                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                 FILED
                                                        U.S. COURT OF APPEALS
                              No. 08-17224                ELEVENTH CIRCUIT
                                                            OCTOBER 19, 2009
                          Non-Argument Calendar
                                                           THOMAS K. KAHN
                        ________________________
                                                                CLERK

                    D. C. Docket No. 08-20108-CR-DMM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

JOHNSON THELISMA,
a.k.a. Haitian Boy,

                                                          Defendant-Appellant.


                        ________________________

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

                              (October 19, 2009)

Before DUBINA, Chief Judge, BIRCH and FAY, Circuit Judges.

PER CURIAM:

     Appellant Johnson Thelisma appeals his conviction and sentence for
conspiracy to possess with intent to distribute crack cocaine, in violation of 21

U.S.C. §§ 846 and 841(b)(1)(A)(iii). On appeal, Thelisma argues that the district

court abused its discretion by (1) denying his motion to exclude evidence seized in

a search of his alleged co-conspirator’s home, (2) admitting evidence of his prior

drug convictions, and (3) refusing to admit as evidence a document from another

alleged co-conspirator’s sentencing proceedings. He also argues that his sentence

was unconstitutional.

                                          I.

      Thelisma first argues that the district court abused its discretion by denying

his motion to exclude evidence that police officers seized in a search of his alleged

co-conspirator’s home. He contends that the evidence should have been excluded

because he withdrew from the conspiracy several months prior to the search.

      “We review a district court’s evidentiary rulings for clear abuse of

discretion.” United States v. Perez-Oliveros, 479 F.3d 779, 783 (11th Cir. 2007).

“An evidentiary ruling will stand unless the complaining party has shown a

substantial prejudicial effect.” United States v. Breitweiser, 357 F.3d 1249, 1254

(11th Cir. 2004) (internal quotation marks omitted). Federal Rule of Evidence 402

provides that “[a]ll relevant evidence is admissible, except as otherwise provided”

by law. Fed.R.Evid. 402. However, relevant evidence “may be excluded if its



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probative value is substantially outweighed by the danger of unfair prejudice[.]”

Fed.R.Evid. 403.

      Generally, a conspirator is responsible for all the reasonably foreseeable acts

of his co-conspirators that are done in furtherance of the conspiracy. United States

v. Peeples, 23 F.3d 370, 373 (11th Cir. 1994). Withdrawal from the conspiracy is

an affirmative defense. United States v. Gonzalez, 940 F.2d 1413, 1427 (11th Cir.

1991). To establish the affirmative defense of withdrawal from the conspiracy, the

defendant has the substantial burden of proving that (1) he took affirmative steps,

“inconsistent with the objectives of the conspiracy, to disavow or to defeat the

objectives of the conspiracy; and (2) that he made a reasonable effort to

communicate those acts to his co-conspirators or that he disclosed the scheme to

law enforcement authorities.” United States v. Starrett, 55 F.3d 1525, 1550 (11th

Cir. 1995). The defense is not available if the defendant merely ceased to

participate in the conspiracy. United States v. Hogan, 986 F.2d 1364, 1375 (11th

Cir. 1993). Although Thelisma would not have been responsible for his co-

conspirators’ actions after his withdrawal, he did not present any evidence that he

took affirmative steps to disavow or defeat the conspiracy. At most, the evidence

showed that he no longer participated in the conspiracy after a certain point, but

lack of participation is not sufficient to establish withdrawal. Thus, we conclude



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that the evidence was relevant, and the district court did not abuse its discretion by

allowing the government to present it.

                                          II.

      Next, Thelisma argues that the district court abused its discretion by

allowing the government to introduce evidence of his prior cocaine and marijuana

convictions to prove his intent to commit the present drug offense. He urges that

his intent was not at issue because he denied any involvement with the conspiracy.

He further submits that the government introduced the prior convictions only to

show his bad character.

      We review a district court’s admission of evidence of a defendant’s prior

bad acts under Fed.R.Evid. 404(b) for abuse of discretion. United States v.

Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003). Federal Rule of Evidence 404(b)

provides: “[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 . . . .” Fed.R.Evid. 404(b). We employ the following three-part test in

determining whether evidence of extrinsic bad acts is admissible under

Rule 404(b):



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      First, the evidence must be relevant to an issue other than the
      defendant’s character. Second, as part of the relevance analysis, there
      must be sufficient proof so that a jury could find that the defendant
      committed the extrinsic act. Third, the evidence must possess
      probative value that is not substantially outweighed by its undue
      prejudice, and the evidence must meet the other requirements of
      [Fed.R.Evid.] 403.

Jernigan, 341 F.3d at 1280.

      In order to support a conspiracy conviction under 21 U.S.C. § 846, the

government must establish that (1) a conspiracy existed, (2) the defendant had

knowledge of it, and (3) he voluntarily became a part of it. United States v.

Thompson, 422 F.3d 1285, 1290 (11th Cir. 2005). When a defendant pleads not

guilty, intent becomes a material issue. United States v. Hernandez, 896 F.2d 513,

522 (11th Cir. 1990). Evidence of a crime similar to the one charged is relevant to

proving intent. United States v. Montes-Cardenas, 746 F.2d 771, 780 (11th Cir.

1984). Moreover, evidence of prior drug dealing is highly probative of intent in

later conspiracy and distribution charges. United States v. Diaz-Lizaraza, 981 F.2d

1216, 1224 (11th Cir. 1993). In assessing the third prong, “a court should consider

the differences between the charged and extrinsic offenses, their temporal

remoteness, and the government’s need for the evidence to prove intent.” Id.

at 1225. Furthermore, a district court may limit the prejudicial value of evidence

by giving a limiting instruction to the jury. Hernandez, 896 F.2d at 523.



                                          5
      First, we conclude that by pleading not guilty, Thelisma put his intent at

issue. Second, Thelisma has not argued that the evidence was insufficient to prove

that he committed the prior acts. Finally, the prior convictions were probative of

his intent because they involved prior drug dealing. Moreover, the district court

limited any prejudice caused by the introduction of the convictions by instructing

the jury as to the limited purpose of the evidence. Accordingly, we conclude that

the district court did not abuse its discretion by allowing the prior conviction

evidence.

                                          III.

      Thelisma also argues that the district court abused its discretion by refusing

to allow him to introduce a response made by the government in his alleged

co-conspirator’s sentencing proceedings. He contends that the response was

admissible as a party-opponent admission. Alternatively, he urges that it was

relevant to impeach the testimony of the co-conspirator, who testified at

Thelisma’s trial.

      As noted above, we “review a district court’s evidentiary rulings for clear

abuse of discretion.” Perez-Oliveros, 479 F.3d at 783. Relevant evidence may be

excluded at trial if the probative value of the evidence is substantially outweighed

by, as relevant here, confusion of the issues or considerations of undue delay or



                                           6
waste of time. Fed.R.Evid. 403.

      Hearsay is “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Fed.R.Evid. 801(c). Hearsay generally is not admissible.

Fed.R.Evid. 802. However, admissions by a party opponent generally are not

considered hearsay, even if they otherwise meet the definition.

Fed.R.Evid. 801(d). Prior inconsistent statements of a witness are admissible to

impeach that witness. United States v. Sisto, 534 F.2d 616, 622 (5th Cir. 1976).

      Addressing whether a defendant could introduce statements made by a

prosecutor in his codefendant’s earlier trial, we held that the statements were not

admissible because (1) the earlier comments were not statements of fact, and

(2) the earlier comments were not clearly inconsistent with the government’s

position in the second trial. United States v. DeLoach, 34 F.3d 1001, 1005-06

(11th Cir. 1994).

      We conclude from the record that the government’s response in the other

case was not inconsistent with its position in Thelisma’s trial that he also

participated in the conspiracy. Moreover, the response was not relevant to impeach

the co-conspirator’s testimony because the co-conspirator did not make the

statement that Thelisma sought to introduce. Accordingly, we conclude that the



                                            7
district court did not abuse its discretion by denying Thelisma’s motion to admit

the response as evidence in his trial.

                                          IV.

      Finally, Thelisma argues that his mandatory life sentence was

unconstitutional because (1) it amounted to cruel and unusual punishment, (2) the

enhancement based on prior convictions not proven to the jury violated the Fifth

and Sixth Amendments, and (3) the statutory sentence violated the

separation-of-powers doctrine by removing discretion from the sentencing court.

      We review questions of constitutional law de novo. United States v. Brown,

364 F.3d 1266, 1268 (11th Cir. 2004). Mandatory life sentencing for repeat drug

offenses does not constitute cruel and unusual punishment or violate due process.

United States v. Willis, 956 F.2d 248, 250-51 (11th Cir. 1992). Mandatory

minimum sentencing also does not violate the separation-of-powers doctrine.

United States v. Holmes, 838 F.2d 1175, 1178 (11th Cir. 1988).

      The Supreme Court has held that the government is not required to allege in

the indictment or prove beyond a reasonable doubt that a defendant had prior

convictions in order for the district court to use the convictions to enhance the

defendant’s sentence. Almendarez-Torres v. United States, 523 U.S. 224, 228-35,

118 S. Ct. 1219, 1223-26, 140 L. Ed. 2d 350 (1998). The Court subsequently held



                                           8
that the Constitution requires 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.”

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed.

2d 435 (2000) (emphasis added). After Apprendi, we have held that Almendarez-

Torres remains good law and must be followed until the Supreme Court determines

otherwise. United States v. Guadamuz-Solis, 232 F.3d 1363, 1363 (11th Cir.

2000).

         Because all of Thelisma’s arguments were precluded by precedent, we

conclude that the district court did not err in imposing a mandatory life sentence.

         For the above-stated reasons, we affirm Thelisma’s conviction and sentence.

         AFFIRMED.




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