                                                      [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              _____________                  MAR 14, 2007
                                                           THOMAS K. KAHN
                               No. 04-15638                    CLERK
                              _____________

                    D.C. Docket No. 01-00892 CR-CMA


UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,
                                   versus
LONNIE PORTER,
a.k.a. Luqman Eliman,
a.k.a. Lugman Eliman,
a.k.a. Ludman Eliman,
ANTHONY FLOWERS,

                                                      Defendants-Appellants.

                               ____________

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

                             (March 14, 2007)

Before TJOFLAT, CARNES and HILL, Circuit Judges.

PER CURIAM:
      Anthony Flowers and Lonnie Porter and eight others were charged in 2002

with several counts of conspiracy to possess with intent to distribute cocaine and

cocaine base, beginning in 1991 and continuing until the summer of 2000. In

addition, Porter was charged with money laundering. After a jury trial, Flowers

was found guilty of one count of the conspiracy and Porter was found guilty of

two drug counts and one money laundering count. The court sentenced Flowers to

a statutorily-mandated term of life-imprisonment. Porter received a sentence of

188 months for each count of conviction, to be served concurrently. Flowers and

Porter filed timely appeals, which were consolidated for the purposes of oral

argument. We shall consider each appeal separately in this opinion.

                                         I.

      Lonnie Porter alleges both trial and sentencing error. With respect to his

claim of sentencing error, the government concedes that the district court

committed Booker constitutional error when it engaged in judicial fact-finding in

order to determine the amount of cocaine and cocaine base for which Porter was

accountable. This error was not harmless beyond a reasonable doubt because the

district court stated that if the Sentencing Guidelines were not mandatory, it would

have imposed a 151 month sentence instead of the mandatory Guidelines sentence

of 188 months per count. Accordingly, we shall remand for re-sentencing on this

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issue.

         As to Porter’s other allegation of sentencing error, we find no cause to

vacate his sentence. Porter claims that he should have received a two-level

reduction under the safety-valve provision of § 2D1.1(b)(6) of the 2000

Sentencing Guidelines. To be entitled to a reduction in sentence under this

section, however, Porter must have “truthfully provided the government

information about the relevant offense or offenses no later than at the time of the

sentencing hearing.” Based upon the record, it appears that Porter never satisfied

this requirement. Porter admitted at sentencing that he did not provide such a

statement by the time of his sentencing hearing. Therefore, the district court did

not clearly err by denying a two-level reduction under the safety-valve provision

of § 2D1.1(b)(6).

         As to Porter’s allegations of trial error, we find no grounds for reversal or

vacation of his sentence. With respect to his claim that the evidence of guilt was

insufficient to convict him because it was limited to showing his “mere presence”

during the various drug deals, we note that, while not dispositive, presence is a

material and probative fact that the jury may consider in reaching its decision.

United States v. Bain, 736 F.2d 1480, 1485 (11th Cir. 1984). Furthermore, the

government’s evidence permitted the jury to infer much more than that Porter was

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merely present during the conspiracy. At least five witnesses testified that Porter

was the organization’s Ohio connection and that he sold drugs for the conspiracy

there. A law enforcement officer testified that he observed Porter participate in a

drug deal and run away when police arrived. There was ample evidence,

therefore, from which a reasonable-minded jury could find that Porter participated

in the conspiracy. United States v. Montes-Cardenas, 746 F.2d 771, 778 (11th Cir.

1984).

      With respect to the money laundering charge, Porter contends that the

government failed to prove that he was depositing funds into the conspiracy’s

liquor store commercial account in order to conceal the source of these funds, as

required by § 1956(a)(1)(B)(I). Porter contends that, at the most, the

government’s proof showed that his deposits of drug deal proceeds “promoted”

the conspiracy’s objectives in violation of 18 U.S.C. § 1957(a), an activity for

which he was not charged. We disagree.

      The evidence showed that the liquor store was a “front” business,

established by the conspiracy to facilitate its drug dealing and to launder the

proceeds. The store owned a Western Union account that was used extensively to

transfer funds between co-conspirators. The evidence showed that Porter made

the charged deposits two days after a particular drug transaction. The deposits

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were made in amounts that evaded federal reporting requirements. All of these

facts were probative evidence from which the jury was permitted to infer that

Porter intended to and did conceal the proceeds of illegal drug activity. See

United States v. Magluta, 418 F.3d1166, 1176 (11th Cir. 2005).

      Finally, we find no abuse of discretion in the district court’s denial of

Porter’s motion to sever his trial from Flowers’ and for a mistrial. Porter

complains that testimony at trial that Flowers was the victim of a gunshot wound

during a robbery and had “gang” connections was unfairly prejudicial to him.

Although the district court gave a cautionary instruction to the jury that this

evidence “pertain[ed] only to the defendant, Anthony Flowers,” Porter argues that

the jury may have been prejudiced against him because of Flowers’ unsavory

character and conduct.

      The burden to demonstrate prejudice to a defendant from testimony at trial

regarding his co-defendant is a heavy one, requiring a demonstration that such

prejudice is “compelling.” United States v. Khoury, 901 F.2d 948, 965 (11th Cir.

1990). Compelling prejudice is demonstrated by a showing that the jury was

unable to make an individualized determination as to each defendant and to render

a fair and impartial verdict as to each. United States v. Hogan, 986 F.2d 1464,

1475 (11th Cir. 1993). We do not agree that the testimony of which Porter

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complains meets this standard.

      Porter has not demonstrated any compelling prejudice. The jury convicted

the defendants of different counts, clearly considering the evidence against them

separately. Nor does a defendant suffer compelling prejudice simply because the

prosecution introduces damaging evidence concerning a codefendant’s reputation

or criminal record. United States v. Walker, 720 F.2d 1527, 1533 (11th Cir. 1993).

      Accordingly, as to Porter, we shall affirm his conviction, but vacate his

sentence for the limited purpose of allowing the district judge to re-sentence him

under the non-binding guidelines.

                                          II.

      Anthony Flowers received a life sentence pursuant to 21 U.S.C. § 841(b) as

a result of prior felony drug convictions. He claims that his sentence is due to be

vacated because the government did not allege and prove beyond a reasonable

doubt that he had prior convictions, and the judge-found fact of these convictions

caused him prejudicial error by resulting in a statutorily-required life sentence.

We have previously noted that, in Almendarez-Torres v. United States, 523 U.S.

224 (1998), the Supreme Court “held that the government need not allege in its

indictment and need not prove beyond a reasonable doubt that a defendant had

prior convictions for a district court to use those convictions for purposes of

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enhancing a sentence.” United States v. Marseille, 377 F.3d 1249, 1257 (11th Cir.

2004). Furthermore, we have repeatedly held that, despite Booker-like attacks

upon it, Almendarez-Torres remains good law until and unless it is specifically

overruled by the Supreme Court. United States v. Greer, 440 F.3d 1267, 1274

(11th Cir. 2006). Accordingly, the district court did not er in enhancing Flowers’

sentence after making its own factual determinations regarding his prior

convictions and we shall affirm his conviction.

      Flowers alleges numerous errors in the conduct of his trial. Two merit

discussion.

      Flowers claims that the district court erred in not suppressing the drug

evidence found as the result of a search of his car. He complains that the officer

did not have probable cause to search his car because the dog sniff that prompted

it came too late.

      The officer had probable cause to stop Flowers’ vehicle because he was

speeding. Approximately four or five minutes after the initial stop, and while the

first officer was writing the traffic ticket, a backup officer and canine arrived. The

canine sniff, coming only nine minutes into the stop, revealed the presence of

drugs in the car, giving the officers probable cause to search the car. United States

v. Banks, 3 F.3d 399, 401 (11th Cir. 1993). The duration of this traffic stop was not

                                          7
in itself unreasonable. The dog arrived in a timely fashion and the officer was still

writing the ticket when the sniff identified the presence of drugs in the car. This

traffic stop and subsequent dog sniff did not violate Flowers’ rights under the

Fourth Amendment. See United States v. Perkins, 348 F.3d 965, 970 (11th Cir.

2003); United States v. Hardy, 855 F.2d 753, 761 (11th Cir. 1988).

      Flowers’ only other allegation of error requiring any discussion is his claim

that the district court abused its discretion by permitting the admission of the

identification testimony from two of his coconspirators. He argues that the

testimony should have been excluded because the in-court identifications were

tainted by the witnesses’s having seen him in a holding cell in the week prior to

their testimony.

      Where suggestive pre-trial confrontations have created the possibility of

misidentification at trial, the test is whether, under the totality of the

circumstances, the in-court identification was reliable. Neil v. Biggers, 409 U.S.

188, 199-200 (1972). In assessing the reliability of the in-court identification, we

consider the following factors: “(1) the opportunity of the witness to view the

criminal at the time of the crime; (2) the witness’ degree of attention; (3) the

accuracy of the witness’ prior description; (4) the level of certainty demonstrated

by the witness at the confrontation; and (5) the length of time between the crime

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and the confrontation.” Id.

      In this case, both witnesses had ample opportunity to observe Flowers at the

time of the crime, and reason to remember him. Both witnesses had participated in

drug deals with Flowers and one stayed in the same house as Flowers at the time

of the deal. Although their dealings with Flowers were some time prior to their

identification of him, Flowers’ counsel cross-examined extensively on this issue as

well as the general reliability of their identifications. He specifically questioned

them about their pre-trial confrontation of Flowers’ in the holding cell. Under the

totality of the circumstances, including Flowers’ cross-examination, the district

court did not abuse its discretion by permitting this testimony.

      Finding no merit in any of Flowers’ other allegations of error, we shall

affirm his conviction.

      Accordingly, the convictions of Lonnie Porter and Anthony Flowers are due

to be affirmed. Porter’s sentence must be vacated and he is remanded for re-

sentencing under the advisory guidelines. Flowers’ sentence is due to be affirmed.

      CONVICTIONS AFFIRMED. PORTER’S SENTENCE AFFIRMED IN

PART, VACATED IN PART and REMANDED. FLOWERS’ SENTENCE

AFFIRMED.




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