[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-12715 FEBRUARY 8, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 03-00073-CR-OC-10-GRJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY MCKINNIES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 8, 2006)
Before TJOFLAT, ANDERSON and WILSON, Circuit Judges.
PER CURIAM:
Gregory McKinnies appeals his conviction for conspiracy to distribute
cocaine base (crack), in violation of 21 U.S.C. § 846, arguing that: (1) he suffered
reversible error as a result of the district court admitting into evidence his co-
conspirator’s statement to a non-co-conspirator; and (2) 21 U.S.C. §§ 841 and 846
are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120
S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny.
I. Admission of Co-Conspirator’s Statement
McKinnies argues on appeal that the district court erred in admitting into
evidence co-conspirator Aaron Bostic’s (Aaron’s) statement to non-co-conspirator
Erica Young, because it was allegedly not made in furtherance of the conspiracy.
Aaron’s statement was: “Yeah ‘cause luckily that thing is I guess they didn’t find it
you know what I’m talking about?”
We review the district court’s evidentiary rulings for a “clear abuse of
discretion.” United States v. Tinoco, 304 F.3d 1088, 1119 (11th Cir. 2002). There
is no reversible error where the disputed evidence established the same facts from
testimony already properly admitted into the record. See United States v. Hock,
995 F.2d 195, 197 (11th Cir. 1993).
Further, we review the district court’s factual finding that a statement was
made in furtherance of a conspiracy under the clearly erroneous standard. United
States v. Tokars, 95 F.3d 1520, 1538 (11th Cir. 1996). A district court’s factual
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finding that a statement was made in furtherance of the conspiracy is clearly
erroneous if, after reviewing the record, we are “left with a definite and firm
conviction that a mistake has been committed.” United States v. Van Hemelryck,
945 F.2d 1493, 1498 n.3 (11th Cir. 1991) (internal quotations and citation
omitted). Although otherwise inadmissible as hearsay, a statement by a co-
conspirator is admissible if the government proves, by a preponderance of the
evidence, that the statement was made during the course of, and in furtherance of,
the conspiracy. Fed.R.Evid. 801(d)(2)(E); Van Hemelryck, 945 F.2d at 1497-98.
The district court did not clearly err in finding that Aaron’s statement to
Young was made in furtherance of the conspiracy because Aaron testified that the
statement was about the crack that he had loaned, or “fronted,” McKinnies. See
Tinoco, 304 F.3d at 1119; Van Hemelryck, 945 F.2d at 1497-98. Additionally, the
statement was merely cumulative of other evidence establishing that McKinnies
had kept the crack in his impounded rental car, as Aaron testified about two
conversations that he had with McKinnies in which McKinnies told him that the
police had not found the crack in the impounded car. See Hock, 995 F.2d at 197.
Accordingly, the district court’s admission of this statement was not an abuse of
discretion constituting reversible error.
II. Constitutionality of §§ 841 and 846
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McKinnies further argues that we erred, in United States v. Sanchez, 269
F.3d 1250 (11th Cir. 2001) (en banc), in holding that § 841(b) is not facially
unconstitutional in light of Apprendi and its progeny. He urges us, instead, to
adopt the Ninth Circuit’s reasoning in United States v. Buckland, 259 F.3d 1157,
1163-68 (9th Cir. 2001), reversed, 289 F.3d 558 (9th Cir. 2002) (en banc), and
asserts that Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403
(2004), strengthens his argument.
We typically review constitutional issues de novo, but where, as here, the
defendant failed to raise his constitutional claim in the district court, we have
discretion whether to address the issue. See United States v. Wright, 392 F.3d
1269, 1280 (11th Cir. 2004), cert. denied, 125 S.Ct. 1751 (2005). A prior panel
decision is binding precedent that only can be overturned by our Court sitting en
banc. Morrison v. Amway Corp., 323 F.3d 920, 929 (11th Cir. 2003).
In Apprendi, the Supreme Court held that 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. Apprendi, 530 U.S. at 490, 120 S.Ct. at
2362-63. In Sanchez, we limited the scope of Apprendi to when judge-decided
facts increase a sentence above the statutory maximum, stating that Ҥ 841 is
impacted by Apprendi but only to the limited extent that judge-decided facts
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actually increase a defendant’s sentence above the prescribed statutory maximum.”
See Sanchez, 269 F.3d at 1268. We also relied on Sanchez to reject a facial
challenge to 21 U.S.C. § 960 in United States v. Tinoco, 304 F.3d 1088, 1098-99
(11th Cir. 2002).
We reject McKinnies’s request to declare §§ 841 and 846 unconstitutional.
First, McKinnies’s sentence was imposed based upon the jury’s finding that he
conspired with intent to distribute 50 grams or more of crack. Second, Sanchez
and Tinoco–our prior decisions that §§ 841 and 960 are constitutional after
Apprendi–are binding precedent. See Morrison, 323 F.3d at 929. For all of these
reasons, McKinnies’s argument that §§ 841 and 846 are unconstitutional must fail.
Upon review of the record and upon consideration of both parties’ briefs, we
find no reversible error.
AFFIRMED.
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