[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
No. 08-14449
Non-Argument Calendar
________________________

ELEVENTH CIRCUIT
APR 7, 2009
THOMAS K. KAHN
CLERK

D. C. Docket No. 08-20023-CR-JEM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus
MICHAEL TYRONE MOBLEY,
Defendant-Appellant.

________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 7, 2009)
Before DUBINA, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Appellant Michael Tyrone Mobley appeals his convictions and sentences

for: (1) possession of a firearm by a convicted felon, in violation of 18 U.S.C.

922(g)(1), 924(e) (Count 1); (2) possession with intent to distribute five or more
grams of crack cocaine, in violation of 21 U.S.C. 841(a)(1), (b)(1)(B)(iii)
(Count 2); (3) possession with intent to distribute marijuana, in violation of
841(a)(1), (b)(1)(C) (Count 3); and (4) possession of a firearm in furtherance of a
drug-trafficking crime, in violation of 18 U.S.C. 924(c)(1)(A) (Count 4). The
evidence at trial showed that, after Drug Enforcement Administration (DEA)
agents served a search warrant on a house that had been under investigation for
distribution of crack cocaine, they found Mobley sleeping in a bedroom. The
agents also found 60 bags of crack cocaine, 20 bags of marijuana, and a firearm in
Mobleys bedroom closet, with the drugs on top of the firearm. The contraband
was located next to a bookbag containing Mobleys personal papers.
On appeal, Mobley challenges the sufficiency of the evidence, and argues
that the use of prior convictions violated [Link]. 404(b), his 360-month
sentence was substantively unreasonable, and his Sixth Amendment rights were
violated because his sentence was enhanced based on prior convictions that were
not included in the indictment nor proven to a jury.

I.
Mobley first challenges the sufficiency of the evidence supporting his
convictions. We review the sufficiency of the evidence de novo, viewing the
evidence in the light most favorable to the government. United States v. Garcia,
405 F.3d 1260, 1269 (11th Cir. 2005) (citation omitted). We make all reasonable
inferences and credibility choices in favor of the government and the jurys
verdict. Id. We affirm unless, under no reasonable construction of the evidence,
could the jury have found the [defendant] guilty beyond a reasonable doubt. Id.
The evidence need not exclude every hypothesis of innocence or be completely
inconsistent with every conclusion other than guilt because a jury may select
among constructions of the evidence. United States v. Bailey, 123 F.3d 1381,
1391 (11th Cir. 1997).
To support a conviction for possession with intent to distribute, under
21 U.S.C. 841(a)(1), the government had to establish: (1) knowledge of
possession; (2) possession of a controlled substance; and (3) intent to distribute.
United States v. Woodard, 531 F.3d 1352, 1360 (11th Cir. 2008) (quotations
omitted). These elements may be proven by circumstantial evidence. Id. To
support a conviction for possession of a firearm by a convicted felon, under 18
U.S.C. 922(g), the prosecution must prove beyond a reasonable doubt that the

defendant was (1) in knowing possession of a firearm, (2) a convicted felon, and
(3) that the firearm affected interstate commerce. United States v. Glover, 431
F.3d 744, 748 (11th Cir. 2005) (quotation omitted).
Possession may be proven by the government showing either actual or
constructive possession. United States v. Hernandez, 433 F.3d 1328, 1333 (11th
Cir. 2005). Constructive possession exists when a defendant has ownership,
dominion, or control over an object itself or dominion or control over the premises
. . . in which the object is concealed. Id. (quotations omitted). Knowledge can be
proven using evidence of the surrounding circumstances. United States v. Poole,
878 F.2d 1389, 1392 (11th Cir. 1989). Intent to distribute can be proven
circumstantially from, among other things, the quantity of cocaine and the
existence of implements such as scales commonly used in connection with the
distribution of cocaine. Id. Other relevant factors include the defendants
possession of a firearm, a large amount of cash, or an implement used to cut up
drugs. United States v. Marszalkowski, 669 F.2d 655, 662 (11th Cir. 1982).
To support a conviction for possession of a firearm in furtherance of a
drug-trafficking offense, under 18 U.S.C. 924(c)(1)(A), the Government had to
establish that [the defendant] (1) knowingly (2) possessed a firearm (3) in
furtherance of any drug trafficking crime for which he could be prosecuted in a

court of the United States. Woodard, 531 F.3d at 1362. The in furtherance
element requires proof that the firearm helped, furthered, promoted, or advanced
the drug trafficking. Id. (quotation omitted). [T]here must be a showing of some
nexus between the firearm and the drug selling operation. United States v.
Timmons, 283 F.3d 1246, 1253 (11th Cir. 2002) (quotation omitted). We consider
several factors in determining whether a defendant possessed a firearm in
furtherance of a drug-trafficking crime, including:
The type of drug activity that is being conducted, accessibility of the
firearm, the type of the weapon, whether the weapon is stolen, the
status of the possession (legitimate or illegal), whether the gun is
loaded, proximity to the drugs or drug profits, and the time and
circumstances under which the gun is found.
Woodard, 531 F.3d at 1362 (quotation omitted).
We conclude from the record that the evidence was sufficient to support
Mobleys convictions. First, with regard to possession with intent to distribute
crack cocaine and possession with intent to distribute marijuana, a reasonable jury
could have found, beyond a reasonable doubt, that Mobley: (1) was aware of the
crack cocaine and marijuana, which were located in his bedroom closet, next to his
bookbag containing his personal papers; (2) had dominion and control over the
closet in which the drugs were located; and (3) intended to distribute the drugs
because they were packaged for distribution, and located on top of a loaded

firearm. Second, with regard to the conviction for possession of a firearm by a

convicted felon, a reasonable jury could have found that Mobley possessed the
firearm because he had dominion and control over his bedroom, his bedroom
closet, and likewise, the firearm that was located in his closet and next to his
bookbag. Third, with regard to the conviction for possession of a firearm in
furtherance of a drug-trafficking crime, a reasonable jury could have found that
Mobley possessed the firearm in furtherance of a drug-trafficking crime because:
(1) drugs were being distributed from the house where he lived; (2) the firearm was
easily accessible; (3) the cocaine and marijuana were illegal drugs; (4) the firearm
was loaded; and (5) the firearm was in close proximity to the drugs.
II.
Mobley next argues that the district court abused its discretion in allowing
into evidence his prior drug convictions. Specifically, Mobley claims that his sixand nine-year-old drug convictions were not probative of whether he knew that the
drugs and firearm were located in his bedroom closet.

We review evidentiary rulings for an abuse of discretion. United States v.

Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006). Evidence admitted in violation of
Rule 404(b) is harmless when there is substantial evidence of the defendants guilt.
United States v. Chavez, 204 F.3d 1305, 1317 (11th Cir. 2000).
Rule 403 states that relevant evidence may be excluded when its probative
value is substantially outweighed by the danger of unfair prejudice.
[Link]. 403. Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident . . .
[Link]. 404(b). Prejudice from improperly admitted evidence, however, may
be mitigated by a limiting instruction to the jury. United States v. Edouard, 485
F.3d 1324, 1346 (11th Cir. 2007).
We apply a three-part test in determining whether prior bad acts were
admissible under Rule 404(b): (1) the evidence was relevant for a reason other than
for establishing the defendants character; (2) the probative value of the evidence
was not substantially outweighed by undue prejudice; and (3) there was substantial
evidence presented at trial that the defendant committed the prior act. United
States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir. 2008).

A defendant who enters a not guilty plea makes intent a material issue
which imposes a substantial burden on the government to prove intent, which it
may prove by qualifying Rule 404(b) evidence absent affirmative steps by the
defendant to remove intent as an issue. Edouard, 485 F.3d at 1345 (quotation
omitted). Where the extrinsic offense is offered to prove intent, its relevance is
determined by comparing the defendants state of mind in perpetrating both the
extrinsic and charged offenses. Id. (citation omitted). Moreover, evidence of
prior drug dealings is highly probative of intent to engage in drug dealing later on.
United States v. Diaz-Lizaraza, 981 F.2d 1216, 1224 (11th Cir. 1993). Thus,
where the state of mind required for the charged and extrinsic offenses is the same,
the first prong of the Rule 404(b) test is satisfied. Edouard, 485 F.3d at 1345
(citation omitted).
[W]hether the probative value of Rule 404(b) evidence outweighs its
prejudicial effect depends upon the circumstances of the extrinsic offense. Id.
(quotation omitted). Relevant circumstances include the overall similarity
between the extrinsic act and the charged offense, as well as temporal remoteness.
United States v. Jernigan, 341 F.3d 1273, 1282 (11th Cir. 2003) (quotation
omitted).

We conclude from the record that the district court did not abuse its
discretion by admitting evidence regarding Mobleys prior drug convictions
because they were probative of his knowledge of possession, and intent to
distribute, crack cocaine and marijuana.
III.
Mobley next argues that his 360-month sentence was substantively
unreasonable because his criminal history category overrepresented the seriousness
of his past convictions, and his sentence was greater than necessary. He asserts
that the district court exclusively relied on the guideline range, instead of
considering all of the 18 U.S.C. 3553(a) factors.
We review a sentence for reasonableness under a deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S. ___,128 S. Ct. 586,
591, 169 L. Ed. 2d 445 (2007). A sentence must be both procedurally and
substantively reasonable. United States v. Livesay, 525 F.3d 1081, 109091(11th
Cir. 2008). A sentence is substantively unreasonable if it does not achieve the
purposes of sentencing stated in 3553(a). United States v. Pugh, 515 F.3d 1179,
1191 (11th Cir. 2008) (quotation omitted). The burden of establishing that the
sentence is unreasonable in light of the record and the 18 U.S.C. 3553(a) factors
lies with the party challenging the sentence. United States v. Talley, 431 F.3d 784,

788 (11th Cir. 2005).

Section 3553(a) provides that district courts must consider, inter alia, (1) the
applicable guideline range; (2) the nature and circumstances of the offense; (3) the
history and characteristics of the defendant; (4) the need for the sentence imposed
to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense; (5) the need for adequate deterrence to
criminal conduct; (6) protection of the public from further crimes of the defendant;
and (7) the need to avoid unwarranted sentencing disparities. 18 U.S.C. 3553(a).
The weight to be accorded any given 3553(a) factor is a matter committed to the
sound discretion of the district court, and we will not substitute our judgment in
weighing the relevant factors. United States v. Amedeo, 487 F.3d 823, 832 (11th
Cir.), cert. denied, 128 S. Ct. 671 (2007) (quotations and alterations omitted).
Although a sentence within the advisory guidelines range is not per se reasonable,
we have stated that we would ordinarily expect such a sentence to be reasonable.
See Talley, 431 F.3d at 787-88; see also Rita v. United States, 551 U.S. 338, ___,
127 S. Ct. 2456, 2462-63, 168 L. Ed. 2d 203 (2007) (noting that a sentence within
the properly calculated Guidelines range significantly increases the likelihood that
the sentence is a reasonable one.).
The district courts decision to impose a guidelines sentence, at the bottom

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of the guideline range, was reasonable and supported by the record. Moreover,
Mobleys criminal history category did not overrepresent the seriousness of his
prior convictions because he had 10 prior drug-related convictions, his career
offender status automatically increased his criminal history category to VI, and
while the district court did not specifically refer to the 3553(a) factors, it did take
the pertinent factors into account. Accordingly, Mobleys 360-month sentence is
substantively reasonable.
IV.
Mobley next argues that his underlying convictions used to qualify him as an
armed career criminal should have been presented to a jury and proved beyond a
reasonable doubt. He concedes, however, that Almendarez-Torres v. United States,
523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), forecloses this issue.
We review de novo preserved questions concerning the constitutionality of
an enhanced sentence. See United States v. Paz, 405 F.3d 946, 948 (11th Cir.
2005). In Almendarez-Torres, the Supreme Court held that the government need
not allege in its indictment nor prove beyond a reasonable doubt that a defendant
had prior convictions for a district court to use those convictions to enhance a
sentence. Almendarez-Torres, 523 U.S. at 226-27, 118 S. Ct. at 1222. Further, in
United States v. Shelton, 400 F.3d 1325, (11th Cir. 2005), we held that the decision

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in Almendarez-Torres was left undisturbed by Apprendi v. New Jersey, 530 U.S.

466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), Blakely v. Washington, 542 U.S.
296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and United States v. Booker, 543
U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), and that a district court does
not err by relying on prior convictions to enhance a defendants sentence.
Shelton, 400 F.3d at 1329.
Because Almendarez-Torres remains good law, prior convictions need not
be proven to a jury or alleged in an indictment to enhance a sentence, and the
district court did not err in considering the prior convictions to support the armed
career criminal enhancement.
For the above-stated reasons, we affirm Mobleys convictions and sentences.
AFFIRMED.

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