[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
__________________________ May 5, 2005
THOMAS K. KAHN
No. 03-14285 CLERK
Non-Argument Calendar
_________________________
D. C. Docket No. 02-00554-CR-3-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ENRIQUE ZERDUCHE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(May 5, 2005)
Before EDMONDSON, Chief Judge, HULL and WILSON, Circuit Judges.
PER CURIAM:
Defendant-Appellant Enrique Zerduche appeals his convictions for drug
trafficking, in violation of 21 U.S.C. §§846 and 841(a)(1), (b)(1)(B)(vii), and the
121-month sentence imposed. No reversible error has been shown; we affirm.
Defendant contends that the district court committed reversible error when it
removed a juror and replaced her with an alternate over the objection of counsel.
After Defendant’s trial had began and the testimony of the first witness was heard,
the district court judge sua sponte discussed the behavior of one of the jurors with
counsel for the government and the defense. The judge stated that he was
extremely distracted by the fidgeting and squirming of one juror and inquired
whether they, too, were bothered. The government responded affirmatively and
noted that the conduct had begun almost immediately. Defense counsel had
noticed nothing. The court also stated that it did not believe this juror was “paying
any attention.” Defense counsel suggested that it may be appropriate to admonish
the jury to pay attention, but it would otherwise object to excusing the juror on
that basis.1 The court declared, for the record, that it had
observed this juror continuously yawning, squirming,
moving around, even getting up out of her chair, putting
1
Counsel for a co-defendant also objected to excusing the juror without further inquiry of the
juror or some general instruction to the jury.
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her head down between her legs, not paying attention to
the witness. She’s a distraction, and I believe that it’s in
the interests of both the government and the defense that
this juror be excused. And I’m going to excuse her and
substitute an alternate.
The government stated that it would research the issue of juror discharge over
lunch, but the court proceeded immediately to discharge the juror.
A district court’s decision to remove a disruptive juror during trial is
reviewed for abuse of discretion. See United States v. Fajardo, 787 F.2d 1523,
1525-26 (11th Cir. 1986). Fed.R.Crim.P. 24(c)(1) allows the court to replace a
juror who is “unable to perform” or “disqualified from performing” his duties with
an alternate. “The trial court’s discretion in removing a juror ‘is not to be disturbed
absent a showing of bias or prejudice to the defendant ... or to any other party.’”
Id. at 1525 (citation omitted). We apply an abuse of discretion standard of review
to the decision to excuse a disruptive juror for good reason: “the degree of
disruption is gauged better by first-hand impressions rather than the review of a
cold record.” Id. at 1526. In this context, prejudice includes discharge of a juror
“‘without factual support, or for a legally irrelevant reason.’” Id. at 1525 (citation
omitted).
Defendant complains that the district court removed the juror without
making inquiry of the juror in question on the nature of the problem, without
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questioning other jurors to see if they were distracted by the conduct the court
observed, or without seeking to correct the problem with instructions to the jury
on the issue. According to Defendant, without first engaging in one or more of
these acts, the district court could have no factual support for removal.
The factual support for the district judge’s decision -- the disruptive
behavior of the juror observed by the court -- was stated for the record. We cannot
say that the continuous acts of “yawning, squirming, moving around, getting up
out of her chair, putting her head down between her legs, not paying attention to
the witness” that were observed and found by the court to be extremely distracting
fail to provide adequate factual support for removal. See Fajardo, 787 F.2d at
1626 (upholding removal of juror for disruptive conduct consisting of blowing
nose, loudly snorting, and wiping nose with sleeve). And a trial judge who
observes disruptive juror behavior and determines such behavior is distracting is
under no obligation to make further inquiry. See United States v. Bradley, 173
F.3d 225, 230 (3rd Cir. 1999) (district court had legitimate basis to dismiss juror,
without further inquiry, where court itself noticed juror sleeping).
The record discloses -- and Defendant alleges -- no bias toward either party
on the part of the judge in effecting the removal. Defendant shows no bias or
prejudice sufficient to disturb the district court’s exercise of discretion.
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Defendant also raises for the first time on appeal a Blakely-based
constitutional challenge to his sentence, Blakely v. Washington, 124 S.Ct. 2531
(2004). Since the filing of briefs in this appeal, the Supreme Court extended
Blakely to the federal sentencing guidelines. United States v. Booker, 125 S.Ct.
738 (2005). Under Blakely (now Booker), Defendant contends that the factual
allegations underlying his sentencing enhancements for obstruction of justice and
possessing a dangerous weapon during the offense were neither charged in the
indictment nor proved to the jury beyond a reasonable doubt. He also argues that
the quantity of marijuana attributed to him at sentencing was not alleged in the
indictment. Because Defendant raises this issue for the first time on appeal, we
review his claim only for plain error. See United States v. Cotton, 122 S.Ct. 1781,
1785 (2002); United States v. Duncan, 400 F.3d 1297, 1301 (11th Cir. 2005).
In United States v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005), petition for
cert. filed (U.S. Feb 23, 2005) (No 04-1148), we recognized that an enhancement
imposed under a mandatory guidelines system based on facts found by the judge
that went beyond those admitted by the defendant or found by the jury constituted
Booker error. Id. at 1298-99. And, because of Booker, we concluded that that
error is now plain. Id. at 1299.
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But more than error that is plain must be shown before we may exercise our
discretion to correct; the complainant must also show that the plain error affects
substantial rights. United States v. Olano, 113 S.Ct. 1770, 1777-78 (1993). And
as Rodriguez explains, the plain error in this context is not the use of extra-verdict
enhancements; it is “the use of extra-verdict enhancements to reach a guidelines
result that is binding on the sentencing judge.” Id. at 1301. Rodriguez failed to
show the prejudice required for plain error relief: he could show no “reasonable
probability of a different result if the guidelines had been applied in an advisory
instead of binding fashion.” Id.
Defendant’s claim fails for the same reason: Defendant has not met his
burden of showing that the Booker error in his case affected the outcome of his
sentencing. See id. at 1301, 1306. Defendant proffers nothing to show that a
reasonable probability exists that the sentencing judge would have imposed a more
lenient sentence had the guidelines been applied in an advisory and non-binding
fashion. See id. at 1301.
AFFIRMED.
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