[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                      FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              January 6, 2006
                             No. 04-10903                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                 D. C. Docket No. 03-00343-CR-T-30-MSS


UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

GERALD WRIGHT,
a.k.a. Fella,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                            (January 6, 2006)


Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:
      Gerald Wright (“Wright”), a federal prisoner convicted of two drug-related

offenses, appeals his convictions and sentence of 360 months of imprisonment.

After a thorough review of the record and Wright’s arguments, we AFFIRM.

                                     I. BACKGROUND

      On 13 August 2003, a federal grand jury indicted Wright, along with

codefendants Terrell Wright (“Terrell”)1 and George Pearson, Jr. (“Pearson”), for

various offenses related to the possession and distribution of cocaine and cocaine

base, or “crack” cocaine. Specifically, the indictment charged Wright with: (1)

conspiracy to possess with intent to distribute fifty grams or more of a mixture

containing a detectable amount of cocaine base and a quantity of cocaine, in

violation of 21 U.S.C. § 846 (“Count 1”); (2) possession with intent to distribute

fifty grams or more of a mixture containing a detectable amount of cocaine base

and a quantity of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii)

(“Count 4”); and (3) possession of a firearm by a convicted felon, in violation of

18 U.S.C. § 922(g) (“Count 5”). The indictment indicated that the alleged criminal

activity which formed the basis for Count 1 took place from an unknown date

continuing up to and through 18 July 2003. The activity which supported Counts 4

and 5 allegedly took place on or about 20 February 2003.



      1
          Terrell Wright is Gerald Wright’s brother.

                                                 2
       At trial,2 the government began its case by offering the testimony of

Detective Ronald Heck, a police officer in the vice department of the City of

Clearwater Police Department (“CPD”). According to Heck, in October 1997, a

confidential informant suspected of misdemeanor drug activity indicated that he

would operate as an informant for the police. Particularly, he indicated that he

could purchase drugs from Gerald Wright. Accordingly, Heck testified that he

coordinated two controlled drug purchases by the confidential informant at 1576 S.

Greenwood Avenue, a residence allegedly occupied by Wright.3 Following the

two drug transactions, Heck obtained a search warrant for Wright’s residence. The

search warrant was executed and, in a room occupied by Wright and Terrell, CPD

officers discovered twenty-four grams of crack cocaine, firearms, $1200 in cash,

and Wright’s state identification card. According to Heck, Wright admitted to

cocaine possession after the 1997 raid. Wright was subsequently convicted of

possession with intent to distribute cocaine in Florida state court. Heck’s

testimony about the 1997 investigation was admitted over counsel’s objection on




       2
       Terrell and Pearson pled guilty to the charges in the indictment. Accordingly, the
government proceeded to trial against Wright.
       3
        The residence was owned by George Pearson, Sr., who referred to Wright as his nephew
although there was no biological connection between them. The record demonstrated that
Wright, Terrell, and Pearson occupied and/or frequented the residence intermittently since 1993.

                                               3
relevance and Federal Rule of Evidence 404(b) grounds.4

       Next, the government offered the testimony of several CPD officers who

recounted their investigation of drug activity at the Greenwood residence from

December 2002 to February 2003. The officers testified that they coordinated

several controlled purchases of crack cocaine at the residence during this time

period. At each of these controlled purchases, the officers testified that their

confidential informants were given crack cocaine by either Terrell or Pearson. On

one occasion, however, in January 2003, a CPD officer testified that Wright was

present for the controlled purchase. According to the officer, he and a confidential

informant approached Wright and Pearson and asked them, “Are you tight?” R4 at

31. The officer testified that this was slang for asking whether Wright and Pearson

had crack cocaine they were willing to sell. According to the officer, both Wright

and Pearson indicated they had crack cocaine to sell, and the purchase was then

executed. Based on these controlled buys, CPD officers obtained a search warrant

of the Greenwood residence and discovered in Wright’s bedroom, inter alia, crack

cocaine, baggies containing cocaine powder, a firearm, a digital scale, Wright’s

state identification card, and correspondence addressed to Wright at the



       4
         Despite overruling counsel’s objections, the district court noted that it would reserve its
ruling on whether Heck’s testimony should be excluded pursuant on Federal Rule of Evidence
403.

                                                 4
Greenwood address. Subsequent analysis confirmed that Wright’s fingerprints

were on some of the baggies and containers holding cocaine and crack cocaine.

      Next, the government offered the testimony of Christopher Goodloe and

Jonathan Wade. Both were in prison on unrelated drug charges and had entered

into plea agreements to assist in the prosecution of drug-related crimes. Both

Goodloe and Wade testified that Wright had sold them crack cocaine on several

occasions. In addition, Goodloe testified that Pearson and Terrell were street level

dealers who received their supply from Wright.

      Finally, the government offered the testimony of Matthew Desjardins, a

police officer in the Largo Police Department. Desjardins testified that in July

2003, he and other officers coordinated and videotaped a controlled buy at a hotel

involving a confidential informant, Pearson, and Terrell. Counsel for Wright

objected to Desjardins’s testimony about what was said during the drug transaction

on hearsay grounds, but the district court overruled the objection. Counsel also

objected to the videotape coming into evidence and being shown to the jury.

Particularly, counsel argued that he believed the tape portrayed Terrell mentioning

“my brother” and crack cocaine, and therefore the tape would implicate Wright

without affording him the opportunity to cross-examine Terrell about his

statements. Because the government noted that Pearson made the comment about



                                          5
“my brother,” however, the district court overruled the objection and allowed the

tape into evidence.

       After concluding the examination of Desjardins, the government rested.

Counsel for Wright then moved for judgment of acquittal on the grounds that the

government had not established the prima facie case for the charges in the

indictment. The district court denied the motion. Following the presentation of

Wright’s defense, counsel for Wright renewed the motion for judgment of

acquittal. The motion was denied and the district court proceeded to instruct the

jury. Particularly, the district court instructed the jury that:

       Count One charges that the Defendant knowingly and willfully
       conspired with others to possess with intent to distribute or distribute
       a mixture or substance containing a detectable amount of cocaine base
       or cocaine. Count Four charges . . . that the Defendant possessed with
       intent to distribute a mixture or substance containing a detectable
       amount of cocaine base or cocaine.

R1-79 at Jury Instruction No. 11 (emphasis added). The court also explained that,

due to the fact that the indictment charged that Wright conspired to possess with

intent to distribute both cocaine base and cocaine, the indictment actually charged

that the coconspirators conspired to commit “two separate, substantive crimes or

offenses.” 

Instruction No. 14. The court further instructed that it was

not necessary for the government to prove that Wright conspired to commit both

offenses, but rather it would be sufficient if the government proved beyond a

                                             6
reasonable doubt that Wright willfully conspired to commit one of the offenses.

       During deliberations, the jury informed the district court that it was

deadlocked on the conspiracy count. The district court consequently read the jury

an Allen charge5 and ordered the jury to continue deliberations. Subsequently, the

jury returned a verdict and found Wright guilty on Counts 1 and 4 and not guilty

on Count 5. A presentence investigation report (“PSI”) set Wright’s base offense

level at 38 because the offense involved more than 1.5 kilograms or more of

cocaine base. The PSI also recommended a two-level enhancement because police

found a firearm in Wright’s bedroom, which resulted in a sentencing range of 360

months to life imprisonment. After adopting the findings in the PSI, the district

court sentenced Wright to 360 months of imprisonment on each count, to be served

concurrently.

       Wright makes five arguments on appeal. First, he argues that the district

court improperly admitted: (1) Heck’s testimony regarding the 1997 investigation

of Wright; and (2) the 2003 videotape depicting Wright’s coconspirators engaged

in a drug transaction. Second, Wright argues that the district court materially

altered the charges in the indictment by its jury instructions. Third, Wright argues



       5
          See Lowenfield v. Phelps, 

, 237-39, 

, 550-52 (1987)
(describing the district court practice of giving a supplemental jury instruction to a deadlocked
jury that was first approved in Allen v. United States, 

, 

(1896)).

                                                 7
that the district court erred by denying his motions for judgment of acquittal

because insufficient evidence supported his convictions. Fourth, Wright contends

that, by enhancing his sentence based on facts not found by the jury, the district

court violated his Sixth Amendment rights pursuant to Blakely v. Washington, 542

U.S. __, 

(2004) and United States v. Booker, 543 U.S. __, 125 S.

Ct. 738 (2005). Fifth, Wright argues that substantial omissions in the record

preclude meaningful appellate review and necessitate a new trial.

                                 II. DISCUSSION

A. District Court’s Evidentiary Rulings

      First, Wright argues that the district court erred by admitting (1) Heck’s

testimony about his 1997 investigation of Wright’s drug-related activity and (2) a

2003 videotape depicting a controlled purchase of drugs from Pearson and Terell.

We review the district court’s rulings on the admissibility of evidence for an abuse

of discretion. United States v. Jiminez, 

, 1249 (11th Cir. 2000).

“An evidentiary ruling will stand unless the complaining party has shown a

substantial prejudicial effect.” United States v. Breitweiser, 

, 1254

(11th Cir.) (citations omitted), cert. denied, 

, 

(2004).

      Pursuant to the Federal Rules of Evidence, relevant evidence “may be

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



                                          8
prejudice, confusion of the issues, or misleading the jury.” F ED. R. E VID. 403. In

addition, the federal rules provide 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.” F ED. R. E VID. 404(b). Such evidence is admissible,

however, to prove, inter alia, intent or knowledge. 

. . .

vested in the trial judge” to make a determination on admissibility of evidence

under Rules 404(b) and 403. See United States v. Bloom, 

, 708 (5th

Cir. 1976).

      Based on these standards, we conclude that the district court’s admission of

Heck’s testimony regarding his 1997 investigation of Wright did not constitute an

abuse of discretion. First, the district court did not err under Rule 404(b) because

the evidence challenged by Wright was not evidence of extrinsic acts within the

meaning of Rule 404(b); rather the evidence was probative of crimes charged in

the indictment. In making this determination, we note that Count 1 in the

indictment indicated that the alleged conspiratorial activity began at an unknown

date. Accordingly, evidence of drug distribution activity in 1997 falls within the

time period contemplated by the indictment and therefore the constraints of Rule

404(b) are not implicated. See United States v. Ramsdale, 

, 830 (11th

Cir. 1995) (affirming the admission of evidence of a prior drug-related arrest



                                           9
because it took place within the time period during which the conspiracy was

alleged in the indictment to have taken place). Moreover, assuming that the 1997

investigation covered extrinsic acts, the evidence was admissible under Rule

404(b) because it was not admitted to demonstrate character propensity but rather

was introduced to show Wright’s intent to engage in a conspiracy to possess with

the intent to distribute cocaine. See United States v. McDowell, 

, 429

(11th Cir. 1983) (affirming admission of evidence of a prior cocaine deal to show

defendant’s intent to possess cocaine with intent to distribute). Likewise, the

admission of the evidence was not error under Rule 403. Although “temporal

remoteness depreciates the probity of [an] extrinsic act,” district courts are granted

broad discretion in determining whether such an act “is too remote to be

probative.” United States v. Pollock, 

, 1047 (11th Cir. 1991)

(citation omitted) (affirming admission of evidence regarding a five year old

conviction). Thus, although the 1997 investigation took place six years before the

conduct which formed the basis for the charges in Counts 4 and 5, the district court

acted within its discretion to find that the 1997 investigation was sufficiently

probative of the crime charged in Count 1 to outweigh any prejudice caused by the

temporal remoteness of the investigation in relation to the other counts.

Accordingly, the admission of Heck’s testimony did not constitute an abuse of



                                          10
discretion under Rule 403.

      Likewise, the district court did not abuse its discretion by admitting the 2003

videotape depicting a drug transaction between Terrell, Pearson, and a confidential

informant. Although the evidence depicted acts extrinsic to the activity of Wright,

the evidence was not improperly admitted under Rule 404(b) because it was

relevant to establish the existence of a conspiracy to distribute cocaine between

Wright, Terrell, and Pearson. See United States v. Cole, 

, 766-67

(11th Cir. 1985) (affirming the admission of videotapes depicting conversations

between coconspirators because they were probative of the existence and object of

the drug distribution conspiracy alleged in the indictment). In addition, the

videotape was necessary to complete the testimony of Goodloe who testified that

Terrell and Pearson were street level dealers who received their supply from

Wright. See United States v. Leavitt, 

, 1339 (11th Cir. 1985)

(affirming the admission of evidence which explained the operation of the

conspiracy and depicted “[a]cts in furtherance of the conspiracy”). Moreover,

because this evidence was highly probative of how the conspiracy operated, the

probativeness of the evidence outweighed any prejudice that may have resulted

from the introduction of the evidence.

      Accordingly, because testimony relating to the 1997 investigation and the



                                          11
2003 videotape were relevant to the charged offenses and not unduly prejudicial,

the district court did not abuse its discretion by admitting them at trial.

B. Constructive Amendment of the Indictment

      Next, Wright argues that the district court constructively amended the

indictment by instructing the jury that it could find him guilty of conspiring to

possess cocaine base or cocaine, when the indictment alleged that he conspired to

possess cocaine base and cocaine. We have held that “[a] constructive amendment

to the indictment is reversible error per se.” United States v. Descent, 

, 706 (11th Cir. 2002) (per curiam). “A constructive amendment occurs when

the essential elements of the offense contained in the indictment are altered to

broaden the possible bases for conviction beyond what is contained in the

indictment.” United States v. Castro, 

, 1452-53 (11th Cir. 1996)

(citations omitted). An improper amendment can occur through erroneous jury

instructions. 

In determining whether an indictment was constructively

amended, we look at whether the court’s instructions, “viewed in context,” literally

or effectively expanded the indictment. United States v. Behety, 

,

508-09 (11th Cir. 1994) (citation omitted). “[T]he law is well established that

where an indictment charges in the conjunctive several means of violating a

statute, a conviction may be obtained on proof of only one of the means, and



                                           12
accordingly the jury instruction may properly be framed in the disjunctive.”

United States v. Simpson, 

, 1300 (11th Cir. 2000).

      Based on these standards, we find that the district court did not improperly

amend the indictment in its jury instructions. The indictment charged Wright with

violating, inter alia, 21 U.S.C. §§ 841 and 846, which require that the government

prove that Wright possessed and intended to distribute a “controlled substance.”

See United States v. Williams, 

, 1525 (11th Cir. 1989); see also

United States v. Mejia, 

, 1392-93 (11th Cir.1996) (noting that to

satisfy elements of §§ 841(a)(1) and 846, government need not prove particular

substance involved, only that some controlled substance was involved). Using the

conjunctive, the indictment alleged that Wright violated §§ 841 and 846 by

possessing and intending to distribute the controlled substances of cocaine and

cocaine base. Because the indictment thus alleged conjunctively two ways that

Wright was alleged to have violated the statutes, the district court’s jury instruction

that the jury could find Wright guilty if it found that he possessed and intended to

distribute either controlled substance was proper. See 

.

Accordingly, we reject Wright’s argument that the district court’s jury instructions

constructively amended the indictment.




                                          13
C. Sufficiency of the Evidence

      Wright next argues that the district court erred by denying his motions for

judgment of acquittal because there was insufficient evidence to convict him of the

conspiracy charge. Wright argues that the government had to prove more than his

mere presence during the police raid or the existence of a buyer/seller relationship.

Additionally, Wright suggests that the testimony by Goodloe and Wade lacked

credibility and did not prove that he participated in a drug conspiracy. “In

reviewing the sufficiency of the evidence, we view it de novo, but in the light most

favorable to the government, and accepting all reasonable inferences which support

the verdict in order to determine if there was substantial evidence from which a

reasonable trier of fact could have concluded that the defendants were guilty

beyond a reasonable doubt.” United States v. Adkinson, 

, 1150

(11th Cir. 1998) (citation omitted). We generally grant credibility determinations

“great deference.” United States v. Singh, 

, 763 (11th Cir. 2002)

(citation omitted).

      A district court may grant a motion for judgment of acquittal for “any

offense for which the evidence is insufficient to sustain a conviction.” F ED. R.

C RIM. P. 29(a). In order to sustain a conviction under § 846, “the government must

prove that there is an agreement by two or more persons to violate the narcotics



                                          14
laws.” United States v. Parrado, 

, 1570 (11th Cir. 1990). “Mere

presence at the scene is not enough; however, direct evidence of a conspiracy is not

required.” 

“Because the essential nature of conspiracy is

secrecy, a conspiracy conviction may be based upon circumstantial evidence.”

. In distinguishing between a buyer/seller arrangement

and a conspiracy, we have indicated that “agreement may be inferred when the

evidence shows a continuing relationship that results in the repeated transfer of

illegal drugs to the purchaser.” United States v. Mercer, 

, 1335

(11th Cir. 1999) (per curiam). “In order to convict a defendant for possession of

cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), a jury must

find first that the defendant possessed the controlled substance knowingly and

wilfully, and second that he possessed the substance with the intent to distribute

it.” United States v. Anderson, 

, 1325 (11th Cir. 2002).

      Our review of the record confirms that Wright’s convictions were supported

by sufficient evidence. The evidence at trial demonstrated a consistent pattern of

drug-related activity being conducted from the Greenwood residence which Wright

frequented and inhabited since 1997. Police officers coordinated numerous

controlled drug purchases at the residence and a search warrant of the house led to

the discovery of significant amounts of drugs, digital scales, baggies, and other



                                          15
items related to the drug trade in Wright’s bedroom. On one occasion, Wright

admitted to a confidential informant that he had crack cocaine to sell. In addition,

Goodloe and Wade testified that Wright sold them crack cocaine multiple times

and described the conspiracy operated by Wright, Terrell, and Pearson. Their

descriptions of how the coconspirators operated was corroborated by a videotape

of Pearson and Terrell executing a drug transaction. Viewing this evidence in the

light most favorable to the government, we find that this evidence was more than

sufficient to sustain Wright’s convictions for violating 21 U.S.C. §§ 841 and 846.

Accordingly, the government’s case rested on more than Wright’s presence during

the 2003 police raid. Rather, circumstantial evidence demonstrated that he had

entered into an agreement with Terrell and Pearson to possess and distribute illegal

narcotics. Moreover, while Goodloe and Wade provided testimony which directly

implicated Wright, the district court, in denying Wright’s Rule 29 motions, made

credibility determinations which must be afforded deference on appeal. Moreover,

with regard to the § 841 charge, the evidence demonstrated Wright’s fingerprints

on baggies of cocaine and other containers and items related to drug distribution.

Accordingly, because the evidence was sufficient to establish beyond a reasonable

doubt all of the essential elements of the conspiracy and possession charges, the

district court did not err by denying Wright’s motions for a judgment of acquittal.



                                          16
D. Blakely/Booker Error

       Next, Wright argues that the district court violated his Fifth and Sixth

Amendment rights under Booker and Blakely by imposing a sentence based on

facts that the jury did not find beyond a reasonable doubt. Specifically, Wright

argues that his sentence was unconstitutional because it was based on: (1) a drug

quantity greater than that found by the jury; and (2) his alleged possession of a

firearm, after the jury had acquitted him of violating § 922(g). Because Wright

made no constitutional objection to the imposition of his sentence in the district

court, we review for plain error. See United States v. Burge, 

, __

(11th Cir. 2005). Under plain-error review, an appellant must show that there was

(1) an error, (2) that is plain, (3) that affects the appellant’s substantial rights, and

(4) that affects the fairness, integrity, or public reputation of the judicial

proceedings. 

the Supreme Court held that “the Sixth Amendment as construed

in Blakely does apply to the Sentencing Guidelines.” Booker, 543 U.S. at ___,

___, 125 S. Ct. at 746. Accordingly, the Court held that it was constitutional error

for a district court to enhance a defendant’s sentence according to the Sentencing

Guidelines based on facts not found by a jury. See Booker, 543 U.S. at __, 125 S.

Ct. at 756 (finding constitutional error where the defendant’s sentence was



                                            17
enhanced based on drug quantities found by the sentencing judge above the

amount determined by the jury verdict). In light of this determination, the Court

determined that the federal Sentencing Guidelines were no longer mandatory, but

rather could be considered in advisory capacity by district courts together with the

factors listed in 18 U.S.C. § 3553(a). Booker, 543 U.S. at ___, 125 S.Ct. at 756-

57. Construing the holding of Booker, our court has determined that, under the

plain error analysis, the defendant bears the burden to demonstrate that Booker

error affected his substantial rights. See United States v. Dowling, 

,

1247 (11th Cir. 2005). Accordingly, a defendant fails to meet the third prong of

the plain error standard where “nothing in the record indicates that the judge might

have imposed a different sentence” had the Sentencing Guidelines been employed

in an advisory instead of binding fashion. 

district court’s enhancement of Wright’s sentence constituted

plain error because his sentence was enhanced based on facts not found by a jury,

we conclude that Wright’s sentence should not be reversed because he cannot

demonstrate that the error affected his substantial rights. A thorough review of the

sentencing transcript reveals that there is nothing to indicate that Wright would

have received a different sentence had the sentencing judge applied the Sentencing

Guidelines in an advisory manner. While Wright notes that the district judge



                                          18
sentenced him on the low end of the range established by the Sentencing

Guidelines, this fact alone does not establish sufficient prejudice under the plain

error standard. See United States v. Fields, __ F.3d __ , __ (11th Cir. 2005)

(concluding that a district court’s decision to sentence a defendant at the low end of

the guidelines range without more was insufficient to establish defendant’s burden

on the third prong of the plain error test); see also United States v. Alcantara, No.

No. 04-11372 (11th Cir. Jun. 7, 2005) (per curiam) (unpublished opinion) (same).

Given that Wright can point to nothing else in the record to demonstrate that the

district court would have imposed a lesser sentence under an advisory guidelines

regime, he has failed to carry his burden of showing prejudice under the third

prong of the plain error standard. Moreover, we note that in addition to sentencing

Wright pursuant to the Sentencing Guidelines, the district court made the

independent assessment that “the sentence serves the sentencing goals of

punishment and deterren[ce].” R9 at 18. Because these determinations are part of

the statutory sentencing factors listed in 18 U.S.C. § 3553(a) which we would have

ordered the district court to consider had we remanded for resentencing, we

conclude that the district court’s error did not affect Wright’s substantial rights.

See United States v. Carroll, No. 04-14116 (11th Cir. Jun. 6, 2005) (per curiam)

(unpublished opinion). Accordingly, Wright has failed to show a reasonable



                                           19
probability that he would have received a different sentence had the district court

applied the Sentencing Guidelines in an advisory, rather than a mandatory, fashion,

and therefore his Booker/Blakely claims fail under the plain error standard.6

E. Omissions in the Record

         Finally, Wright argues that a new trial is required because substantial and

significant omissions in the record prevent our court from engaging in meaningful

review. Specifically, Wright notes that, despite his repeated requests, the trial

transcripts from 20 November 2003, the day when the jury indicated that it was

deadlocked, were not provided to him for review. According to Wright, although

the missing records are not, alone, sufficient to warrant reversal of his conviction,

in conjunction with the other errors, there is ample support for granting him a new

trial.

         “The Court Reporter Act requires that a reporter shall ‘record verbatim . . .

         6
         Although Wright’s arguments that the district court erred at sentencing were framed as
challenges to the constitutionality of his sentence, and therefore were analyzed under Booker for
plain error, Wright made the ancillary argument that the district court could not enhance his
sentence for possession of a firearm when the jury acquitted him on the § 922(g) charge. Our
case law confirms, however, that a defendant may be acquitted of a firearm possession offense
and be eligible for a sentence enhancement based on firearm possession. See United States v.
Stanley, 

, 1322 (11th Cir. 1994). This possibility results from the fact that a
different burden of proof governs the finding required for a conviction and the finding required
to enhance a sentence. See 

case, although the jury acquitted him on the § 922(g)
charge, the district court was entitled to find that Wright was in possession of a firearm after one
was found in a room that contained his state identification card and was alleged to be a room he
inhabited regularly. See United States v. Hansley, 

, 716 (11th Cir. 1995) (affirming
enhancement of sentence for drug conspiracy conviction based on evidence that firearm was
found in defendant’s residence along with other drug-related items).

                                                 20
all proceedings in criminal cases had in open court.’” United States v. Preciado-

Cordobas, 

, 1212 (11th Cir. 1993) (quoting 28 U.S.C. § 753(b)).

“[A] criminal defendant has a right to a record on appeal which includes a

complete transcript of the proceedings at trial.” United States v. Selva, 

, 1305 (5th Cir. 1977). “However, a defendant is not automatically entitled to

a new trial every time there is an omission from the transcript.”

. “[I]f the defendant is represented on appeal

by an attorney who did not participate in the trial, a new trial is necessary if there is

a substantial and significant omission from the trial transcript.” 

be

no substantial and significant omissions from a record if, taken as a whole, the

record affords effective review on appeal.” United States v. Medina, 

,

463 (11th Cir. 1996), superceded by statute on other grounds, United States v.

Tinoco, 

, 1104-06 (11th Cir. 2002).

      Based on these standards, we conclude that Wright is not entitled to a new

trial because the record afforded Wright and our court sufficient information to

effectively review the trial proceedings. Although Wright was not able to obtain a

copy of the transcript from the 20 November 2003 proceeding by the time he filed

his initial brief, he was able to obtain a copy of the transcript by the time he filed

his reply brief. Moreover, the 20 November transcript was made part of the record



                                           21
on appeal for our review. Accordingly, we have been able to review Wright’s

contentions that the district court committed error on 20 November and we find

them meritless. Accordingly, because the missing transcript in question was

provided both to Wright and our court, we find that the record did afford an

opportunity for meaningful review of all of Wright’s contentions. See United

States v. Charles, 

, 1283 (11th Cir. 2002) (per curiam) (finding new

trial not needed where the court was able to reconstruct the substance of the

omitted materials and therefore the omission was not an impediment to meaningful

review); 

. Therefore, Wright is not entitled to a new trial.

                                III. CONCLUSION

      Wright, a federal prisoner convicted on two counts related to his possession

with intent to distribute illegal narcotics, appealed his convictions and sentence on

several grounds. Upon our review of the record and the contentions of the parties,

however, we find no reversible error. Accordingly, Wright’s convictions and

sentence are AFFIRMED.




                                          22
TJOFLAT, Circuit Judge, specially concurring:

      I concur in the court’s judgment affirming Wright’s convictions because, as

the court correctly concludes, Wright has not shown reversible error. I concur in

the court’s affirmance of Wright’s sentences because precedent – namely United

States v. Rodriguez, 

(11th Cir. 2005), reh’g en banc denied, 

(11th Cir. 2005), cert. denied, ___ U.S. ____, 

, 

(2005) – requires that we do so notwithstanding the fact that, as the

Government’s brief properly concedes, “the district court committed error that is

plain by enhancing Wright’s sentence, under a mandatory guidelines system, based

on the court’s finding as to a fact (drug quantity) not admitted by Wright or found

by a jury.” Appellee’s Brief at 20. The court upholds Wright’s sentences because

Wright has not satisfied “the third prong of the plain error standard[, i.e.,] ‘nothing

in the record indicates that the judge might have imposed a different sentence’ had

the Sentencing Guidelines been employed in an advisory instead of binding

fashion.” Ante at 18 (quoting United States v. Dowling, 

, 1247 (11th

Cir. 2005).1 In other words, because Wright cannot point to something the district

court said prior to or in the course of imposing sentence to indicate that, but for the

mandatory nature of the Guidelines, he would have received sentences lower than



      1
          Dowling is nothing more than a straight forward application of Rodriguez.

                                               23
the Guidelines prescribed, he cannot show prejudice – that the error affected his

“substantial rights.” In short, the district court failed to utter what I call “magic

words,” words that Wright, and we, could seize upon to conclude that he suffered

prejudice.

       We should never expect to find these magic words in the record of a

sentencing hearing held pre-Booker. Why so? Because we judges are bound by the

oath of office to uphold the law, whether we like it or not. And the Guidelines are

the law. They were enacted by democratically empowered lawmakers, the

Congress.2 If a judge is dissatisfied with the Guidelines system, or any of the

sentences the Guidelines prescribe, the judge should take it up with the Congress

(or the Sentencing Commission). A sentencing hearing is not the appropriate forum

for voicing such dissatisfaction, which is why most judges are not likely to tell the

defendant that the sentence about to be imposed is unfair or unjust, but that there is

nothing the court can do about it. By telling the defendant that his sentence is

unfair or unjust, the judge invites (albeit unwittingly) the defendant “to persist in

attacking his sentence on direct appeal and collateral review, notwithstanding that

its substance and the manner of its imposition are legally correct. After all, why

should the defendant not appeal a sentence that even the judge criticized as too


       2
       To be sure, the Guidelines were framed by the U.S. Sentencing Commission, but the
Commission submitted them to Congress, and Congress enacted them.

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severe?” United States v. Thompson, 

, 1303-04 (11th Cir. 2005)

(Tjoflat, J. specially concurring). Indeed, “by openly disparaging the defendant’s

sentence, the judge fosters disrespect for the rule of law.” 

      Avoiding this untoward consequence is what prompts judges to avoid the

magic words we look for. As I observed in Thompson, this process – searching for

magic words –

      is as arbitrary as it is absurd. A defendant is rewarded with a new
      sentencing hearing only if the sentencing judge took the entirely
      inappropriate step of publically criticizing the law that required him to
      impose the sentence. In contrast, a defendant whose sentence was
      imposed without gratuitous comment by the sentencing judge is denied
      a new hearing. “It [is] a mistake to infer from a district court’s silence
      that the district court would not have made a different decision under a
      different sentencing scheme.” Silence often means nothing more than
      that an experienced judge understands his or her proper role in the
      criminal justice system. Thus, the judge’s comments or silence
      inevitably turns out to be poor circumstantial evidence of what the
      judge would do if freed from the constraints imposed by the
      

(citation omitted) (quoting United States v. Ameline, 

, 1082 (9th Cir. 2005) (en banc)).

      What the Booker sentencing scheme would look like was not even in the

realm of conjecture when the court sentenced Wright to concurrent prison terms of

360 months. Because the mandatory scheme under which the court was operating

was so markedly different from the scheme the Supreme Court created in Booker,



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the district judge in this case could not possibly have known what sentences he

would have imposed had the Guidelines been advisory and the court, rather than the

Sentencing Commission, was charged with the task of deciding which of the

sentencing purposes set out in 18 U.S.C. § 3553(a)(2) Wright’s sentences should

achieve.

      I have come full circle. Circuit precedent mandates that we affirm Wright’s

sentences. Obeying this law, I concur in the court’s judgment.




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