[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-16641
December 7, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00137-CR-WTM-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT LEE GREEN, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(December 7, 2005)
Before TJOFLAT, ANDERSON and MARCUS, Circuit Judges.
PER CURIAM:
In a two-count indictment, a Southern District of Georgia grand jury charged
Robert Lee Green, Jr. in Count One with possession of firearm by a convicted
felon, in violation of 18 U.S.C. §§ 922(g)(1), and in Count Two with possession of
cocaine and marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a).
After the district court denied his motion to suppress evidence seized during a
warrantless search of his hotel room and automobile and his post-arrest statements
to the police, Green entered a conditional guilty plea to the Count One offense,
reserving the right to appeal the court’s denial of his motion. Because Green is a
career offender, as defined by U.S.S.G. § 4B1.4, and was subject to a 15-year
mandatory minimum sentence under 18 U.S.C. § 924(e), the court sentenced him
to a prison term of 15 years. He now appeals his conviction on the ground that the
court erred in denying his motion to suppress.1 He also appeals his sentence,
contending that the court enhanced his sentence in derogation of the Sixth
Amendment, because the court, rather than a jury, established the existence of the
prior convictions that triggered the 15-year sentence. See United States v. Booker,
543 U.S. , 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
The district court referred Green’s motion to suppress to a magistrate judge,
who held an evidentiary hearing. The Government presented the testimony of
three members of the Chatham-Savannah Counter Narcotics Team (two agents and
1
Green also asks that we set aside his conviction because the Government failed to produce
Agent Benda’s notes as required by Fed. R. Crim. P. 16. The Government says that Green’s guilty
plea was not conditioned on his right to appeal the court’s ruling on this issue. We agree, and
therefore do not consider the issue.
2
a sergeant), who were involved in the search of Green’s hotel room and automobile
(which turned out to be stolen) and questioned Green, and Green presented the
testimony of Nianza Johnson, his girlfriend, who was present during the search of
the hotel room and while Green spoke to the agents. After hearing all of the
testimony and resolving the credibility issues, the magistrate judge issued a Report
and Recommendation 2 in which he concluded that both probable cause and exigent
circumstances rendered the search of Green’s hotel room lawful; that the car was
searched after it was determined to have been stolen and because the Narcotics
Team had properly seized it; and that Green’s statements to the agents were made
voluntarily after Green had been advised of his Miranda 3 rights and waived them.
The magistrate judge therefore recommended that the district court deny Green’s
motion to suppress.
The court thereafter considered the Report and Recommendation, conducted
a de novo review of the record, and based on the magistrate judge’s findings of fact
and conclusions of law, denied the motion to suppress. We, in turn, conclude that
the record supports those findings of fact and that the conclusions constitute a
correct application of the law. We therefore affirm Green’s conviction. We turn
2
Record, Vol. 1 at 21.
3
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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now to Green’s sentence, specifically his Booker challenge.
Green contends that the district court denied his Sixth Amendment right to a
jury trial when it enhanced his sentence based on facts relating to his prior
convictions that he did not admit and a jury did not find. He points specifically to
the court’s findings that he was represented by counsel in the cases that resulted in
his state court convictions, served to increase his offense level under the
Guidelines, and triggered the application of 18 U.S.C. § 924(e). We review for
plain error issues not raised in the district court. See United States v. Rodriguez,
398 F.3d 1291, 1296 (11th Cir.), cert. denied, 125 S.Ct. 2935 (2005). To prevail
under a plain-error standard, the appellant must establish the following: (1) error
occurred (2) that is plain and (3) affected substantial rights. see also United States
v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993). Once
these elements are established, we may notice the error only if it “seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” Id. at 736, 113
S.Ct. at 1779.
“In Almendarez-Torres v. United States, the Supreme Court held that the
government need not allege in its indictment and need not prove beyond a
reasonable doubt that a defendant had prior convictions for a district court to use
those convictions for purposes of enhancing a sentence.” United States v.
Marseille, 377 F.3d 1249, 1257 (11th Cir.), cert. denied, 125 S.Ct. 637 (2004).
4
Neither Apprendi v. New Jersey, 530 U.S. 466, 489-90, 120, S.Ct. 2348, 2362-63,
147 L.Ed.2d 435 (2000) (holding that “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt”),
Blakely v. Washington, 542 U.S. 296, , 124 S.Ct. 2531, 2537-38, 159 L.Ed.2d
403 (2004) (holding that the imposition of a sentencing enhancement under the
state of Washington’s mandatory guidelines system based on facts neither admitted
by the defendant nor found by the jury violated the defendant’s Sixth Amendment
right to a jury trial), nor Booker, 543 U.S. at , 125 S.Ct. at 755-56 (extending
Blakely to the Federal Sentencing Guidelines), disturbed the Almendarez-Torres
holding. United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315-16 (11th Cir.
2005).
Section 924(e)(1) of the United States Code requires that a minimum 15-
year prison term be imposed for a § 922(g) offense, if the defendant has three
previous violent felony or serious drug offenses. Because the court properly found
that Green’s prior convictions were counseled, and the court had to impose the 15-
year mandatory minimum sentence, not even the first prong of the plain error test
has been met. In short, no Booker error occurred.
AFFIRMED.
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