[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 23, 2005
No. 05-11564 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00035-CR-CG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID LEON ADAMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(September 23, 2005)
Before HULL, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
David Leon Adams appeals his sentence of 115 months imprisonment,
imposed following his guilty plea for possession of a firearm by a convicted felon.
Adams was indicted on one count of possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1) (count 1); one count of possession with
intent to distribute crack cocaine, in violation of 21 U.S.C. § 841 (count 2); and
one count of possession of a firearm during a drug trafficking offense, in violation
of 18 U.S.C. § 924(c) (count 3). According to the presentence investigation report
(“PSI”), when police responded to a robbery call they encountered Adams, who ran
from police, throwing his jacket to the ground. After stopping Adams, police
searched the jacket and discovered a firearm and crack cocaine. Adams agreed to
plead guilty to the § 922(g) offense, in exchange for which the government would
seek dismissal of the remaining counts. There was no written plea agreement, but
in his notice of intent to plead guilty, Adams admitted that he possessed a firearm
and that he had a prior felony conviction. He also acknowledged that the statutory
range of punishment included a maximum term of ten years imprisonment. The
court accepted the guilty plea.
The probation officer assigned a base offense level of 24 under U.S.S.G. §
2K2.1, with a four-level increase for possession of a firearm in connection with
another felony offense - in this case, the possession with intent to distribute crack
that formed the basis of count 2 of the indictment. With a two-level reduction for
acceptance of responsibility, Adams adjusted offense level was 26. The probation
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officer then calculated Adams’s criminal history category, noting the lengthy
history dating back to when Adams was 13 years old. The resulting category was
IV, making the applicable guidelines range 92 to 115 months imprisonment. The
probation officer recommended a sentence at the high end of the guidelines range.
Adams objected to the four-level increase for possession of a firearm in
connection with another felony offense because the enhancement violated due
process as set forth in United States v. Booker, 542 U.S. –, 125 S.Ct. 738, 160
L.Ed.2d 621 (2005). He conceded that the advisory nature of the guidelines
rendered any constitutional violation moot, but he claimed that, as his offense
predated Booker, application of the remedy violated his due process rights. He
further argued that he was entitled to an additional one-level reduction for
acceptance of responsibility. Finally, Adams objected to the PSI’s reference to the
robbery because it implied that he was involved with the robbery. The court
overruled the Booker objection, explaining that Booker did not alter the statutory
maximum sentence the court could impose. The court also overruled the
acceptance-of-responsibility objection because the court could grant an additional
one-level reduction only upon the government’s motion. The court then dismissed
counts 2 and 3, and sentenced Adams to 115 months imprisonment. In
determining this sentence, the court stated that the sentence was appropriate given
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the nature of Adams’s criminal history, the need for punishment, and the likelihood
of recidivism.
On appeal, Adams argues that, because he committed his offense before the
Supreme Court decided Booker, application of Booker’s remedial holding to his
sentencing violates due process. He then asserts that the court’s factual
determination that he possessed a firearm in connection with another felony
offense violated Booker’s requirements.
After Booker, we review a defendant’s sentence for reasonableness. United
States v. Winingear, No. 05-11198, manuscript op. at 7 (11th Cir., Aug. 30, 2005);
United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005). Notably, the
same extra-verdict enhancements remain, and the district court considers the same
factual evidence in applying the enhancements as it would under a mandatory
guidelines scheme. United States v. Williams, 408 F.3d 745 (11th Cir. 2005).
Additionally, after Booker, this court applies the same standard of review for
applications of guidelines enhancements. Crawford, 407 F.3d at 1178.
Adams raises two issues on appeal, neither of which has any merit. First,
this court has rejected Adams’s argument that the application of Booker violates
due process. Adams had fair warning of the potential statutory maximum sentence
he faced by the commission of his offense. See United States v. Duncan, 400 F.3d
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1297, 1307 (11th Cir.), petition for cert. filed, (No. 05-5467) (Jul. 20, 2005).
Second, the district court added the enhancement for the possession of a
firearm in connection with another felony offense for which Adams initially was
indicted.1 After Booker, the court is still required to correctly calculate the
guideline range, and there is no constitutional violation in the use of enhancements
under an advisory guidelines scheme. Booker, 125 S.Ct. at 756, 764-66; Crawford,
407 F.3d at 1178-79; Duncan, 400 F.3d at 1307. Additionally, because Adams
failed to object to the PSI’s factual findings, he is deemed to have admitted the
facts leading to the enhancement and there is no Booker error. See United States v.
Burge, 407 F.3d 1183, 1191 (11th Cir.), petition for cert. filed, (No. 05-5601) (Jul.
27, 2005); see also Shelton, 400 F.3d at 1330. Accordingly, the court properly
calculated the guidelines range.
Moreover, the sentence imposed was not only within the statutory range but
was reasonable. The district court explained that it found the guidelines range to
be adequate and that a sentence at the high end was necessary given the nature of
Adams’s criminal history, the need for punishment, and the likelihood of
recidivism. As this determination encompasses the criteria of 18 U.S.C. § 3553(a)
for imposing sentence, Adams’s sentence of 115 months is reasonable. See
1
The district court properly considered the additional felony offense as relevant conduct
under U.S.S.G. § 1B1.3(a). United States v. Scroggins, 880 F.2d 1212, 1214 (11th Cir. 1989).
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Winingear, manuscript op. at 10; United States v. Robles, 408 F.3d 1324, 1328
(11th Cir. 2005). Accordingly, we AFFIRM.
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