                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                                May 11, 2007
                              No. 06-13341                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                 D. C. Docket No. 05-00177-CR-2-LSC-VPM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

MARVIN DARBY,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Alabama
                       _________________________

                               (May 11, 2007)

Before ANDERSON, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

     Appellant Marvin Darby appeals his conviction and 250-month sentence for
being a felon-in-possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and

924(e). The district court sentenced Darby as an armed career criminal, pursuant

to 18 U.S.C. § 924(e), because it found that Darby’s prior state convictions for

arson, burglary, and escape were “violent felonies” for purposes of the Armed

Career Criminal Act (“ACCA”). Darby argues on appeal that the district court

erred when it found that his escape conviction was a violent felony because it did

not involve conduct that presented a serious potential risk of physical injury to

another. Darby also argues that the district court erred by enhancing his sentence,

pursuant to U.S.S.G. § 2K2.1(b)(4), because the fact that the rifle used in the

offense was stolen was neither admitted by him nor found by a jury, as is required

by United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621

(2005). Darby’s third argument on appeal is that the district court erred in denying

his motion for judgment of acquittal because the only evidence linking him to the

crime was the testimony of two witnesses who gave conflicting and inconsistent

testimony.

      Darby first argues that his escape conviction is not a violent felony and,

therefore, the district court erred when it sentenced him as an armed career

criminal. We review de novo whether a particular conviction is a “violent felony”

for purposes of the ACCA. United States v. Matthews, 466 F.3d 1271, 1273 (11th



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Cir. 2006).

      The armed career criminal provision applies to defendants subject to an

enhanced sentence under 18 U.S.C. § 924(e) for having at least three prior

convictions for “violent felonies,” “serious drug offenses,” or both. U.S.S.G.

§ 4B1.4(a). The term “violent felony” is defined in § 924(e)(2)(B) as “any crime

punishable by imprisonment for a term exceeding one year . . . that– (i) has as an

element the use, attempted use, or threatened use of physical force against the

person of another; or (ii) is burglary [or] arson . . . .” 18 U.S.C. § 924(e)(2)(B)(i),

(ii). In Taylor v. United States, the Supreme Court held that, for purposes of a

§ 924(e) sentence enhancement, the court need look only to the statutory definition

of the offense or the charging paper to determine whether an offense was a “violent

felony” within the meaning of the statute. 495 U.S. 575, 602, 110 S. Ct. 2143,

2160, 109 L. Ed. 2d 607 (1990).

      Moreover, like § 924(e)(2)(B)(i), the career offender provision of the

guidelines defines a “crime of violence,” in pertinent part, to include “any offense

under federal or state law, punishable by imprisonment for a term exceeding one

year, that . . . has an element the use, attempted use, or threatened use of physical

force against the person of another.” U.S.S.G. § 4B1.2(a). We determined in

United States v. Gay, 251 F.3d 950 (11th Cir. 2001), that a prior escape conviction



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was a “crime of violence” for purposes of the career offender provision because it

did not contain ambiguities, but presented a potential risk of violence, even when it

involved a “walk-away” from unsecured correctional facilities. 251 F.3d at 955.

      As an initial matter, although Darby asserts that “none of [his] offenses”

qualify as “violent offenses,” Darby only argues in his brief that his escape

conviction does not qualify as a “violent felony” for purposes of the ACCA and,

therefore, has abandoned any arguments with regard to the classification of his

burglary and arson convictions. See Greenbriar, Ltd. v. City of Alabaster, 881

F.2d 1570, 1573 n.6 (11th Cir. 1989) (deeming an issue waived where a party fails

to include substantive argument); see also 18 U.S.C. § 924(e)(2)(B)(ii) (specifying

that burglary and arson are violent felonies for purposes of the provision).

      As to Darby’s escape conviction, Darby was convicted of escape in the third

degree in violation of ALA. CODE § 13A-10-33 (1975), which provides that “[a]

person commits the offense of escape in the third degree if he escapes or attempts

to escape from custody.” ALA. CODE § 13A-10-33(a) (1975). As mentioned

earlier, we have held that an escape conviction amounts to a “crime of violence”

for purposes of the career offender guidelines. There is no meaningful distinction

between the language of the career offender provision and the language of

§ 924(e)(2)(B). Although the commentary to § 4B1.4 notes that the definition of



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“violent felony” used in the armed career criminal provision is not identical to the

definition of “crime of violence” used in the career offender provision, the

pertinent portions of the definitions are the same. Therefore, under the reasoning

of Gay and the language of § 924(e), Darby’s escape conviction amounted to a

“violent felony.” Accordingly, Darby was an armed career criminal because he

had three prior “violent felonies” within the meaning of the ACCA.

      In his second argument on appeal, Darby asserts that the district court erred

in relying on the fact that the rifle used in the offense was stolen when that fact was

neither admitted by him nor found by a jury. We review a preserved Booker claim

on appeal de novo and reverse only for harmful error. United States v. Paz, 405

F.3d 946, 948 (11th Cir. 2005). In Booker, the Supreme Court (1) held that,

pursuant to the mandatory Sentencing Guidelines, the Sixth Amendment was

violated when a sentence was enhanced based solely on judicial fact-finding; and

(2) rendered the Sentencing Guidelines advisory only. Booker, 543 U.S. at 233-35,

259-60, 125 S. Ct. at 749-51, 764. Thereafter, we have recognized two types of

Booker errors: (1) a Sixth Amendment constitutional error of enhancing a

defendant's sentence using judge-found facts under a mandatory guideline system;

and (2) a statutory error of applying the now advisory guidelines as mandatory.

United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).



                                           5
      The use of extra-verdict enhancements in an advisory guidelines scheme,

however, is not unconstitutional. United States v. Rodriguez, 398 F.3d 1291, 1300

(11th Cir. 2005). A district court may determine enhancements based on a

preponderance of the evidence standard as long as the guidelines are applied in an

advisory fashion. United States v. Chau, 426 F.3d 1318, 1323-24 (11th Cir. 2005).

      Here, the record demonstrates that the district court sentenced Darby under

an advisory scheme and, therefore, did not commit a Booker error by enhancing his

sentence pursuant to § 2K2.1(b)(4). Moreover, the enhancement had no effect on

the guideline application because, as discussed above, Darby’s offense level was

properly adjusted to 33, pursuant to § 4B1.4(b)(3)(B), because he was an armed

career criminal, irregardless of the two-level increase pursuant to § 2K2.1(b)(4).

Thus, Darby’s second claim has no merit.

      Darby’s last argument on appeal is that the district court erred when it

denied his motion for judgment of acquittal because there was insufficient

evidence to convict him of being a felon-in-possession of a firearm. We review de

novo the denial of a motion for judgment of acquittal based on insufficient

evidence. United States v. Hansen, 262 F.3d 1217, 1236 (11th Cir. 2001). The

relevant inquiry in determining whether sufficient evidence supports a conviction

is “whether, after viewing the evidence in the light most favorable to the



                                           6
prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” United States v. Charles, 313 F.3d 1278, 1284

(11th Cir. 2002) (internal citations omitted). All reasonable inferences are drawn,

and all facts are viewed, in the government’s favor. Hansen, 262 F.3d at 1236.

“Where the government’s case is based on circumstantial evidence, ‘reasonable

inferences, and not mere speculation, must support the jury’s verdict.’” Charles,

313 F.3d at 1284 (internal citations omitted). However, a “jury is free to choose

among reasonable constructions of the evidence.” United States v. Ward, 197 F.3d

1076, 1079 (11th Cir. 1999).

      Section § 922(g) provides in pertinent part, “[i]t shall be unlawful for any

person . . . who has been convicted in any court of, a crime punishable by

imprisonment for a term exceeding one year . . . [to] possess in or affecting

commerce, any firearm or ammunition . . . .” 18 U.S.C. § 922(g)(1). Therefore,

“[t]o establish a violation of § 922(g)(1), the government must prove beyond a

reasonable doubt 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, 1296-97 (11th Cir. 2000). “The government need not prove actual

possession in order to establish knowing possession; it need only show



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constructive possession through direct or circumstantial evidence. 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.” United

States v. Greer, 440 F.3d 1267, 1271 (11th Cir. 2006).

      Credibility determinations of witnesses fall within the exclusive province of

the jury and may not be revisited unless the testimony is “incredible as a matter of

law.” United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997).

Testimony is incredible as a matter of law if it is “unbelievable on its face,” or if it

includes “facts that [the witness] physically could not have possibly observed or

events that could not have occurred under the laws of nature.” Id.

      As an initial matter, we note from the record that Darby stipulated to the first

and third elements of the offense. Thus, the only issue is whether sufficient

evidence supports the finding that he possessed the rifle. With regard to that

element, sufficient evidence supports Darby’s conviction because, viewing the

evidence in the light most favorable to the government, a reasonable jury could

have found beyond a reasonable doubt that Darby was in knowing possession of

the rifle based on the testimony of the government’s witnesses. Although there

may have been inconsistencies in their testimony, the government’s witnesses

testified to matters that they physically observed and, therefore, their testimony



                                            8
was not incredible as a matter of law. While there was no physical evidence

linking Darby to the offense, the jury still was entitled to find, based on a

reasonable construction of the evidence, that Darby possessed the Remington rifle.

Accordingly, there was sufficient evidence to prove that Darby was in knowing

possession of a firearm, and Darby stipulated that he was a convicted felon and the

firearm was in or affected interstate commerce.

      For the above-stated reasons, we affirm Darby’s convictions.

      AFFIRMED.




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