without effect, given that Washington's
argument fails even under the more searching standard of review for
preserved claims.

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Cir. 2005), inquiring whether, "after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt," United States v. Casas, 356 F.3d 104, 126 (1st

Cir. 2004) (quoting United States v. Henderson, 320 F.3d 92, 102

(1st Cir. 2003)). All "reasonable evidentiary inferences" are to

be drawn "in harmony with the verdict," and "all issues of

credibility" are to be resolved "in the light most favorable to the

government." Id.

The prosecution's evidence has already been detailed, and

it is more than adequate to support the conviction. Washington

argues that White was "highly impeached" and that the testimony of

various witnesses was inconsistent in "critical aspects," but the

jury was entitled to believe the basic story testified to by each

of the government's witnesses.

As for White's credibility, defense counsel had ample

opportunity to, and did in fact, point out his receipt of

government money and his history of questionable behavior. The

jury nevertheless found White credible, and this "plausible

credibility determination[] cannot be disturbed on appeal." United

States v. Soto-Beniquez, 356 F.3d 1, 52 (1st Cir. 2003); see also

United States v. Torres-Galindo, 206 F.3d 136, 140 (1st Cir. 2000)

(rejecting defendant's argument that the witnesses were "bad people

who should not be believed," where "the jury was presented with

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substantial evidence of the criminal histories of [those

witnesses], including ample cross-examination"). The jury was also

entitled to believe the other government witnesses' "version of the

facts, at least in its core elements." Torres-Galindo, 206 F.3d at

140. The testimony of the cooperating co-defendants was

corroborated at trial, and Washington has, at most, pointed out

minor inconsistencies that fall far short of rendering the

testimony facially incredible. See id. (stating that even "the

uncorroborated testimony of a cooperating accomplice may sustain a

conviction so long as that testimony is not facially incredible").

D. Challenge to Composition of the Jury

We do not discuss the merits of the jury composition

claim, which was not properly raised before the district court.13

While counsel did deliver Washington's pro se challenge to the

13
Although represented by counsel at trial, Washington
himself, at the beginning of the jury selection process, presented
a written objection to the jury array by having his attorney give
the court a letter he had written. In the letter, Washington
argued that the jury selection process had not resulted in a "fair
and representative cross-section" of the community, because there
were no African Americans included in the jury array, although
approximately 8000 African Americans live in Cumberland County,
Maine. Washington is African American.
The magistrate judge conducting jury selection at first
accepted the written objection. Later, the trial court struck the
objection because it was filed by appellant pro se at a time when
he was already represented by counsel. The court stated that
Washington "has a right to be represented by a lawyer or a right to
proceed pro se, [but] he does not have the right to do both
simultaneously." The court ordered that Washington "proceed
through his lawyer unless and until he is permitted to proceed
without a lawyer." Washington's attorney declined to pursue an
objection to the jury selection process.

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court, it was clear he did so as a mere accommodation to his

client. Counsel's refusal to file the objection as counsel of

record no doubt reflected an assessment of counsel's ethical

responsibilities not to file unsupported motions.

Washington was represented at trial by counsel. He did

not seek leave to proceed in some sort of hybrid arrangement with

counsel or to proceed entirely pro se. Cf. United States v.

Betancourt-Arretuche, 933 F.2d 89, 92 (1st Cir. 1991) (waiver of

right to counsel must be, inter alia, knowing and intelligent as

well as clear and unequivocal). At most, his filing of a pro se

motion (in fact, more than one) while he was still represented by

counsel -- and evidently happily so -- constituted a sort of

implicit request to be treated as co-counsel.

But district courts have "discretion to deny hybrid

representation outright." United States v. Nivica, 887 F.2d 1110,

1121 (1st Cir. 1989); see also Betancourt-Arretuche, 933 F.2d at 95

(stating that defendant could have "utilize[d] some sort of hybrid

representation if it were approved by the court" (emphasis added)).

In Nivica, this court explained:

An indigent defendant has a sixth amendment
right to appointed counsel, and a
corresponding right to proceed without
counsel, but these are mutually exclusive. A
defendant has no right to hybrid
representation. That is not to say that
hybrid representation is foreclosed; rather,
it is to be employed sparingly and, as a rule,
is available only in the district court's
discretion.

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887 F.2d at 1121 (citations omitted).

Moreover, had Washington sought leave to act as co-

counsel, the district court would have had discretion to "place

reasonable limitations and conditions upon the arrangement." Id.;

see also United States v. Gomez-Rosario, 418 F.3d 90, 96-99 (1st

Cir. 2005). In this case, the district court was not required to

accept Washington's pro se motion at all. The court acted within

its discretion in striking the motion.

Whether a jury has been drawn from a fair cross-section

of the community is a complicated question, one that requires

sensitive analysis of many facts. See, e.g., In re United States,

426 F.3d 1, 9 (1st Cir. 2005); United States v. Royal, 174 F.3d 1,

6 & n.2 (1st Cir. 1999) (discussing elements of prima facie case of

violation of fair cross-section requirement and stating that

government can rebut prima facie case by another showing). As

Washington himself concedes, his "contentions were never . . .

subjected to proof," and his motion offered none.

II

Washington's conviction is affirmed. His sentence is

vacated and the matter is remanded under Booker, 125 S. Ct. 738, to

the district court for resentencing. We intimate no view about the

appropriate sentence to be imposed on remand.

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