[DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 10-11305                ELEVENTH CIRCUIT
                         Non-Argument Calendar           NOVEMBER 10, 2010
                       ________________________               JOHN LEY
                                                               CLERK
                D.C. Docket No. 1:09-cr-00269-TWT-RGV-1

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                  versus

MARKISHA BURKS,

                                                     Defendant-Appellant.

                      ________________________

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

                           (November 10, 2010)

Before EDMONDSON, MARTIN and FAY, Circuit Judges.

PER CURIAM:
      Markisha Burks appeals her convictions and sentences for mail fraud, wire

fraud, making false statements to a Department of the United States, and theft

from the United States. On appeal, Burks contends that the district court erred by

denying her Batson1 motion during jury selection. She also argues that the district

court clearly erred by imposing a two-level sentencing enhancement for

obstruction of justice under U.S.S.G. § 3C1.1 after finding that she had given

perjured testimony at trial. She asserts that her trial testimony did not meet the

definition of perjury because it was too unbelievable to be considered material.

For the reasons set forth below, we affirm Burks’s convictions and sentences.

                                                I.

      A grand jury returned an indictment charging Burks with (1) one count of

mail fraud, in violation of 18 U.S.C. § 1341; (2) five counts of wire fraud, in

violation of 18 U.S.C. § 1343; (3) one count of making false statements to an

agency of the United States, in violation of 18 U.S.C. § 1001; and (4) five counts

of theft from the United States, in violation of 18 U.S.C. § 641. Burks entered a

plea of not guilty and proceeded to trial.

      Following jury selection, Burks made a motion under Batson challenging

the government’s use of its peremptory strikes. She pointed out that the


      1
          Batson v. Kentucky, 

, 

, 

(1986).

                                                2
government had used five of its six challenges to strike minority venire members.

Specifically, she noted that the government struck: (1) Juror 1, who appeared to be

an Indian female; (2) Juror 2, a black male; (3) Juror 4, a black female; (4) Juror

15, a black male; and (4) Juror 20, a black male.

      In response, the government observed that it was not clear from Juror 1’s

name or appearance that she was a racial minority. The government also offered

race-neutral reasons for striking the four African-American jurors. Specifically,

the government noted that Juror 2 seemed uninterested in the proceedings and did

not follow what was going on in jury selection or the reading of the indictment.

Juror 4 also appeared uninterested, “seemed to avert attention” from the

prosecution, and indicated that she had visited a cousin in prison. Juror 15 had a

brother in jail and had been falsely accused of a domestic violence crime. Juror 20

stated that he had four children, but was only able to give the names and birth

dates of three of them, and he seemed to be falling asleep in the back of the room.

      Burks replied that the government’s proffered reasons were pretextual. She

pointed out that the venire members whom the government found to be

uninterested had answered all of the questions posed to them. She also observed

the government did not strike two white jurors who had visited relatives in jail.

Finally, she pointed out that the prosecutor had not “followed up” on why Juror 20

                                          3
had difficulty remembering the ages of his children.

       Proceeding directly to the second and third steps of Batson, the court

determined that the government’s proffered explanations for its strikes were

legitimate. The court agreed with the government that Jurors 2 and 4 were

“unengaged in the process.” The court also observed that Juror 4 gave very little

information about herself. The court pointed out that the government struck a

white female, Juror 24, who was unengaged in the process and who provided very

little information about herself. Next, the court noted that Juror 20 had difficulty

reading the questionnaire and responding to questions. Finally, the court

concluded that the government had a legitimate ground for striking Juror 15

because he had been accused of domestic violence. Accordingly, the district court

denied Burks’s Batson motion. The district court noted for the record that the

jury as selected contained three black females, a black male, an Asian female, and

an Asian male. The court further observed that the alternate juror was a black

female.

      During trial, the government presented evidence that Burks submitted a

claim for disaster relief to the Federal Emergency Management Agency (“FEMA”)

in September 2005. On her application form, Burks stated that she and her

daughter had been living in New Orleans at the time of Hurricane Katrina, and

                                          4
now needed disaster assistance. After receiving the application, FEMA wired five

separate payments totaling over $11,000 into Burks’s debit card account. In fact,

Burks was living at Haven House, a shelter in Atlanta, when Hurricane Katrina

struck New Orleans. When the director at Haven House asked Burks why she was

receiving mail from FEMA, she responded that she was a government bidder.

Between November 2005 and June 2006, Burks sent additional correspondence

and requests for continued funding to FEMA. Those documents were faxed from

an apartment complex where Burks used to live, from the home of Jamaine

Gilbert, a man whom she was dating, and from a business in California where she

was employed for a period of time.

      Burks testified in her own defense. She explained that certain personal

information had been stolen from her in 2002. Later, she discovered that someone

had used her name to obtain a credit card and rent an apartment. She also noticed

suspicious items on her credit report. On one occasion, she received a call from a

credit agency concerning two checks that she did not write. Burks tried to report

the identity theft in California, but the police told her that she would have to file

the report in Atlanta because the theft occurred there. She sent an email to the

Atlanta Police Department, but never received a response. Burks denied applying

for or receiving disaster relief from FEMA.

                                           5
       On cross-examination, Burks denied speaking with the staff at Haven House

about receiving mail from FEMA. She also acknowledged that the identity theft

occurred before her daughter was born, so her daughter’s information could not

have been stolen. The jury found Burks guilty with respect to all 12 counts of the

indictment.

       The presentence investigation report recommended that Burks receive a

two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1 because

she had provided false testimony at trial. Burks objected to the obstruction of

justice enhancement. At the sentencing hearing, the government argued that the

enhancement was appropriate because Burks testified falsely when she denied

submitting the applications to FEMA and when she suggested that an identity thief

was responsible for the fraudulent applications. Burks responded that her

testimony was truthful and that she should not be penalized for exercising her

constitutional right to testify.

       The district court explained that Burks “has a right to testify, but she doesn’t

have a right to lie, and that’s what she did.” The court found that Burks lied when

she said that she had never applied for or received FEMA benefits. The court

observed that, to accept Burks’s testimony as true, one would have to believe that

an unknown person stole her identity, submitted false claims to FEMA, and then

                                           6
had the money deposited in Burks’s account. The court explained, “That’s not the

way identity theft works. The whole purpose for stealing somebody’s money is to

get the money in your account, not the victim’s. So her testimony or suggestion

that this was all somebody stealing her identity is absurd and ridiculous and

unbelievable.” The court also concluded that Burks lied when she denied

receiving mail from FEMA. Accordingly, the court overruled Burks’s objection

and imposed an obstruction of justice enhancement. The court sentenced Burks to

a term of 12 months and one day in prison with respect to all twelve counts of

conviction, with all of the sentences to run concurrently.

                                          II.

      We review the district court’s denial of a Batson motion de novo, but will

reverse the district court’s factual findings only if they are clearly erroneous.

United States v. Allen-Brown, 

, 1296-97 (11th Cir. 2001). Batson

holds that a party may not exercise a peremptory challenge against a juror solely

on account of that juror’s race. 

The district court must apply a

three-step procedure in ruling on a Batson objection. 

objector must

make a prima facie showing that the peremptory challenges were exercised on the

basis of race. 

consider include: (1) whether there has been a pattern

of strikes against minority jurors; (2) whether the striking party’s questions or

                                           7
statements suggest a discriminatory purpose; (3) the racial composition of the

remaining jurors; (4) the race of the defendant; and (5) the nature of the crime.

.

      If the court finds that the objector has made a prima facie showing of

discrimination, the burden shifts to the striking party to gave a race-neutral reason

for its strikes. 

If the striking party is able to offer such reasons, the

court must proceed to the third step, and determine whether the objecting party has

carried its burden of proving purposeful discrimination. 

party

may carry its burden by showing that the striking party's race-neutral reason is a

mere pretext for discrimination.” United States v. Bernal-Benitez, 

,

1312 (11th Cir.), cert. denied, 

, and cert. denied, 

(2010). One way to demonstrate that the reason offered is a pretext is to show that

it applies with equal force to venire members of another race who were not struck.

Miller-El v. Dretke, 

, 241, 

, 2325, 

(2005).

      Here, regardless of whether Burks established a prima facie case of

discrimination, she failed to prove that the government’s reasons for striking the

minority jurors were pretextual. On appeal, Burks only challenges the

government’s explanation that it struck Jurors 4 and 15 because they visited family

                                            8
members in jail. She points out that the government did not strike two white

jurors who visited individuals in prison. Even assuming that Burks has shown that

particular reason to be pretextual, the government offered other race-neutral

reasons for striking Jurors 4 and 15. Specifically, the government explained that

Juror 4 appeared uninterested in the proceedings, and that Juror 15 had been

falsely accused of a domestic violence crime. The district court, which was in the

best position to judge the demeanor of the venire members, agreed with the

government that Juror 4 was “unengaged in the process,” and there is nothing in

the record to suggest that the court’s determination was clearly erroneous. In

addition, the fact that Juror 15 had been falsely accused of a crime was also a valid

basis for exercising a peremptory challenge.

      Burks does not argue on appeal that the government’s non-discriminatory

reasons for striking Jurors 2 and 20 were pretextual. Even if she had raised that

argument, there is nothing in the record to contradict the district court’s findings

that those two particular jurors appeared to be uninterested in the case. Because

Burks failed to meet her burden of showing that the government struck the

minority venire members for race-related reasons, the district court properly

denied her Batson motion.

                                         III.

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         When a district court imposes a sentencing enhancement for obstruction of

justice, we review the district court’s factual findings for clear error, and its

application of the Sentencing Guidelines to those facts de novo. United States v.

Massey, 

, 818 (11th Cir. 2006). Section 3C1.1 of the Sentencing

Guidelines provides that a defendant should receive a two-level sentencing

enhancement if he “willfully obstructed or impeded . . . the administration of

justice with respect to the investigation, prosecution, or sentencing” of the offense

of conviction. U.S.S.G. § 3C1.1. The commentary to this section lists perjury as

an example of conduct that supports application of the enhancement. 

For purposes of the obstruction of justice guideline, perjury is

defined as the giving under oath of “false testimony concerning a material matter

with the willful intent to provide false testimony, rather than as a result of

confusion, mistake, or faulty memory.” United States v. Dunnigan, 

,

94, 

, 1116, 

(1993). The term “material” is defined

as “evidence, fact, statement, or information that, if believed, would tend to

influence or affect the issue under determination.” U.S.S.G. § 3C1.1, comment.

(n.6).

         In this case, Burks testified under oath that she never submitted an

application for disaster relief benefits to FEMA. She explained that she had been

                                           10
the victim of identity theft, and implied that the identity thief must have been the

one who submitted the fraudulent application. Had the jury believed this

testimony, it would have found Burks not guilty of the charged offenses. Because

this testimony, “if believed, would tend to influence or affect the issue under

determination,” it was material. See U.S.S.G. § 3C1.1, comment. (n.6).

       Burks makes a novel argument that her testimony was so implausible that

no fact-finder could possibly have accepted it. The definition of “material,”

however, focuses on whether the testimony would affect the outcome of the case

“if believed,” not whether the testimony is actually believable. See U.S.S.G.

§ 3C1.1, comment. (n.6). Thus, testimony can be material even if it is inherently

implausible. Moreover, reading a believability or plausibility requirement into the

definition of “material” would have the undesirable effect of encouraging

defendants to give false testimony at trial, knowing that they would be able to

avoid an obstruction of justice enhancement by arguing that their testimony was

too fantastic to be believed. Thus, we reject Burks’s argument that her testimony

was not material because it was “too absurdly unbelievable.” We conclude that

the district court properly enhanced Burks’s sentence by two levels for obstruction

of justice.

       Accordingly, we affirm Burks’s convictions and sentences.

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AFFIRMED.




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