[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 28, 2007
No. 07-10396 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00031-CR-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERVIN MINCEY,
a.k.a. Debo,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(December 28, 2007)
Before BARKETT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Ervin Mincey appeals his conviction and 360-month sentence for
distribution of crack cocaine under 21 U.S.C. § 841(a)(1). On appeal, Mincey
argues first that the district court erroneously denied his motion to suppress
statements that he made during a post-indictment interview with Agent Kent
Munsey. Second, Mincey argues that the district court erred by admitting evidence
of his prior convictions under Federal Rule of Evidence 404(b). Finally, Mincey
appeals his 360-month sentence as unreasonable. For the reasons stated below, we
affirm both his conviction and sentence.
1. Motion to Suppress
We review the district court’s denial of a defendant’s motion to suppress
under a mixed standard of review, examining the district court’s findings of fact
for clear error and the district court’s application of law to those facts de novo.
United States v. Ramirez, 476 F.3d 1231, 1235-36 (11th Cir. 2007), cert. denied,
127 S.Ct. 2924 (2007). The court’s factual findings are construed in the light most
favorable to the prevailing party. Id.
It is undisputed that during his arraignment, Mincey requested court-
appointed counsel. Where an accused invokes his right to counsel, government
authorities may not subject him to further interrogation “until counsel has been
made available to him, unless the accused himself initiates further
communications, exchanges, or conversations with the police.” Edwards v.
2
Arizona, 451 U.S. 477, 484-85 (1981); see also Michigan v. Jackson, 475 U.S.
625, 630-32 (1986). However, “after a knowing and voluntary waiver of the
Miranda rights, law enforcement officers may continue questioning until and
unless the suspect clearly requests an attorney.”1 Davis v. United States, 512 U.S.
452, 461 (1994).
Upon close review of the record and the parties’ briefs, we discern no error
with respect to the denial of Mincey’s motion to suppress. In this case, the district
court found that although Mincey requested the assistance of counsel at his
arraignment, it was Mincey that initiated the interview with Agent Munsey. The
videotape of the interview depicts Agent Munsey beginning by asking Mincey, “So
what’s up?” When Mincey began talking, Agent Munsey stopped him to read him
his Miranda rights.2 Agent Munsey paused after each one and asked Mincey if he
understood. Mincey never indicated that he did not understand nor that he wished
to invoke his right to the presence of counsel, nor did he ever request to terminate
the interview. Mincey indicated that he was interested in finding out how he could
cooperate with police investigations to lower his own sentence, and he freely
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
Although on appeal Mincey asserts both his Fifth and Sixth Amendment rights to
counsel, where Miranda warnings are provided at a post-indictment, custodial interrogation, as is
the case here, a knowing and voluntary waiver of his Miranda right to counsel operates as a valid
waiver of his Sixth Amendment right to have counsel present at the interrogation. See Patterson
v. Illinois, 487 U.S. 285, 292-300 (1988).
3
discussed his knowledge of and experience in the drug trade.
Moreover, Mincey does not allege that he was subjected to any physical or
psychological pressure, or that the interview was unduly long. Although Mincey
alleges that “certain statements made by [Agent Munsey] implied that ‘he would
go to bat’ for [Mincey] in exchange for information of assistance to their
investigations,” Mincey has not offered any evidence that Agent Munsey coerced
or deceived him.
Finally, Mincey testified that he did not understand the nature of his Miranda
rights, and that he “thought [Agent Munsey] was like an attorney.” However,
Mincey had seven prior arrests and four felony convictions, and therefore, he was
“no novice to law enforcement procedures.” United States v. Gaddy, 894 F.2d
1307, 1312 (1990). More importantly, when asked by the government if he
discussed his involvement in the drug trade with Agent Munsey, Mincey replied, “I
ask for my Fifth Amendment on that.” Given Mincey’s background and conduct at
trial, the district court did not err in concluding that Mincey had the requisite
knowledge of his rights and knowingly waived his right to counsel during the
videotaped interview. Accordingly, we affirm the denial of his motion to suppress.
2. Evidence of Prior Convictions
Mincey argues that the district court erred in admitting evidence of his prior
4
convictions under Federal Rule of Evidence 404(b). Because Mincey failed to
challenge the government’s use of his prior convictions under Rule 404(b) in either
his motion in limine or at trial, we will review only for plain error. United States v.
Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003).
Rule 404(b) provides that evidence of other acts “is not admissible to prove
the character of a person. . .” but that such evidence “may be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake . . . .”
Mincey argues that the district court plainly erred in admitting evidence of
his prior convictions under Rule 404(b) because the “prejudicial impact of this
evidence far outweighed its negative probative value.” However, the evidence
was probative on the issue of intent, and the court twice gave the jurors instructions
to limit the prejudicial effect. As a result, we conclude that the district court did
not plainly err in admitting evidence of his prior convictions under Rule 404(b).
We also find meritless Mincey’s cursory challenge to the introduction of the video
taped interview.
3. Reasonableness of 360-Month Sentence
Mincey argues that his sentence of 360 months is unreasonable. He also
asserts that the Supreme Court’s decision in Almendarez-Torres v. United States,
5
523 U.S. 224 (1998), authorizing the use of prior convictions under a penalty
enhancement provision without alleging them in the indictment nor proving them
to the jury, is no longer good law. Finally, Mincey argues that we should revisit
and replace the reasonableness standard of reviewing sentences.
As an initial matter, we have held that we will continue to follow
Almendarez-Torres “unless and until the Supreme Court expressly overrules [it].”
United States v. Greer, 440 F.3d 1267, 1273 (11th Cir. 2006). Furthermore, the
Supreme Court held in United States v. Booker, 543 U.S. 220, 261 (2005), that
appellate courts are to apply a reasonableness standard in reviewing sentences, and
we deny Mincey’s request that we revisit and replace that standard in reviewing his
sentence. Based on the record, we find Mincey’s 360-month sentence, at the low-
end of the appropriate guidelines range, reasonable.
AFFIRMED.
6