                                                      [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                 FOR THE ELEVENTH CIRCUIT                     FILED
                   ________________________          U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                                                           June 29, 2007
                          No. 06-14831                  THOMAS K. KAHN
                      Non-Argument Calendar                 CLERK
                    ________________________

             D. C. Docket No. 06-00008-CR-FTM-29-SPC

UNITED STATES OF AMERICA,



                                                            Plaintiff-Appellee,


                               versus


JEREMY JEROME MOORE,


                                                      Defendant-Appellant.


                    ________________________

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

                           (June 29, 2007)
Before TJOFLAT, BIRCH and BLACK, Circuit Judges.

PER CURIAM:

        Jeremy Jerome Moore appeals his conviction and sentence for being a felon

in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(e).

                                I. BACKGROUND

        On July 23, 2005, Fort Myers police officer Candice Derrig pulled over a

silver Dodge Intrepid. The car was driven by Jeremy Kinchen. His cousin, Latroy

Pender, was in the passenger seat, and Moore was a passenger in the back seat.

        As Derrig approached the car, she noticed the strong smell of marijuana.

The windows were rolled down, and Derrig observed that Moore had marijuana on

his shirt. After a backup officer arrived, Derrig ordered Moore out of the vehicle.

As Moore exited the vehicle, both Derrig and the backup officer noticed that he

was sitting on a handgun. Moore was subsequently arrested for possession of the

gun and ammunition. After a jury trial, Moore was found guilty of being a felon in

possession of a firearm. Moore asserts three issues on appeal, which we address in

turn.

                                  II. DISCUSSION

A. Exclusion of Searcy’s Testimony




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      Moore first contends the district court erred in excluding witness testimony

regarding the gun. At trial, Moore attempted to present testimony from Tamara

Searcy, Kinchen’s ex-girlfriend. According to the proffer, Searcy would have

testified that Kinchen had showed her a handgun in the glove compartment of the

Intrepid 19 days earlier. Searcy also would have testified the guns looked similar,

but she could not say the gun found with Moore was the same as the one possessed

by Kinchen. The district court excluded this testimony as irrelevant.

      In general, all relevant evidence is admissible, and irrelevant evidence is

inadmissible. Fed. R. Evid. 402. “The trial court is vested with broad discretion in

ruling upon the relevancy and admissibility of evidence.” United States v.

Anderson, 872 F.2d 1508, 1515 (11th Cir. 1989). “‘Relevant evidence’ means

evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than

it would be without the evidence.” Fed. R. Evid. 401.

      The district court did not abuse its discretion in excluding Searcy’s

testimony. See United States v. Alaboud, 347 F.3d 1293, 1298 (11th Cir. 2003)

(stating evidentiary decisions are reviewed for abuse of discretion). The record

shows that, at best, Searcy would have testified she saw a gun in the glove

compartment of the Intrepid 19 days before Moore was caught with a gun in the



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back seat. The record further shows she could not identify the gun or say whether

it was the same gun on both occasions. Accordingly, the only thing Searcy’s

testimony would prove is that Kinchen had a gun in the car more than two weeks

before Moore was caught with a gun in the car. The fact Kinchen had a gun in the

glove compartment on July 4, 2005, does not make it more or less likely that

Moore had a similar gun in the back seat on July 23, 2005. Moreover, because

Searcy could do no more than testify the gun in the glove compartment was

“similar,” she could not establish possession with her testimony. Accordingly, the

testimony was not relevant. See Fed. R. Evid. 401.

B. Armed Career Criminal Act

      Moore contends he should not have been sentenced under the Armed Career

Criminal Act (ACCA) because the qualifying prior convictions alleged in the

indictment were not submitted to, nor found by, a jury. Essentially, Moore is

arguing that Almenderez-Torres v. United States, 118 S. Ct. 1219 (1998), is no

longer good law. He additionally argues his case is distinguishable from

Almendarez-Torres because while Almendarez-Torres admitted his prior

convictions during his change of plea colloquy, Moore merely admitted he was a

convicted felon during his jury trial, and did not admit the actual prior offenses.




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

prove beyond a reasonable doubt that a defendant had prior convictions or allege

those prior convictions in its indictment in order to use those convictions to

enhance a defendant’s sentence. 118 S. Ct. at 1233. We have consistently held that

Almendarez-Torres remains good law. In United States v. Shelton, we held that the

decision in Almendarez-Torres was “left undisturbed by Apprendi, Blakely, and

Booker,” and that “a district court does not err by relying on prior convictions to

enhance a defendant's sentence.” 400 F.3d 1325, 1329 (11th Cir. 2005).

Additionally, we have expressly stated we are “bound by Almendarez-Torres until

it is explicitly overruled by the Supreme Court.” United States v. Dowd, 451 F.3d

1244, 1253 (11th Cir.), cert. denied 127 S. Ct. 335 (2006).

      It was not necessary for the jury to find all of Moore’s prior convictions

beyond a reasonable doubt. See Almendarez-Torres, 118 S. Ct. at 1233. Rather, it

was sufficient for the judge to find that Moore had the predicate convictions.

Shelton, 400 F.3d at 1329. Moore’s attempt to distinguish Almendarez-Torres is

equally without merit. The holding in Almendarez-Torres does not hinge on

whether a defendant goes to trial or admits his actual predicate offenses. See

Almendarez-Torres, 118 S. Ct. at 1233 (holding the government need not prove

beyond a reasonable doubt that a defendant had prior convictions or allege those



                                           5
prior convictions in its indictment in order to use those convictions to enhance a

defendant's sentence).

C. Reasonableness

       Moore asserts his sentence is unreasonable because the district court gave

undue weight to the Guidelines, notwithstanding other factors that may have called

for a lesser sentence.

       Following the Booker decision, the district court must first correctly

calculate the defendant's Guidelines range, then, using the § 3553(a) sentencing

factors,1 the court can impose a more severe or more lenient sentence as long as it

is reasonable. United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005). A

sentence within the advisory Guidelines range is not per se reasonable, but is

expected to be reasonable. See United States v. Talley, 431 F.3d 784, 788 (11th

Cir. 2005). A district court’s statement that it has considered the § 3553(a) factors

alone is sufficient, in post-Booker sentences, to indicate it considered the factors.

See United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).




       1
          The § 3553(a) factors include the available sentences, the applicable Guidelines range
and policy statements, the nature and circumstances of the offense, and the need for the sentence
to: (1) reflect the seriousness of the offense, promote respect for the law, and provide just
punishment for the offense, (2) afford adequate deterrence to criminal conduct, (3) protect the
public from further crimes of the defendant, and (4) provide the defendant with needed
correctional treatment. 18 U.S.C. 3553(a).

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      We conclude Moore’s 264-month sentence is reasonable. United States v.

Booker, 125 S. Ct. 738, 765 (2005) (holding sentences imposed under an advisory

Guidelines system are reviewed for reasonableness). The district court correctly

calculated Moore’s Guidelines range and sentenced Moore within that range, and

the district court explicitly stated it had considered the § 3553(a) factors.

Ultimately, the district court concluded that Moore’s history, both as a juvenile and

an adult, showed exactly the kind of person the ACCA was designed to address.

Given that Moore: (1) had a lengthy juvenile history, (2) was convicted for a

number of crimes at the age of 18, (3) violated his parole and was returned to

prison within months of when he was released from prison for the felonies he had

committed, and (4) committed the instant offense within days of his release from

incarceration for the parole violations; it is not unreasonable to conclude that

Moore’s youth and the short span of time during which he committed the predicate

offenses for the ACCA are not mitigating factors. It is not unreasonable to give a

mid-Guidelines sentence when considering all of the § 3553(a) factors, including

the need to protect the public, to provide deterrence, and to provide Moore with

needed correctional treatment. Accordingly, Moore’s sentence was reasonable.

      AFFIRMED.




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