United States v. Beckles

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-15062 APRIL 17, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 07-20305-CR-CMA

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TRAVIS BECKLES,

Defendant-Appellant.

________________________

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

(April 17, 2009)

Before BIRCH and MARCUS, Circuit Judges, and FORRESTER,* District Judge.

*
Honorable J. Owen Forrester, United States District Judge for the Northern District of
Georgia, sitting by designation.
MARCUS, Circuit Judge:

Travis Beckles appeals from his conviction and sentence for possession of a

firearm by a convicted felon in violation of 18 U.S.C. § 922(g). He claims that his

conviction should be overturned both because the district court erred in denying

his motion to suppress his post-arrest statements, and because the evidence was

insufficient to permit a reasonable jury to find beyond a reasonable doubt that he

knowingly possessed a firearm. Finally, Beckles argues that his sentence should

be reversed because: (1) the district court plainly erred in sentencing him as a

career offender under § 4B1.1 of the United States Sentencing Guidelines; (2) the

sentence was unreasonable; and (3) the sentence violated the Fifth and Sixth

Amendments to the United States Constitution since facts about his prior

convictions were not found by the jury or charged in the indictment. After

thorough review, we affirm both the conviction and the sentence.

I.

On April 24, 2007, Beckles was indicted by a federal grand jury in the

United States District Court for the Southern District of Florida for possession of a

firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g) and 924(e).

Shortly thereafter, he moved to suppress all of the post-arrest statements he made

to the Federal Bureau of Investigation (“FBI”), arguing that they were obtained in

1
violation of his Fifth Amendment right to remain silent, due process, and Miranda

v. Arizona, 384 U.S. 436 (1966).

A. The Suppression Hearing

After conducting an evidentiary hearing on the motion to suppress, the

magistrate judge determined that the defendant was fully advised of his Miranda

rights, understood his rights, and voluntarily, knowingly and intelligently waived

them before speaking to Special Agent John Jefferson of the FBI. During the

evidentiary hearing, the government presented testimony from Special Agent

Jefferson, who interviewed Beckles on the day of his arrest and was present when

the defendant was read his Miranda rights. Jefferson testified that Beckles was

not only read his Miranda rights but that Beckles also initialed each line of a

written copy of those rights after they were read aloud to him to indicate his

understanding. Beckles then signed the entire Miranda rights form.

Special Agent Jefferson added that Beckles signed a form indicating that he

was not under the influence of alcohol or drugs and understood English. Jefferson

also said that Beckles did not evince any difficulty in understanding the

documents that were read to him, or that Beckles was under the influence of any

drugs, alcohol, or medication. He testified that Beckles never requested an

attorney during the interview nor gave any indication he wished an attorney to be

2
present. Finally, Jefferson said that Beckles cooperated throughout the interview

and even volunteered to assist the government as an informant.

Beckles also testified at the suppression hearing, giving an account at war

with that of Special Agent Jefferson. Beckles claimed that he told Jefferson he

wanted to consult with a lawyer and that he only initialed and signed the written

copy of his Miranda rights because he was advised that he could not speak to a

lawyer until the paper was signed. Beckles also testified that he did not tell the

law enforcement officers he could read and write English, and signed the form

indicating he could only because he was under the influence of marijuana.

Beckles added that he did not understand what was going on during the interview,

and explained that he had difficulty reading English but that he could understand

spoken English.

The magistrate judge specifically credited Jefferson’s account of his

meeting with the defendant, finding that the defendant was fully afforded Miranda

warnings orally and in writing, that the defendant understood his rights, and that

the defendant knowingly and voluntarily answered the agent’s questions. The

district court adopted the magistrate judge’s Report and Recommendation and

denied the motion to suppress.

B. The Trial

3
 Beckles was tried and convicted on all counts by a jury. The government

adduced the following evidence. On April 11, 2007, while Miami Dade Detective

Diego Castro was investigating a different case, he saw Beckles loitering in a

public facility. When Castro, who was wearing a vest and shirt identifying himself

as a police officer, exited his car, the defendant fled on foot. Castro followed

Beckles, identified himself as a police officer, and instructed the defendant to stop

running. Beckles fled to a nearby apartment. Castro heard screams from the

apartment, and, after he knocked on the door, a woman, Tiovanni Jones, emerged

and told Castro to remove Beckles (whom she claimed not to know) from her

apartment. Castro took Beckles into custody and placed him in a police car.

After Beckles was secured, Detective Castro spoke to Jones, who this time

said that Beckles was her boyfriend, that he lived in the apartment at least part-

time, and that he helped her pay the rent. Jones also claimed that there was a gun

in the bedroom that she wanted removed for the safety of her child. After

obtaining her permission to search the bedroom, Castro was unable to locate the

gun. Castro then asked Beckles where the firearm was located. The defendant

told Castro that there was a gun under the bed, but Castro was still unable to find

it. Castro then brought Beckles into the apartment and Beckles told him that there

was a shotgun under the mattress. Castro recovered the shotgun.

4
 The prosecution also presented the testimony of Jones, who said that she

lived in the apartment with her six-year-old son and her sister and that Beckles

was her part-time live-in boyfriend. Jones added that neither she nor her sister

kept a firearm in the apartment.

Later that day, FBI agents returned to Jones’s apartment and photographed

clothing and other items belonging to Beckles, including a toothbrush, a watch,

and identification. Finally, the government offered at trial the testimony of

Special Agent Jefferson, who said that, after being read his Miranda rights,

Beckles acknowledged that he was a drug dealer associated with a street gang, that

he acquired the shotgun for protection, and that he kept the firearm in the

apartment where he lived.

The government presented two stipulations of fact: that the defendant had

been convicted in May 2004 of a felony crime punishable by imprisonment for a

term exceeding one year; and that the Browning shotgun recovered by Detective

Castro on April 11, 2007 had traveled in commerce.

The defendant rested without presenting any additional witnesses.

C. The Sentence

The Presentence Investigation Report (“PSI”) reported that the offense of

conviction was subject to a 15-year minimum term of imprisonment and a

5
maximum of life. According to the PSI, “Detective Castro . . . recovered a sawed

off Browning shotgun underneath the mattress” in the bedroom of Jones’s

apartment after Beckles told him that was where the gun was located. (PSI ¶ 6). It

calculated his base offense level at 26, because an 18 U.S.C. § 922(g)(1) offense

involves, among other things, a “firearm that is described in 26 U.S.C. § 5845(a).”

(PSI ¶ 12). The PSI also found that Beckles is an armed career criminal subject to

an enhanced sentence under 18 U.S.C. § 924(e) and the career offender provision

contained in § 4B1.1 of the Sentencing Guidelines, because Beckles was 18 years

old at the time of the instant offense, “the instant offense is a felony crime of

violence (unlawful possession of a sawed-off shotgun),” and Beckles had two

prior controlled substance felony convictions. (PSI ¶ 18). Thus, it calculated that

Beckles had a total offense level of 37.

The PSI set forth Beckles’s criminal history which included, in relevant

part: (1) five convictions for possession with the intent to sell, manufacture, or

deliver cocaine; (2) marijuana and cannabis possession offenses for which

adjudication was withheld; and (3) a conviction for burglary of an unoccupied

structure. Beckles’s criminal history category was raised from V to VI, because he

was a career offender under § 4B1.1. Based on a total offense level of 37 and a

criminal history category of VI, the guidelines range was 360 months’ to life

6
imprisonment, including a mandatory minimum sentence of 15 years under 18

U.S.C. § 924(e)(1). The PSI also noted that Beckles was 24 years old; was

abandoned by his parents at the age of five; described his childhood as “crazy”;

began using drugs and having legal problems at a young age; and has a six-year-

old son with a brain tumor who is undergoing chemotherapy. It also stated that the

woman who raised Beckles said that he had a drug problem and could not read or

write.

Beckles objected to the PSI, arguing that (1) the Sentencing Guidelines

provided an excessive sentence; (2) police reports or other impermissible sources

were used to calculate his criminal history category improperly; (3) the

government did not prove the prior convictions required for the 18 U.S.C. § 924(e)

enhancement; (4) none of his prior state drug convictions qualified as serious drug

offenses under 18 U.S.C. § 924(e) and the government should have been required

to charge his prior felonies in the indictment and prove them beyond a reasonable

doubt; (5) the enhancement pursuant to § 4B1.1 was unconstitutional because it

relied on facts pertaining to Beckles’s prior convictions not alleged in the

indictment or proven to a jury beyond a reasonable doubt; and (6) applying the 18

U.S.C. § 924(e) enhancement was unconstitutional. Notably, Beckles did not

object to the PSI’s characterization of the firearm as a sawed-off shotgun or the

7
enhancement of his offense level due to the classification of his current conviction

as a felony crime of violence under §4B1.1.

The district court conducted a sentencing hearing on October 17, 2007,

during which the government put on a Miami-Dade Police Department fingerprint

analyst to confirm that Beckles’s fingerprints matched those on the certified

Florida state court convictions ascribed to him for purposes of finding that his

conduct fell within the career offender provision of the Sentencing Guidelines.

The court concluded that the government had established the defendant’s prior

convictions and that the defendant qualified as an armed career criminal. The trial

judge said the following:

The defendant is considered a career offender because he was at least 18
at the time of this offense. This offense is a felony crime of violence,
the unlawful possession of a sawed-off shotgun, and the defendant has
at least two prior felony convictions of a controlled substance offense.
The offense level, as noted in paragraph 18 of the presentence report,
goes from an adjusted offense level of 26 up to 37 under the Sentencing
Guideline § 4B1.1(b). So the defendant has started off today’s
sentencing hearing with an offense level of 37, a criminal history
category of 6 and the Guidelines recommend a sentence of, at the low
end, 360 months up to life.

The district court explained its sentence this way: “Beckles’s long and

continuous life of crime was never appropriately addressed at the State Court

level. In other words . . . the defendant has 18 arrests that resulted in convictions

8
and/or juvenile adjudications” and he is only 24 years old. (Id. at 40-41). It

concluded “[t]hat’s a pretty extensive criminal history. It’s pretty continuous . . . .

[W]hat stands out is that the defendant was never appropriately punished for any

of his prior felony convictions.” (Id. at 41). The district court added that it had

“given careful consideration to the statutory factors contained in 18 U.S. Code §

3553,” and that it was “mindful of the need to have this sentence reflect upon the

seriousness of the offense, provide deterrence and safeguard the community from

you, Mr. Beckles, because you have shown that you cannot live within the law.”

(Id. at 43). A sentence of 360 months of imprisonment, five months of supervised

release, and a $5,000 fine was imposed.

This timely appeal ensued.

II.

A. Motion to Suppress

First, Beckles argues that his conviction must be reversed because the

incriminating post-arrest statements he made to Special Agent Jefferson should

have been suppressed. In as much as a ruling on a motion to suppress is a mixed

question of law and fact, we review the district court’s findings of fact for clear

error and the application of the law to those facts de novo. United States v.

Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999). We construe all facts in favor of

9
the prevailing party (here the government). United States v. Bervaldi, 226 F.3d

1256, 1262 (11th Cir. 2000).

Under the Fifth Amendment, “[n]o person . . . shall be compelled in any

criminal case to be a witness against himself.” U.S. Const. amend. V. In Miranda,

the Supreme Court held that the government may not use statements stemming

from the custodial interrogation of a criminal defendant unless the government

demonstrates that it used procedural safeguards to ensure the privilege against

self-incrimination remains intact. 384 U.S. at 444. In particular, a defendant may

waive his right against self-incrimination only if he does so “voluntarily,

knowingly and intelligently.” Id. A defendant’s waiver of his Miranda rights is

voluntary, knowing and intelligent if “it was the product of a free and deliberate

choice rather than intimidation, coercion, or deception,” and it was “made with a

full awareness of both the nature of the right being abandoned and the

consequences of the decision to abandon it.” Moran v. Burbine, 475 U.S. 412, 421

(1986). A written waiver “is usually strong proof of the validity of that waiver,

but is not inevitably either necessary or sufficient to establish waiver.” North

Carolina v. Butler, 441 U.S. 369, 373 (1979).

When the facts are construed in a light most favorable to the government,

there can be little question that Beckles made a voluntary, knowing, and intelligent

10
waiver of his Miranda rights. Special Agent Jefferson testified that Beckles: (1)

was read his Miranda rights; (2) indicated in writing that he understood his

Miranda rights and was aware of the rights that he would give up if he chose to

speak; (3) indicated in writing that he was not under the influence of drugs or

alcohol; (4) did not appear to be under the influence of drugs or alcohol; (5)

indicated in writing that he could understand English; (6) appeared to understand

English and spoke with Jefferson in English; and (7) did not request an attorney or

indicate that he did not wish to speak with law enforcement officers.

While Beckles did provide contradictory testimony, the district court made a

detailed credibility determination in favor of the FBI agent’s version of the events,

and this decision was not clearly erroneous. See United States v. Delancy, 502

F.3d 1297, 1308 (11th Cir. 2007) (explaining that factual findings are not clearly

erroneous where the district court makes detailed credibility determinations that it

does not believe a witness’s claim at a hearing on a motion to suppress). In

particular, the magistrate judge, whose Report and Recommendation was adopted

in full by the district court after a de novo review, explained that he chose to credit

Special Agent Jefferson’s account, and not Beckles’s. In short, the district court

did not err in denying Beckles’s motion to suppress Beckles’s incriminating post-

arrest statements.

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B. Sufficiency of the Evidence

Beckles also claims that his conviction must be reversed because it was

supported by insufficient evidence. We remain unpersuaded.

We review de novo whether there is sufficient evidence in the record to

support a jury’s verdict in a criminal trial, viewing the evidence in the light most

favorable to the government, and drawing all reasonable factual inferences in

favor of the jury’s verdict. United States v. Williams, 144 F.3d 1397, 1401 (11th

Cir. 1998). Accordingly, the evidence will be sufficient to support a conviction if

“a reasonable trier of fact could find that the evidence established guilt beyond a

reasonable doubt.” United States v. Calhoon, 97 F.3d 518, 523 (11th Cir. 1996).

In rebutting the government’s evidence “[i]t is not enough for a defendant to put

forth a reasonable hypothesis of innocence, because the issue is not whether a jury

reasonably could have acquitted but whether it reasonably could have found guilt

beyond a reasonable doubt.” United States v. Thompson, 473 F.3d 1137, 1142

(11th Cir. 2006).

To establish a violation of 18 U.S.C. § 922(g)(1), the government must

prove three elements: “(1) that the defendant was a convicted felon, (2) that the

defendant was in knowing possession of a firearm, and (3) that the firearm was in

or affecting interstate commerce.” United States v. Deleveaux, 205 F.3d 1292,

12
1296-97 (11th Cir. 2000). Beckles contests only the second element -- that he did

not knowingly possess a firearm.

“The government need not prove actual possession in order to establish

knowing possession; it need only show constructive possession through direct or

circumstantial evidence.” United States v. Greer, 440 F.3d 1267, 1271 (11th Cir.

2006). “Constructive possession exists when the defendant exercises ownership,

dominion, or control over the item or has the power and intent to exercise

dominion or control.” Id. However, “a defendant’s mere presence in the area of

[an object] or awareness of its location is not sufficient to establish possession.”

United States v. Pedro, 999 F.2d 497, 500-01 (11th Cir. 1993) (quotation marks

omitted).

Here, the evidence, viewed in the light most favorable to the jury’s

determination, amply supports the verdict. Among other things, the government

established that: (1) Beckles was Jones’s boyfriend and lived at her apartment; (2)

Beckles helped pay the rent; (3) Beckles’s belongings were kept at the apartment,

including his clothing, his toothbrush, his watch, and his identification; (4) the

Browning shotgun was recovered in Jones’s apartment; (5) Beckles knew where

the shotgun was concealed and told Detective Castro its exact location; (6)

Beckles apologized to Jones for bringing the shotgun into the apartment; (7) the

13
shotgun did not belong to Jones or any of the other occupants or guests at the

apartment; and (8) Beckles said that he possessed the shotgun, and that he stole it

to protect himself while dealing drugs. Thus, there was ample evidence to support

the jury’s finding that Beckles knowingly possessed the firearm. Indeed, most

strikingly, Beckles admitted to Special Agent Jefferson that he had ownership and

control over the shotgun and this testimony went uncontradicted at trial.

C. Application of § 4B1.1 of the Sentencing Guidelines

Beckles also says that his sentence must be reversed because, contrary to the

finding of the district court, his conviction under 18 U.S.C. § 922(g) was not a

“crime of violence” under § 4B1.1 of the Sentencing Guidelines. In particular, he

claims that the district court erred by looking behind the face of his 18 U.S.C. §

922(g) conviction to make a finding that Beckles possessed a sawed-off shotgun

within the meaning of 26 U.S.C. § 5845(a) and by increasing the Sentencing

Guidelines calculation accordingly.

Due to multiple prior felonies, Beckles’s violation of 18 U.S.C. § 922(g)

subjected him to the enhanced penalty provision of 18 U.S.C. § 924(e)(1) and the

district court found him to be an armed career criminal pursuant to that statute.

This finding, in turn, qualified Beckles for a sentence enhancement under § 4B1.4.

That provision of the Sentencing Guidelines instructs that the appropriate offense

14
level is the greater of: (1) the applicable offense level from Chapters 2 and 3 of the

Sentencing Guidelines; (2) the offense level described in § 4B1.1, if applicable;

(3) level 34, if the firearm possessed was of a type described in 26 U.S.C. §

5845(a); or (4) level 33. U.S.S.G. § 4B1.4(b).

Section 4B1.1, in turn, applies if:

(1) the defendant was at least eighteen years old at the time the
defendant committed the instant offense of conviction; (2) the instant
offense of conviction is a felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant has at least two prior
felony convictions of either a crime of violence or a controlled substance
offense.

U.S.S.G. § 4B1.1(a). In particular, the Sentencing Guidelines specify that a

“‘[c]rime of violence’ does not include the offense of unlawful possession of a

firearm by a felon, unless the possession was of a firearm described in 26 U.S.C. §

5845(a),” and then reiterate that “[u]nlawfully possessing a firearm described in 26

U.S.C. § 5845(a) (e.g., a sawed-off shotgun or sawed-off rifle, silencer, bomb, or

machine gun) is a ‘crime of violence.’” U.S.S.G. § 4B1.2 Application Note 1.1

At sentencing, the district court found that § 4B1.1 was applicable and that

it yielded the greatest offense level, reasoning that two of Beckles’s prior felony

1
The commentary and application notes of the Sentencing Guidelines are authoritative,
unless they are plainly erroneous, inconsistent with the regulation they interpret, or contrary to
the Constitution or federal law. Stinson v. United States, 508 U.S. 36, 45 (1993); United States
v. Torrealba, 339 F.3d 1238, 1242 (11th Cir. 2003).

15
convictions were for qualified controlled substances offenses, and the current 18

U.S.C. § 922(g) conviction was for a “crime of violence” because the firearm

Beckles knowingly possessed was a sawed-off shotgun as defined in 26 U.S.C. §

5845(a).

On appeal, Beckles argues that § 4B1.1 does not apply to him because the

instant conviction under 18 U.S.C. § 922(g) is not for a “crime of violence.”

Specifically, he suggests that he was convicted of unlawful possession of a firearm

by a felon, not of unlawful possession of a 26 U.S.C. § 5845(a) firearm by a felon.

Despite making six objections to the PSI (including one to the application of

§ 4B1.1) and five amendments to his sentencing memorandum, Beckles never

objected to the PSI’s characterization of the firearm as a sawed-off shotgun or to

the PSI’s or district court’s enhancement of his offense level under §4B1.1

because his current conviction was for a felony crime of violence. Accordingly,

we review the district court’s decision for plain error. See e.g., United States v.

Raad, 406 F.3d 1322, 1323 (11th Cir. 2005). To demonstrate plain error, Beckles

has the burden of establishing that “(1) there is an error; (2) that is plain or

obvious; (3) affecting [his] substantial rights in that it was prejudicial and not

harmless; and (4) that seriously affects the fairness, integrity, or public reputation

of the judicial proceedings.” Id. (quotation marks and citation omitted). We may

16
exercise this review “sparingly and only in those circumstances in which a

miscarriage of justice would otherwise result.” United States v. Rodriguez, 398

F.3d 1291, 1298 (11th Cir. 2005) (quotation marks and citation omitted). There

can be little doubt this is a difficult and daunting hurdle for the appellant to cross,

and Beckles has not done so today.

Indeed, Beckles has not established that there is any error, let alone that any

such error is plain. To determine whether the instant offense is a “crime of

violence” for purposes of enhancing a sentence under § 4B1.1, a district court may

look outside of the “offense of conviction” to the conduct surrounding that

conviction“if ambiguities in the judgment make the crime of violence

determination impossible from the face of the judgment itself.” United States v.

Spell, 44 F.3d 936, 939-40 (11th Cir. 1995); United States v. Young, 527 F.3d

1274, 1277 (11th Cir. 2008) (same); United States v. Owens, 447 F.3d 1345, 1347

(11th Cir. 2006) (same). Accordingly, we have permitted district courts to find

additional facts when the crime for which the defendant was convicted

encompasses both conduct that constitutes a crime of violence and conduct that

does not constitute a crime of violence.2 See e.g., United States v. Aguilar-Ortiz,

2
Although all of the prior cases in our Circuit discussing when a judgment of conviction
is ambiguous for purposes of § 4B1.1 address prior convictions, as opposed to the instant
conviction, that difference gives us no pause. The law that applies to evaluating prior

17
450 F.3d 1271, 1276 (11th Cir. 2006) (finding prior state judgment of conviction

ambiguous because the Court was unable to say as a categorical matter that all

convictions under it qualified as a “drug trafficking offense” under §

2L1.2(b)(1)(B)); Spell, 44 F.3d at 939 (holding that a prior state judgment of

conviction for burglary was ambiguous because it encompassed some conduct

which constituted a crime of violence and some which did not); see also Greer,

440 F.3d at 1273 (noting that the defendant’s prior convictions for making

terrorist threats under a Georgia statute did “not, without more, prove that he has

been convicted of a violent felony for ACCA purposes” because the state statute

prohibits both violent and non-violent conduct); see also United States v. Dwyer,

245 F.3d 1168, 1171 (10th Cir. 2001) (“If the statute is ambiguous, or broad

enough to encompass both violent and nonviolent crimes, a court can look beyond

the statute to certain records of the prior proceeding.”) (quotation marks omitted).

Here, an ambiguity does exist. Plainly, a violation of 18 U.S.C. § 922(g)(1)

encompasses both conduct that the Sentencing Guidelines explicitly says is not a

crime of violence and conduct that the Sentencing Guidelines explicitly

denominates as a crime of violence. All that is required to violate 18 U.S.C. §

convictions surely applies with equal force to the evaluation of the instant conviction, particularly
because the Sentencing Guidelines contain the same definition of “crime of violence” for both
prongs of § 4B1.1(a).

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922(g) is that a convicted felon knowingly possess any firearm. Thus, this

conviction encompasses conduct involving the possession of a standard firearm as

well as the possession of a firearm that specifically meets the criteria of 26 U.S.C.

§ 5845(a). The distinction between these two categories is important, because

Congress and the Sentencing Commission have chosen to subject only those who

possess 26 U.S.C. § 5845(a) firearms -- which include, among other things, sawed-

off shotguns that are less than 26 inches overall in length or have barrels that are

less than 18 inches in length -- to longer sentences, since those firearms “are

inherently dangerous and when possessed unlawfully serve only violent

purposes.” U.S.S.G. Appx. C. Amend. 674 (2004).

Where an ambiguity exists and the underlying conviction may be examined,

the district court can rely on the “charging document, written plea agreement,

transcript of plea colloquy, and any explicit factual finding by the trial judge to

which the defendant assented.” Aguilar-Ortiz, 450 F.3d at 1276 (quoting Shepard

v. United States, 544 U.S. 13, 16 (2005)). For purposes of sentencing, the district

court also may base its factual findings on undisputed statements found in the PSI,

because they are factual findings to which the defendant has assented. See United

States v. Bennett, 472 F.3d 825, 832-34 (11th Cir. 2006).

Facts contained in a PSI are undisputed and deemed to have been admitted

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unless a party objects to them before the sentencing court “with specificity and

clarity.” Id. at 832 (concluding that an objection to the probation officer’s use of

non-Shepard materials in preparation of the PSI did not amount to a dispute of the

facts). “It is the law of this circuit that a failure to object to allegations of fact in a

PSI admits those facts for sentencing purposes” and “precludes the argument that

there was error in them.” United States v. Wade, 458 F.3d 1273, 1277 (11th Cir.

2006); Bennett, 472 F.3d at 832 (“A sentencing court’s findings of fact may be

based on undisputed statements in the PSI. Where a defendant objects to the

factual basis of his sentence, the government has the burden of establishing the

disputed fact. . . . Otherwise, the objection is waived.”). Indeed, the defendant’s

failure to object to conclusory statements in the PSI renders those statements

undisputed and permits the sentencing court to rely upon them without error even

if there is an absence of supporting evidence. United States v. Hedges, 175 F.3d

1312, 1315 (11th Cir. 1999).

Beckles’s PSI repeatedly stated that the firearm he was convicted of

knowingly possessing was a sawed-off shotgun. First, the PSI specified that

“Detective Castro then recovered a sawed off Browning shotgun” (PSI ¶ 6), and

observed, in making its base offense level calculation, that the offense involved “a

semi-automatic firearm that is capable of accepting a large capacity magazine; or .

20
. . [a] firearm that is described in 26 U.S.C. § 5845(a).” (PSI ¶ 12). In explaining

the applicable Chapter Four enhancements, the PSI also stated that “[t]he

defendant is considered a career offender because he was at least 18 years old at

the time of the instant offense, the instant offense is a felony crime of violence

(unlawful possession of a sawed-off shotgun) . . . .” (PSI ¶ 18). The district court

relied upon these undisputed facts found in the PSI and sentenced Beckles

accordingly as a career offender under § 4B1.1. We can discern no error in the

district court’s reliance on these facts in the PSI to sentence Beckles for

possession of a sawed-off shotgun.3

But, even if Beckles had demonstrated error and that error was plain or

obvious, his argument still could not succeed because he is unable to show that his

substantial rights were affected by the error. The third prong of the plain error test

“almost always requires that the error must have affected the outcome of the

district court proceedings.” Rodriguez, 398 F.3d at 1299 (quotation marks and

citations omitted). “The standard for showing that is the familiar reasonable

probability of a different result formulation, which means a probability sufficient

to undermine confidence in the outcome.” Id. (quotation marks and citations

3
We note in passing that Beckles has not objected to the district court’s finding that at
least two of his prior state convictions were for controlled substance offenses that meet the
requirements of §4B1.1.

21
omitted). Thus, “[i]t is the defendant rather than the Government who bears the

burden of persuasion with respect to prejudice.” United States v. Olano, 507 U.S.

725, 734 (1993). In that vein,

if it is equally plausible that the error worked in favor of the defense, the
defendant loses; if the effect of the error is uncertain so that we do not
know which, if either, side it helped the defendant loses. Where errors
could have cut either way and uncertainty exists, the burden is the
decisive factor in the third prong of the plain error test, and the burden
is on the defendant.

Rodriguez, 398 F.3d at 1300.

Simply put, on the record before us, the effect of the alleged error is

uncertain; therefore, Beckles would lose even if he could show obvious error. No

evidence has been adduced regarding the length and size of the shotgun possessed

by Beckles, and Beckles has submitted nothing showing that the firearm was not,

in fact, a sawed-off shotgun under 26 U.S.C. § 5845(a). Indeed, his attorney said

at oral argument that she was unaware of the actual length of the firearm, and that

it had been destroyed by the United States Marshals Service pursuant to an

unopposed forfeiture order issued on December 21, 2007. Because we do not

know whether the firearm Beckles possessed would have qualified Beckles as a

career offender, we could do nothing other than speculate. Where such

speculation is required to resolve the dispute, the appellant has not met and

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cannot meet “his burden of showing a reasonable probability that the result would

have been different but for the error; he has not met his burden of showing

prejudice; he has not met his burden of showing that his substantial rights have

been affected.” Rodriguez, 398 F.3d at 1301.

D. Reasonableness

Beckles also claims that his sentence should be reversed because it is an

unreasonable one. Reviewing a sentence for reasonableness “merely asks

whether the trial court abused its discretion.” United States v. Pugh, 515 F.3d

1179, 1189 (11th Cir. 2008) (quoting Rita v. United States, 127 S. Ct. 2456, 2465

(2007)). Our reasonableness review consists of two steps. Id. at 1190. First, we

must

ensure that the district court committed no significant procedural error,
such as failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider the §
3553(a) factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence -- including an
explanation for any deviation from the Guidelines range.

Id. (quoting Gall v. United States, 128 S. Ct. 586, 597 (2007).4 If the district court

4
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense; (3) the need for the sentence imposed to afford adequate deterrence;
(4) the need to protect the public; (5) the need to provide the defendant with educational or
vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing
Guidelines range; (8) the pertinent policy statements of the Sentencing Commission; (9) the need
to avoid unwanted sentencing disparities; and (10) the need to provide restitution to victims. 18

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did not procedurally err, then we must consider the “substantive reasonableness of

the sentence imposed under an abuse-of-discretion standard,” based on the

“totality of the circumstances.” Id. (quoting Gall, 128 S. Ct. at 597). “The party

who challenges the sentence bears the burden of establishing that the sentence is

unreasonable in the light of both th[e] record and the factors in section 3553(a).”

United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006) (quotation marks

omitted).

Beckles says his sentence is unreasonable because the district court failed to

adequately consider the § 3553(a) factors and mitigating factors such as his

troubled childhood, drug addiction, and ill child. But, at sentencing, the district

court explicitly stated that it had “given careful consideration to” the factors found

in 18 U.S.C. § 3553(a), that Beckles had committed a serious offense, and that

there was a need to provide deterrence and safeguard the community from him.

The record thus reflects the district court’s adequate consideration of the § 3553(a)

factors. In fact, “the district court need only acknowledge that it considered the §

3553(a) factors, and need not discuss each of these factors in either the sentencing

hearing or in the sentencing order.” United States v. Amedeo, 487 F.3d 823, 833

(11th Cir. 2007) (quotation marks and punctuation omitted); United States v.

U.S.C. § 3553(a).

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Talley, 431 F.3d 784, 786 (11th Cir. 2005) (stating that “an acknowledgment by

the district court that it has considered the defendant’s arguments and the factors

in section 3553(a) is sufficient under Booker”). Accordingly, Beckles’s sentence

cannot be reversed on this ground.

E. Imposition of 18 U.S.C. § 924(e) sentence

Finally, Beckles argues that the district court violated the Fifth and Sixth

Amendments to the United States Constitution when it applied 18 U.S.C. § 924(e),

because the application of that provision -- which instructs that district courts must

impose a mandatory minimum sentence of 15 years upon anyone convicted of

violating 18 U.S.C. § 922(g) who also has three previous violent felony or serious

drug offense convictions committed on different occasions -- was based upon facts

about Beckles’s prior convictions that were not found by the jury or charged in the

indictment.

The Supreme Court has rejected Beckles’s argument. In Almendarez-Torres

v. United States, 523 U.S. 224, 247 (1998), the Court held that the government

need not prove beyond a reasonable doubt that a defendant had prior convictions

or allege those prior convictions in the indictment in order to use those convictions

to enhance a defendant’s sentence. This Court has confirmed repeatedly that

Almendarez-Torres is good law and that “a district court does not err by relying on

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prior convictions to enhance a defendant’s sentence.” United States v. Shelton,

400 F.3d 1325, 1329 (11th Cir. 2005); see United States v. Dowd, 451 F.3d 1244,

1253 (11th Cir. 2006) (explaining that “we are bound by Almendarez-Torres until

it is explicitly overruled by the Supreme Court”); Greer, 440 F.3d at 1273-76

(expressly rejecting the argument that a judge is forbidden by Booker

and Apprendi from determining the factual nature of the prior conviction in

vacating the district court’s refusal to impose the 18 U.S.C. § 924(e) mandatory

minimum sentence because the jury did not determine whether the defendant’s

three prior convictions were for violent felonies).

Accordingly, we AFFIRM the conviction and sentence in all respects.

AFFIRMED.

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