[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 29, 2007
No. 06-14831 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00008-CR-FTM-29-SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEREMY JEROME MOORE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 29, 2007)
Before TJOFLAT, BIRCH and BLACK, Circuit Judges.
PER CURIAM:
Jeremy Jerome Moore appeals his conviction and sentence for being a felon
in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(e).
I. BACKGROUND
On July 23, 2005, Fort Myers police officer Candice Derrig pulled over a
silver Dodge Intrepid. The car was driven by Jeremy Kinchen. His cousin, Latroy
Pender, was in the passenger seat, and Moore was a passenger in the back seat.
As Derrig approached the car, she noticed the strong smell of marijuana.
The windows were rolled down, and Derrig observed that Moore had marijuana on
his shirt. After a backup officer arrived, Derrig ordered Moore out of the vehicle.
As Moore exited the vehicle, both Derrig and the backup officer noticed that he
was sitting on a handgun. Moore was subsequently arrested for possession of the
gun and ammunition. After a jury trial, Moore was found guilty of being a felon in
possession of a firearm. Moore asserts three issues on appeal, which we address in
turn.
II. DISCUSSION
A. Exclusion of Searcy’s Testimony
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Moore first contends the district court erred in excluding witness testimony
regarding the gun. At trial, Moore attempted to present testimony from Tamara
Searcy, Kinchen’s ex-girlfriend. According to the proffer, Searcy would have
testified that Kinchen had showed her a handgun in the glove compartment of the
Intrepid 19 days earlier. Searcy also would have testified the guns looked similar,
but she could not say the gun found with Moore was the same as the one possessed
by Kinchen. The district court excluded this testimony as irrelevant.
In general, all relevant evidence is admissible, and irrelevant evidence is
inadmissible. Fed. R. Evid. 402. “The trial court is vested with broad discretion in
ruling upon the relevancy and admissibility of evidence.” United States v.
Anderson, 872 F.2d 1508, 1515 (11th Cir. 1989). “‘Relevant evidence’ means
evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence.” Fed. R. Evid. 401.
The district court did not abuse its discretion in excluding Searcy’s
testimony. See United States v. Alaboud, 347 F.3d 1293, 1298 (11th Cir. 2003)
(stating evidentiary decisions are reviewed for abuse of discretion). The record
shows that, at best, Searcy would have testified she saw a gun in the glove
compartment of the Intrepid 19 days before Moore was caught with a gun in the
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back seat. The record further shows she could not identify the gun or say whether
it was the same gun on both occasions. Accordingly, the only thing Searcy’s
testimony would prove is that Kinchen had a gun in the car more than two weeks
before Moore was caught with a gun in the car. The fact Kinchen had a gun in the
glove compartment on July 4, 2005, does not make it more or less likely that
Moore had a similar gun in the back seat on July 23, 2005. Moreover, because
Searcy could do no more than testify the gun in the glove compartment was
“similar,” she could not establish possession with her testimony. Accordingly, the
testimony was not relevant. See Fed. R. Evid. 401.
B. Armed Career Criminal Act
Moore contends he should not have been sentenced under the Armed Career
Criminal Act (ACCA) because the qualifying prior convictions alleged in the
indictment were not submitted to, nor found by, a jury. Essentially, Moore is
arguing that Almenderez-Torres v. United States, 118 S. Ct. 1219 (1998), is no
longer good law. He additionally argues his case is distinguishable from
Almendarez-Torres because while Almendarez-Torres admitted his prior
convictions during his change of plea colloquy, Moore merely admitted he was a
convicted felon during his jury trial, and did not admit the actual prior offenses.
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In Almendarez-Torres, the Supreme Court held the government need not
prove beyond a reasonable doubt that a defendant had prior convictions or allege
those prior convictions in its indictment in order to use those convictions to
enhance a defendant’s sentence. 118 S. Ct. at 1233. We have consistently held that
Almendarez-Torres remains good law. In United States v. Shelton, we held that the
decision in Almendarez-Torres was “left undisturbed by Apprendi, Blakely, and
Booker,” and that “a district court does not err by relying on prior convictions to
enhance a defendant's sentence.” 400 F.3d 1325, 1329 (11th Cir. 2005).
Additionally, we have expressly stated we are “bound by Almendarez-Torres until
it is explicitly overruled by the Supreme Court.” United States v. Dowd, 451 F.3d
1244, 1253 (11th Cir.), cert. denied 127 S. Ct. 335 (2006).
It was not necessary for the jury to find all of Moore’s prior convictions
beyond a reasonable doubt. See Almendarez-Torres, 118 S. Ct. at 1233. Rather, it
was sufficient for the judge to find that Moore had the predicate convictions.
Shelton, 400 F.3d at 1329. Moore’s attempt to distinguish Almendarez-Torres is
equally without merit. The holding in Almendarez-Torres does not hinge on
whether a defendant goes to trial or admits his actual predicate offenses. See
Almendarez-Torres, 118 S. Ct. at 1233 (holding the government need not prove
beyond a reasonable doubt that a defendant had prior convictions or allege those
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prior convictions in its indictment in order to use those convictions to enhance a
defendant's sentence).
C. Reasonableness
Moore asserts his sentence is unreasonable because the district court gave
undue weight to the Guidelines, notwithstanding other factors that may have called
for a lesser sentence.
Following the Booker decision, the district court must first correctly
calculate the defendant's Guidelines range, then, using the § 3553(a) sentencing
factors,1 the court can impose a more severe or more lenient sentence as long as it
is reasonable. United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005). A
sentence within the advisory Guidelines range is not per se reasonable, but is
expected to be reasonable. See United States v. Talley, 431 F.3d 784, 788 (11th
Cir. 2005). A district court’s statement that it has considered the § 3553(a) factors
alone is sufficient, in post-Booker sentences, to indicate it considered the factors.
See United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).
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The § 3553(a) factors include the available sentences, the applicable Guidelines range
and policy statements, the nature and circumstances of the offense, and the need for the sentence
to: (1) reflect the seriousness of the offense, promote respect for the law, and provide just
punishment for the offense, (2) afford adequate deterrence to criminal conduct, (3) protect the
public from further crimes of the defendant, and (4) provide the defendant with needed
correctional treatment. 18 U.S.C. 3553(a).
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We conclude Moore’s 264-month sentence is reasonable. United States v.
Booker, 125 S. Ct. 738, 765 (2005) (holding sentences imposed under an advisory
Guidelines system are reviewed for reasonableness). The district court correctly
calculated Moore’s Guidelines range and sentenced Moore within that range, and
the district court explicitly stated it had considered the § 3553(a) factors.
Ultimately, the district court concluded that Moore’s history, both as a juvenile and
an adult, showed exactly the kind of person the ACCA was designed to address.
Given that Moore: (1) had a lengthy juvenile history, (2) was convicted for a
number of crimes at the age of 18, (3) violated his parole and was returned to
prison within months of when he was released from prison for the felonies he had
committed, and (4) committed the instant offense within days of his release from
incarceration for the parole violations; it is not unreasonable to conclude that
Moore’s youth and the short span of time during which he committed the predicate
offenses for the ACCA are not mitigating factors. It is not unreasonable to give a
mid-Guidelines sentence when considering all of the § 3553(a) factors, including
the need to protect the public, to provide deterrence, and to provide Moore with
needed correctional treatment. Accordingly, Moore’s sentence was reasonable.
AFFIRMED.
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