[DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 10-11318         ELEVENTH CIRCUIT
                         Non-Argument Calendar        JUNE 2, 2011
                       ________________________        JOHN LEY
                                                        CLERK
                D.C. Docket No. 4:09-cr-00030-RH-WCS-1

UNITED STATES OF AMERICA,

                                           lllllllllllllllllllllPlaintiff-Appellee,


                                  versus


ZEBEDIAH KYLER,

                                           lllllllllllllllllllllDefendant-Appellant.

                      ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                            (June 2, 2011)

Before EDMONDSON, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
      Zebediah Kyler appeals his convictions for (1) armed bank robbery, 18

U.S.C. § 2113(a) and (d) (Counts Two and Four); (2) brandishing a firearm during

the bank robberies, 18 U.S.C. § 924(c)(1)(A)(ii) (Counts Three and Five); and (3)

money laundering, 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2 (Count Six). Kyler argues

that the district court plainly erred in allowing, without objection, a government

expert, Richard Vorder Bruegge (“Bruegge”), to testify, based on a technique

called “reverse projection photogrammetry,” that the bank robber in the

surveillance footage had the same approximate height as Kyler. After a thorough

review of the record and the parties’ briefs, we affirm.

      We normally review a district court’s decision to admit expert testimony for

an abuse of discretion. United States v. Brown, 

, 1264–65 (11th

Cir. 2005). “However, it is well-settled that where, as here, a defendant fails to

preserve an evidentiary ruling by contemporaneously objecting, our review is only

for plain error.” United States v. Turner, 

, 1275 (11th Cir. 2007).

“To demonstrate plain error, the defendant must show that there is (1) error, (2)

that is plain and (3) that affects substantial rights.” 

(quotation marks

omitted). We have the discretion to remedy such errors only if they seriously

affect the fairness, integrity, or public reputation of judicial proceedings. 

affect a substantial right of a party if they have a ‘substantial influence’

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on the outcome of a case or leave ‘grave doubt’ as to whether they affected the

outcome of a case.” 

omitted). “It is the law of this circuit

that, at least where the explicit language of a statute or rule does not specifically

resolve an issue, there can be no plain error where there is no precedent from the

Supreme Court or this Court directly resolving it.” United States v. Lejarde-Rada,

, 1291 (11th Cir. 2003).

      Kyler argues that the district court neglected to scrutinize Bruegge’s expert

testimony as required by Daubert v. Merrell Dow Pharms., Inc., 

, 

(1993). Under Federal Rule of Evidence 702, expert testimony is

admissible if (1) the expert is qualified to testify regarding the subject matter of his

testimony; (2) the methodology that the expert used to reach his conclusion is

“sufficiently reliable as determined by the sort of inquiry mandated in Daubert”;

and (3) the expert’s testimony will assist the trier of fact in understanding the

evidence or in determining a fact at issue. United States v. Frazier, 

,

1260 (11th Cir. 2004) (en banc) (quotation marks omitted). Before permitting an

expert to testify, Daubert requires the district court to make a preliminary

determination as to whether the expert’s methodology is reliable. 

. We have recognized a non-exclusive list of factors for the district

court to consider in conducting the Daubert analysis:

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      (1) whether the expert’s theory can be and has been tested; (2) whether
      the theory has been subjected to peer review and publication; (3) the
      known or potential rate of error of the particular scientific technique;
      and (4) whether the technique is generally accepted in the scientific
      community.

(quotation marks omitted). But these factors are only

general guidelines, and the trial judge has “considerable leeway in deciding in a

particular case how to go about determining whether particular expert testimony is

reliable.” Kumho Tire Co. v. Carmichael, 

, 152, 

,

1176 (1999).

      Kyler fails to establish plain error because he points to no case of this Court

or the Supreme Court rejecting reverse projection photogrammetry as not

sufficiently reliable under Daubert. See 

. To the

contrary, while this Court has never addressed the reliability of reverse projection

photogrammetry in a published case, the Ninth Circuit has upheld the admission of

expert testimony based on photogrammetry as sufficiently reliable under Daubert.

United States v. Quinn, 

, 1464–65 (9th Cir. 1994). To the extent that

Kyler argues that the district court plainly erred in failing to hold a Daubert

hearing sua sponte, we note that although “a district court abuses its discretion

where it fails to act as a gatekeeper,” 

, a formal Daubert

hearing is not required in every case, United States v. Hansen, 

,

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1234 (11th Cir. 2001) (“Daubert hearings are not required, but may be helpful in

complicated cases involving multiple expert witnesses.” (quotation marks

omitted)). The district court therefore did not plainly err in concluding that

Bruegge’s testimony was admissible under Rule 702.

      Kyler also argues that Bruegge’s testimony should have been excluded

under Federal Rule of Evidence 403 because its probative value was outweighed

by the danger of unfair prejudice and confusion. Under Rule 403, “evidence may

be excluded if its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury.” In this case,

Bruegge testified that the robber was “[s]lightly above” 5 feet 10 and a half inches

or 5 feet 11 inches in height, which was consistent with Kyler’s height of six feet.

Because one of the central issues at trial involved the identity of the bank robber,

we cannot say that the district court plainly erred in concluding that any

prejudicial impact of Bruegge’s testimony did not substantially outweigh its

probative value under Rule 403.

      Finally, Kyler asserts that Bruegge’s testimony invaded the province of the

jury. Kyler fails, however, to offer any explanation or argument in support of this

contention in his brief. We therefore conclude that Kyler has abandoned this

claim. See United States v. Cunningham, 

, 1344 (11th Cir. 1998)

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(finding that the defendant abandoned an issue by “offer[ing] no argument on th[e]

issue on appeal”).

      For all of these reasons, we affirm Kyler’s convictions.

      AFFIRMED.




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