United States v. Leonard Allen, Jr.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
April 21, 2008
No. 07-10703 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 06-80070-CR-DMM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LEONARD ALLEN, JR.,
a.k.a. Little Dred,
WINFRED LORENZO HUNT,

Defendants-Appellants.

________________________

Appeals from the United States District Court
for the Southern District of Florida
_________________________

(April 21, 2008)

Before CARNES, PRYOR and FAY, Circuit Judges.

PER CURIAM:
 Leonard Allen and Winfred Lorenzo Hunt appeal their convictions and life

sentences for committing drug trafficking offenses in 2006, all in violation of 21

U.S.C. § 841, as to Hunt and Allen, and possessing a firearm and ammunition as a

convicted felon, in violation of 18 U.S.C. § 922(g), as to Allen.1

Allen and Hunt argue that (1) the district court erred in denying their motion

to suppress evidence gathered pursuant to a wiretap because the government’s

wiretap application did not establish necessity, as required by 18 U.S.C.

§ 2518(c)(1); (2) the district court erred in denying their motion to suppress

evidence gathered during a traffic stop of Allen’s car because the police officers

who conducted the stop had no probable cause to believe, or reasonable suspicion,

that Allen was driving the car; (3) the district court erred under Fed.R.Evid. 404(b)

in admitting testimony that a codefendant had purchased drugs from Allen in 2003

1
Allen and Hunt were charged by a federal grand jury, in a 40-count third superceding
indictment that also named 14 codefendants, as follows: (1) Allen and Hunt with conspiracy to
distribute at least 50 grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (“Count
1”); (2) Hunt with 32 counts of possession of, with intent to distribute, either an unknown amount
or at least 5 grams of crack cocaine, in violation of § 841(a)(1) (“Counts 2-23, 25-29, 31-35”);
(3) Allen and Hunt with possession of, with intent to distribute, at least 50 grams of crack cocaine,
in violation of 21 U.S.C. § 841(a)(1) (“Count 24”); (4) Hunt with conspiracy to possess with intent
to distribute at least 500 grams of crack cocaine, in violation of §§ 841(a)(1) and 846 (“Count 30”);
(5) Allen with possession of a firearm and ammunition as a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1) and 924(e) (“Count 37”); (6) Allen with possession of, with intent to distribute,
at least 5 grams of crack cocaine, in violation of § 841(a)(1) (“Count 38”); and (7) Hunt with
conspiracy to launder money, in violation of 18 U.S.C. § 1956(a)(1)(A)(I) and (b)(I) (“Count 40”).
After Allen’s, Hunt’s, and one other codefendant’s joint jury trial, Counts 21, 25, and 40 against
Hunt were dismissed on the government’s motion, and the jury found Allen guilty of Counts 1, 24,
37, and 38, and Hunt guilty of Counts 1-4, 6-20, and 22-34.

2
and Hunt in 2005 and testimony that Allen once gave a 16-year-old a gun; and

(4) the district court erred in sentencing them as career offenders when their prior

convictions were neither pled in the indictment nor proven to the jury beyond

reasonable doubt. For the reasons discussed below, we affirm Allen’s and Hunt’s

convictions and sentences.

I. Wiretap

As part of its investigation of a suspected South Florida crack cocaine

distribution ring, the Drug Enforcement Agency (“DEA”) applied for a wiretap on

the cellular telephone of Hunt, the suspected ringleader. With its application, the

government submitted the affidavit of a DEA special agent.

In the affidavit, the agent stated that a wiretap was necessary because normal

investigative techniques had failed or been of only limited success, or reasonably

appeared likely to fail or be too dangerous to employ. The agent specifically

explained the following. The government had used three confidential defendants

(“CD1,” “CD2,” and “CD3”) and three sources of information (“SI1,” “SI2,” and

“SI3”). Although the confidential defendants and sources of information had

provided information, it was “historical in value” and was of little use in

identifying the organization’s members, sources of supply, or methods of

operation. Moreover, the confidential defendants and sources of information

3
would not supply any further information. CD1 no longer was working with the

government because Hunt had become suspicious and stopped talking to him.

CD2 worked with the government for a short time after his arrest, but had since

stopped. CD3’s connection to Hunt’s organization was limited to purchasing street-

level amounts of crack cocaine, so that he could not provide any information on the

internal workings of the organization. Likewise, both S1 and S3 had stopped

cooperating with the government, and S2’s connection to Hunt’s organization was

limited to street-level activity.

The government also had used physical surveillance. While their

surveillance, which included the use of a pole camera, had generated information

that led to the arrest of street-level purchasers and the confiscation of small

amounts of crack cocaine, it had not and could not yield information on the

manufacturing or distribution dynamics within Hunt’s organization. For instance,

the government could not get close enough to Hunt and the others to hear the

contents of their communications. Also, because of the layout of the area

surrounding the key distribution point used by Hunt’s organization, which

consisted of duplexes, small lots, and limited exits, as well as Hunt’s control and

counter-surveillance of the area, it was “impossible” to thoroughly surveil the

distribution point.

4
 The government further had used toll records of the incoming and outgoing

calls on Hunt’s cellular telephone, undercover police officers, and trash pulls. The

toll records were helpful only in corroborating information provided by the

confidential defendants and sources of information, but could not reveal the

identifications of the callers or the contents of the communications. While

undercover police offers had been able to purchase street-level amounts of crack

cocaine from people associated with Hunt’s organization, they had been unable to

infiltrate the organization and gather evidence on its full scope. Also, Hunt and the

others had been arrested in the past for crimes of violence, such that continued

investigation by undercover police officers posed risks to their safety. While trash

pulls also had yielded information about names and locations, the information had

proved limited. Also, in order to make the trash pulls, the police officers had to

dress as garbage men. Because an actual garbage man recently had been

threatened with a gun by Hunt and Allen for an unrelated reason, this method also

posed a risk to police officers.

The government had considered using a grand jury investigation and

tracking devices placed on Hunt’s cars. A grand jury investigation using

subpoenas of the suspects would alert Hunt’s organization of the investigation,

likely causing them to destroy evidence. Also, the parties subpoenaed likely would

5
not testify for fear of reprisal or self-incrimination. Tracking Hunt’s cars would be

prohibitively difficult and futile, as Hunt owned at least ten cars and rented

countless others.

The district court authorized the wiretap, finding that the government had

established that it was necessary. Before their trial, Allen and Hunt joined a

motion to suppress evidence gathered pursuant to the wiretap, arguing that the

affidavit did not show that a wiretap was necessary. The district court denied the

motion, and, at trial, evidence gathered pursuant to the wiretap was admitted.

We review a district court’s denial of a motion to suppress evidence under a

mixed standard. United States v. Garcia-Jaimes, 484 F.3d 1311, 1320 (11th Cir.

2007), petition for cert. filed, (U.S. Jun 11, 2007)(No. 06-11863). Specifically, the

district court’s findings of fact are reviewed for clear error, while its application of

law to those facts is reviewed de novo. Id.

The district court’s authority to authorize electronic surveillance is found in

Title III of the Omnibus Crime Control and Safe Streets Act of 1968. 18 U.S.C.

§§ 2510-2520. Title III sets forth numerous requirements the government must

meet before surveillance may be authorized. See 18 U.S.C. § 2518(c)(1). Among

these is the requirement that the government prove that a wiretap is necessary. See

18 U.S.C. § 2518(c)(1). Specifically, a wiretap application must include “a full

6
and complete statement as to whether or not other investigative procedures have

been tried and failed or why they reasonably appear to be unlikely to succeed if

tried or to be too dangerous.” Id. We have held, however, that the “affidavit need

not. . . show a comprehensive exhaustion of all possible techniques, but must

simply explain the retroactive or prospective failure of several investigative

techniques that reasonably suggest themselves.” United States v. Van Horn, 789

F.2d 1492, 1496 (11th Cir. 1986).

We previously have considered, and found sufficient to show necessity, an

affidavit very similar to the one presented by the DEA in this case. Id. at 1497. In

Van Horn, the Federal Bureau of Investigation (“FBI”) applied for a wiretap to

intercept communications taking place in the office of a man suspected of running

a drug distribution ring that used speedboats to transport marijuana from freighters

into the United States. Id. at 1495. To establish that the wiretap was necessary, the

FBI submitted the affidavit of an agent. See id. at 1496.

The agent first explained that physical surveillance of the marijuana off-load

operations was impossible because of anti-surveillance techniques used by the

ringleader. Id. at 1496-97. The agent also explained that physical surveillance of

the man’s office would be impossible, given the physical layout of the area. Id. at

1497. The agent further explained that any physical surveillance conducted would

7
establish only that members of the man’s organization were meeting but would not

provide admissible evidence that they had committed crimes. Id. Second, the

agent explained that “a search of the premises. . . had been considered and rejected

because it was not believed that there was sufficient physical evidence there to

reveal the entire conspiracy or to successfully prosecute its members.” Id. Third,

the agent explained that a “sting” operation involving undercover agents and

informants would not work because undercover agents already had tried, and

failed, to gain an introduction to the man in question and because the informants

feared for their lives. Id. Finally, the agent explained that conducting a grand jury

investigation was rejected because the necessary witnesses were members of the

conspiracy and likely would not voluntarily testify. Id.

As stated above, the affidavit presented here was similar to the affidavit

submitted in Van Horn, which we ultimately found sufficient. See id. at 1496-97.

Just as in Van Horn, the agent here explained that useful physical evidence was

nearly impossible to collect because of Hunt’s counter-surveillance measures and

the layout of the area to be surveilled. See id. The agent also explained that

physical surveillance could not provide the evidence needed to prove criminal

wrongdoing, namely the contents of the alleged co-conspirators’ conversations.

Also just as in Van Horn, the agent here explained that undercover police officers

8
had not been able to infiltrate Hunt’s organization and that the confidential

defendants and sources of information previously used no longer were providing

helpful information. See id. at 1497. Further just as in Van Horn, the agent here

explained that a grand jury investigation would not meet the government’s needs

because the necessary parties likely would not testify voluntarily. See id.

Beyond these similarities, the agent here arguably provided more

information than provided in Van Horn, by explaining that car tracking would not

suffice because Hunt used so many cars, that trash pulls posed a risk and had not

yielded much useful information, and that toll records had revealed only times of

calls and not the contents of the communications. Based on these similarities and

the sufficiency of the evidence presented, we find that the affidavit established that

the wiretap was necessary. See 18 U.S.C. § 2518(c)(1).

The fact that the traditional methods in use were producing evidence does

not alter our conclusion. In the affidavit, the agent repeatedly emphasized that this

evidence was of street-level transactions only, and therefore unhelpful to the

government’s goal of revealing the entire conspiracy. Nothing in the law requires

that the traditional methods be entirely useless or that the district court force the

government to redefine its objectives. Indeed, as we indicated in Van Horn, the

government’s ultimate objective and the traditional methods’ usefulness to that

9
objective are important to the necessity inquiry. See Van Horn, 789 F.2d at 1497.

Also, the fact that the agent here failed to explain why other confidential

defendants and sources of information could not be recruited does not alter our

conclusion, as the affidavit otherwise thoroughly established that the traditional

methods were insufficient. Accordingly, we affirm Allen’s and Hunt’s convictions

as to this issue. See Garcia-Jaimes, 484 F.3d at 1320.

II. Traffic Stop

Mary Rita Duggan, an officer with the Delray Police Department, testified

that, on February 16, 2006, she was conducting surveillance of a house thought to

be used by Hunt’s drug-distribution ring for drug transactions. Her method of

surveillance included making continuous “drive-bys.” While driving by, she saw a

green car owned by Allen and another car parked near the house, and Allen, Hunt,

and a third man that she could not identify “standing around, chatting.” Duggan

drove by the house three or four times, and the parties and the cars remained. On

her fourth or fifth drive-by, however, the parties and the cars were gone. She

alerted other police officers on the surveillance team.

Todd Otsuni, an officer with the Palm Beach County Sheriff’s Office,

testified that, on February 16, 2006, he received an assignment to stay

approximately two to three miles behind a green car that belonged to Allen and

10
was traveling north on Interstate-95. He was told that a traffic block had been set

up at the bottom of a certain exit ramp and that a traffic stop of the green car would

be conducted at that predetermined place. He was told that the basis of the traffic

stop was that Allen, the suspected driver, was a habitual traffic offender with a

suspended license and had fled from police officers approximately ten days prior

while driving the green car. After the green car was stopped and its occupants

exited, Otsuni saw a “trail of crack cocaine leading [from Allen’s passenger] back

to the car” and a gun on the road near Allen’s passenger, which Allen’s passenger

claimed he took from Allen just before exiting the car. Upon conducting a search

of the car, more crack cocaine was found. Allen and his passenger both were

arrested and the crack cocaine and gun confiscated. These items were admitted

into evidence.

On cross-examination, Otsuni admitted that, until Allen got out of the

green car, Otsuni did not see Allen driving, but instead assumed that Allen was

driving because it was his car. Otsuni also admitted that, in a report written after

the incident, he stated that Allen was observed driving the green car. At this point,

Allen made a motion to suppress the evidence gathered during the traffic stop.

Allen explained that he did not make the motion before trial because Otsuni’s

report indicated that Allen had been seen driving the green car before the stop. The

11
district court denied the motion, finding it groundless.

As stated above, we review a district court’s denial of a motion to suppress

evidence under a mixed standard. Garcia-Jaimes, 484 F.3d at 1320. Specifically,

the district court’s findings of fact are reviewed for clear error, while its application

of law to those facts is reviewed de novo. Id.

The Fourth Amendment guarantees “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures.” Whren v. United States, 517 U.S. 806, 809-810, 116 S.Ct. 1769, 1772,

135 L.Ed.2d 89 (1996). The temporary detention of individuals during the stop of

an automobile by the police, even if only for a brief period and for a limited

purpose, constitutes a “seizure” of “persons” within the meaning of this provision.

Id. Such an automobile stop is reasonable and constitutional, however, if it is

based on either probable cause to believe that a traffic violation has occurred or

reasonable suspicion that a crime has been or will be committed. United States v.

Chanthasouxat, 342 F.3d 1271, 1275 (11th Cir. 2003) (citing Whren, 517 U.S. at

810, 116 S.Ct. at 1772; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889).

A stop is supported by reasonable suspicion if, under the totality of the

circumstances and “from the collective knowledge of the officers involved in the

stop,” the police officers have an objectively reasonable suspicion that someone

12
has engaged, or is about to engage, in a crime. United States v. Acosta, 363 F.3d

1141, 1144-45 (11th Cir. 2004). We have cautioned that the suspicion must be

“more than an inchoate and unparticularized suspicion or hunch.” Id.

Here, based on the collective knowledge of all of the police officers

involved, there was more than a hunch that Allen was driving the car and

committing a crime, namely driving with a suspended license. See id. The green

car that was stopped belonged to Allen. Ten days before the stop, Allen had

alluded police officers while driving the green car, such that they knew he drove

the green Buick. Moreover, Duggan testified that, on her first drive-by, she saw

Allen, Hunt, and another man at the house with the green car and another car and

that, on her last drive-by, the three men and the two cars were gone. Thus, the

police officers had an objectively reasonable suspicion that Allen was driving the

green car. See Chanthasouxat, 342 F.3d at 1275. Although none of the police

officers saw Allen behind the wheel and his passenger could have driven the car

from the house or Allen could have been in the other car that left the house, it was

reasonable to believe that Allen was driving his car. See id.

Also, because the police officers knew that Allen was driving with a

suspended license, it was objectively reasonable to believe that he was committing

a crime by driving the green car. See Chanthasouxat, 342 F.3d at 1275.Therefore,

13
we find that the traffic stop was supported by reasonable suspicion. See id.

Because the traffic stop was supported by a reasonable suspicion, there is no

need to determine whether the police officers had probable cause that a traffic

violation had occurred or would occur. Accordingly, we affirm Allen’s and Hunt’s

convictions as to this issue. See Garcia-Jaimes, 484 F.3d at 1320. F.3d at 1320.2

III. Rule 404(b) Evidence

At Allen’s and Hunt’s joint trial, Ronald Gamble, who was indicted as a

codefendant of Allen and Hunt and pled guilty and cooperated with the

government in order “to help [himself] best as possible,” testified that he purchased

crack cocaine from Allen from 2003 to 2005. Allen objected to this testimony on

the grounds that it violated Rule 404(b), but the district court allowed it. Gamble

also testified that he began buying crack cocaine from Hunt in 2005. Hunt did not

object. At the conclusion of the government’s direct examination, the district court

instructed the jury that it could not consider Allen’s prior drug transactions with

Gamble in determining Allen’s guilt of the crimes charged. The district court

instructed that this testimony could be considered only if the jury found beyond a

2
Allen and Hunt do not argue that the traffic stop unlawfully matured into an arrest before
there was probable cause or that the police officers lacked probable cause to arrest them and seize
the gun and crack cocaine found in the car and on the passenger’s person. Accordingly, we need
not address these issues. See United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998)
(holding that when a defendant fails to offer argument on an issue, it is abandoned).

14
reasonable doubt that Allen was guilty and only for the limited purpose of

determining if Allen had the requisite state of mind or intent, acted according to a

plan to commit a crime, or committed the crimes charged by accident or mistake.

Hunt elected not to have a similar instruction read on his behalf.

Michael Drayton, who also was charged as a codefendant of Allen and Hunt

and pled guilty and cooperated with the government in exchange for dropped

charges and a potentially reduced sentence, testified that police officers found

bullets at his apartment. Certain of these bullets belonged to his cousin, Damien,

who was 16 years old. Damien also had a gun for these bullets. Drayton

“guess[ed]” that Damien got the gun from Allen. Allen objected to this statement

on the grounds that it was speculative. To establish predicate for the statement, the

government asked how Drayton knew that Allen had given Damien the gun, and

Drayton said because Allen talked about getting the gun back from Damien. Allen

objected to this statement on the grounds that it was hearsay and irrelevant, but the

district court allowed it and the previous statement.

We review the district court’s decision to admit evidence of other crimes,

wrongs, or acts for an abuse of discretion. United States v. Matthews, 431 F.3d

1296, 1311 (11th Cir. 2005). However, where a defendant fails to preserve an

evidentiary ruling by contemporaneously objecting, we review the ruling for plain

15
error. United States v. Turner, 474 F.3d 1265, 1275 (11th Cir. 2007). To prove

plain error, a defendant must show: (1) error, (2) that is plain, and (3) that affects

his substantial rights. Id. at 1276. If the defendant satisfies all three conditions, we

may exercise our discretion to recognize the error, if it “seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id.

Pursuant to Rule 404(b),

[e]vidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.

We have established such evidence is admissible if (1) it is relevant to an

issue other than the defendant’s character; (2) it is established by sufficient proof to

permit a jury to find that the defendant committed the extrinsic act; and (3) its

probative value is not substantially outweighed by its undue prejudice. Matthews,

431 F.3d at 1310-11.

Regarding the first prong of this test, a defendant who enters a not guilty

plea makes intent a material issue, which imposes a substantial burden of proof on

the government and which the government may prove with qualifying Rule 404(b)

evidence. United States v. Edouard, 485 F.3d 1324, 1345 (11th Cir. 2007). The

relevance of such evidence offered to prove intent is determined by comparing the

16
defendant’s state of mind in perpetrating both the extrinsic and charged offenses.

Id. Regarding the second prong of this test, the testimony of codefendants offered

in exchange for potentially reduced sentences will suffice, especially where the

defendant offers nothing to rebut the testimony. Id. Regarding the third prong of

this test, we must consider whether it appeared at the commencement of trial that

the defendant would contest the issue of intent, the overall similarity of the charged

and extrinsic offenses, and the temporal proximity between the charged and

extrinsic offenses. Id. As to the temporal proximity of the acts, we previously

have found that a six-year span between drug offenses was not so remote as to

diminish the prior act’s probative value. United States v. Calderon, 127 F.3d 1314,

1332 (11th Cir.1997). We also have explained that any unfair prejudice possibly

caused by admitting evidence of prior offenses is mitigated by a district court’s

limiting instruction to the jury. Edouard, 485 F.3d at 1346.

As to Gamble’s testimony on Allen, this evidence of a prior wrong was

relevant to an issue other than Allen’s character. See Matthews, 431 F.3d at

1310-11. Allen put his intent at issue by pleading not guilty to the conspiracy

charge. See Edouard, 485 F.3d at 1345. The prior wrong of selling drugs and the

charged offense of selling drugs involve the same state of mind. See id. Also,

Gamble’s testimony was sufficient to allow the jury to determine that the prior

17
wrong occurred. See Edouard, 485 F.3d at 1345; Matthews, 431 F.3d at 1310-11.

Even though Gamble testified for the government “to help [himself] best as

possible],” Allen did not attempt to rebut the testimony and Gamble’s statements

were made against his interest. See Edouard, 485 F.3d at 1345. Furthermore, the

probative value of Gamble’s testimony was not substantially outweighed by its

prejudicial effect. See Matthews, 431 F.3d at 1310-11. As stated above, Allen

made his intent a material issue by pleading not guilty. See Edouard, 485 F.3d at

1345. The prior wrong consisted of selling crack cocaine to Gamble, such that it

was similar in all known respects to the charged offenses of conspiring to sell crack

cocaine and possessing crack cocaine with the intent to sell it. See Edouard, 485

F.3d at 1345. Gamble testified that Allen was his crack cocaine dealer between

2003 and 2005, such that the prior wrong occurred within one year of the offenses

charged and fell well within the six-year difference previously found not to violate

the third prong of the test. See Calderon, 127 F.3d at 1332. The district court gave

a limiting instruction to cure any prejudicial effect of Gamble’s testimony. See

Edouard, 485 F.3d at 1346. Accordingly, we affirm Allen’s conviction as to this

issue with respect to Gamble’s testimony, because the district court did not abuse

its discretion in admitting this testimony. See Matthews, 431 F.3d at 1311.

As to Gamble’s testimony about Hunt, if the district court did not abuse its

18
discretion regarding Gamble’s testimony about Allen, it did not abuse its discretion

in admitting almost identical testimony about Hunt. See Matthews, 431 F.3d at

1311. Accordingly, we affirm Hunt’s conviction as to this issue with respect to

Gamble’s testimony, because it did not violate Rule 404(b).3

As to Drayton’s testimony about Allen, our review is limited to determining

whether the district court committed plain error. See Turner, 474 F.3d at 1275.

Allen’s objections that the testimony was speculative was not the same as an

objection that the testimony constituted improper evidence of other crimes,

wrongs, or acts, under Rule 404(b). This objection was, therefore, insufficient to

preserve a Rule 404(b) objection.

While it is not especially clear, Drayton’s testimony of a prior wrong may

have been relevant to an issue other than Allen’s character. See Matthews, 431

F.3d at 1310-11. Drayton’s testimony may have been relevant to the government’s

3
The government argued on appeal that Hunt’s argument that Gamble’s testimony about him
violated Rule 404(b) should be reviewed for plain error only. It is not clear which standard best
applies. See Matthews, 431 F.3d at 1311; Turner, 474 F.3d at 1275. At the beginning of their joint
trial, the parties agreed that an objection by one was an objection by all unless a defendant
specifically opted out. When Allen made his Rule 404(b) objection to Gamble’s testimony, Hunt
did not opt out. However, because the testimony given at the point of the objection had nothing to
do with Hunt, it is arguable that the objection did not either. Moreover, when the district court judge
later gave the limiting instruction regarding Gamble’s testimony about Allen, Hunt specifically
opted not to have a similar instruction read as to Gamble’s testimony about himself, such that it is
arguable he did opt out of Allen’s Rule 404(b) objection. We need not resolve this issue, however,
because the district court did not abuse its discretion in admitting the testimony and, therefore, could
not have committed plain error. See id.

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charge that Allen was a convicted felon in possession of a gun, in that it illustrated

that Allen had the opportunity to possess a gun and did not possess a gun through

accident or mistake. See Fed.R.Evid. 404(b). Also, although it lacked the normal

indicia of reliability, in that Drayton only “guess[ed]” at the source of the gun,

Drayton’s testimony seemed sufficient to allow the jury to determine that the prior

wrong occurred. See Edouard, 485 F.3d at 1345; Matthews, 431 F.3d at 1310-11.

Furthermore, the probative value of Gamble’s testimony was not substantially

outweighed by its prejudicial effect. See Matthews, 431 F.3d at 1310-11.

Although Drayton did not provide enough testimony to analyze the similarity and

temporal proximity of the prior wrong and Allen’s charged gun offense, the fact

that Drayton stated that he could only “guess” that Allen was the source of the gun

may well have diminished the testimony’s prejudicial effect in the minds of the

jury. See Edouard, 485 F.3d at 1345. Thus, it is not clear that the district court

committed an error that was plain. See Turner, 474 F.3d at 1276.

Even had the district court committed an error that was plain, however, the

record does not demonstrate that the error affected Allen’s substantial rights or

affected the fairness, integrity, or public reputation of the judicial proceedings. See

id. Other evidence presented at trial clearly established that Allen had access to

guns. For instance, Allen’s passenger during the traffic stop was caught with a

20
gun and indicated that the gun came from Allen. Thus, the jury did not learn

anything through this evidence that it had not already heard. Accordingly, we

affirm Allen’s conviction as to this issue with respect to Drayton’s testimony,

because it was not plain error for the district court to admit it. See Turner, 474

F.3d at 1275-76.

IV. Career Offender

Before Allen’s and Hunt’s separate sentencing hearings, a probation officer

prepared presentence investigation reports. In these, the probation officer indicated

that Allen and Hunt were career offenders. While the probation officer did not

alter Allen’s and Hunt’s offense levels based on this determination,4 he did set their

criminal history categories at VI based on this finding. Both before and at their

separate sentencing hearings, Allen and Hunt objected to being sentenced as career

offenders in this manner, as their prior convictions were neither pled in the

indictment nor proven to the jury. Relying on this Circuit’s binding case law, the

district court denied their objections and sentenced both Allen and Hunt to life

imprisonment.5

4
The probation officer found that the offense levels reached using Allen’s and Hunt’s
offenses, specific offense characteristics, and enhancements was greater than the level mandated by
U.S.S.G. § 4B1.1(b) for career offenders.
5
Allen’s and Hunt’s total offense levels were 42 and criminal history categories were VI.
Thus, their guideline imprisonment ranges were 360 months to life. However, because the statutory
term of imprisonment for Counts 1 and 24 was life, pursuant to 21 U.S.C. § 841(b)(1)(A), U.S.S.G.

21
 We review constitutional errors in sentencing de novo, but will reverse only

for harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). We

lack authority to alter Supreme Court precedent. See Hohn v. United States, 524

U.S. 236, 252-53, 118 S.Ct. 1969, 1978, 141 L.E.2d 242 (1998).

In Almendarez-Torres, the Supreme Court held that the government need not

allege prior convictions in its indictment or prove such prior convictions beyond a

reasonable doubt before using them to enhance a defendant’s sentence. 523 U.S. at

243-44, 118 S.Ct. at 1230-31. This rule has been reaffirmed by the Supreme

Court. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63,

147 L.Ed.2d 435 (2000) (creating a prior-conviction exception by 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, 301,

303-04, 124 S.Ct. 2531, 2536, 2537-38, 159 L.Ed.2d 403 (2004) (reiterating the

Apprendi Court’s language); Booker v. United States, 543 U.S. 220, 244, 125 S.Ct.

738, 756, 160 L.Ed.2d 621 (2005) (holding that “[a]ny fact (other than a prior

conviction) which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury verdict must be

§ 5G1.1(c)(2) mandated that their guideline imprisonment ranges be life.

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admitted by the defendant or proved to a jury beyond a reasonable doubt”). In

Shepard, the Supreme Court arguably cast doubt on the continuing validity of

Almendarez-Torres by explaining that, while determining whether a prior burglary

was a violent felony for the purposes of the armed-career-criminal enhancement

could be “described as a fact about a prior conviction, it [was] too far removed

from the conclusive significance of a prior judicial record, and too much like the

findings subject to Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143

L.Ed.2d 311 (1999)] and Apprendi, to say that Almendarez-Torres clearly

authorizes a judge to resolve the dispute.” 544 U.S. at 25-26, 125 S.Ct. at 1262-63

(limiting the types of evidence a district court can consider in making the

determination).

However, we have held that Almendarez-Torres controls, even in light of

Shepard. See United States v. Camacho-Ibarquen, 410 F.3d 1307, 1316 n.3 (11th

Cir. 2005) (“Although recent decisions, including Shepard . . . , may arguably cast

doubt on the future prospects of Almendarez-Torres’s holding regarding prior

convictions, the Supreme Court has not explicitly overruled Almendarez-Torres.

As a result, we must follow Almendarez-Torres.”); United States v.

Orduno-Mireles, 405 F.3d 960, 963 (11th Cir. 2005) (“Almendarez-Torres remains

the law until the Supreme Court determines that Almendarez-Torres is not

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controlling precedent.”).

Here, the district court appropriately applied Almendarez-Torres. See

Camacho-Ibarquen, 410 F.3d at 1316 n.3. Accordingly, the district court did not

err in sentencing Hunt and Allen as career criminals, and we affirm their sentences.

CONVICTIONS AND SENTENCES AFFIRMED.

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