           Case: 15-14532   Date Filed: 09/28/2016   Page: 1 of 12


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-14532
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 9:15-cr-80031-DMM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

JOSEPH MCDONALD,

                                                         Defendant-Appellant.

                       ________________________

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

                            (September 28, 2016)

Before TJOFLAT, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Defendant Joseph McDonald appeals his convictions and 240-month

sentence after a jury convicted him of two counts of being a felon in possession of

a firearm, in violation of 18 U.S.C. § 922(g)(1). He raises three arguments on

appeal. First, he asserts that the district court abused its discretion by admitting

evidence of his previous conviction for being a felon in a possession of a firearm.

Next, he argues that his constitutional rights were violated by the imposition of a

sentencing enhancement based on his prior convictions that were not alleged in the

indictment or found by a jury. Finally, he contends that the district court erred by

imposing a two-level sentence enhancement under U.S.S.G. § 3C1.2 for reckless

endangerment during flight. After careful review, we affirm.

I. BACKGROUND

      A.     Factual Background

      On July 28, 2013, officers with the Palm Beach Gardens Police Department

responded to a call about a stolen vehicle in progress. Officer Robert Boschen

arrived at the scene and saw a suspicious vehicle travel through the same

intersection twice. Officer Boschen decided to conduct an investigatory stop and

when he turned on the lights of his patrol car, the vehicle sped up and fled on to the

highway.

      At this point, another officer, Sergeant Randy Buntin joined the pursuit. The

vehicle eventually stopped and Defendant exited the rear passenger door.


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Defendant had his hands at his waistline. Sergeant Buntin ordered Defendant to

stop, and when Defendant did not comply, Sergeant Buntin tased him. As he was

being tased, Defendant dropped a white plastic bag on the ground. Officers

eventually placed Defendant under arrest and recovered a Smith & Wesson

semiautomatic pistol from the white bag.

      Subsequently, on December 17, 2013, Corporal Brian Cullen received

information about a potential stolen vehicle being driven by Defendant near a

residential community. Corporal Cullen went to the area and observed Defendant

driving the stolen vehicle. After Defendant parked the car, Corporal Cullen

activated his patrol lights, which caused Defendant to drive over a parking hump

and flee. Corporal Cullen pursued Defendant, but because Defendant was passing

cars and driving at a high rate of speed, Corporal Cullen’s supervisor called off the

pursuit to avoid endangering the public. Corporal Cullen eventually found the

vehicle unoccupied and parked in the residential community. As Corporal Cullen

waited near the vehicle, he observed Defendant exit a stairwell. Upon being

approached by Corporal Cullen and his partner, Defendant immediately fled and

dropped the plastic bag that he was holding. Defendant refused the officers’

commands to stop, so Corporal Cullen tased him. Defendant was later placed

under arrest. Another officer canvassed the area where Corporal Cullen had

observed Defendant and found a briefcase which contained a MAC-10 firearm and


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several rounds of ammunition. Forensic investigators later found Defendant’s

DNA on the firearm.

      B.     Procedural History

      A federal grand jury returned an indictment against Defendant, charging him

with two counts of being a felon in possession of a firearm, in violation of 18

U.S.C. §§ 922(g)(1), 924(e). Defendant pleaded not guilty and proceeded to trial.

      Prior to trial, the Government provided Defendant with written notice of its

intent to introduce Defendant’s 2013 conviction for being a felon in possession of a

firearm, pursuant to Federal Rule of Evidence 404(b), for the purpose of showing

Defendant’s intent, knowledge, absence of mistake, or lack of accident. The

Government later filed a motion in limine to formally introduce this evidence.

Defendant responded that the introduction of his prior conviction for being a felon

in possession was inadmissible because he was not seeking a defense of mistake or

accident and introduction of that evidence would be unduly prejudicial.

      At trial, after the Government presented its case, it sought to formally

introduce evidence of Defendant’s prior conviction for being a felon in possession

of a firearm. Defendant argued that the introduction of such evidence would be

unduly prejudicial and that a limiting instruction would not provide an adequate

remedy. The district court permitted the evidence of Defendant’s prior conviction,

but excluded the underlying nature of the offense as unfairly prejudicial. After the


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district court provided a limiting instruction to the jury, the Government introduced

a certified judgment showing that Defendant had a prior conviction for being a

felon in possession of a firearm.

      Defendant presented the testimony of one witness and then rested his case.

In its closing argument, the Government relied on Defendant’s prior conviction to

argue that the jury may consider the fact that Defendant knowingly possessed a

firearm before to conclude that he knowingly possessed the firearms in the present

case. The jury returned a guilty verdict on both counts.

      In anticipation of sentencing, the probation officer prepared a Presentence

Investigation Report (“PSR”). The PSR assigned Defendant a base offense level of

22 pursuant to U.S.S.G. § 2K2.1(a)(3) because Defendant committed the present

offense subsequent to sustaining at a felony conviction for a controlled substance

offense. Defendant received various enhancements, including a two-level

enhancement under U.S.S.G. § 3C1.2 for reckless endangerment during flight.

Defendant’s adjusted offense level was 30, but because he was armed career

criminal under 18 U.S.C. § 924(e) based on his prior convictions for serious drug

offenses, Defendant’s total offense level was 33. Based on a total offense level of

33 and a criminal history category of V, Defendant’s advisory guideline range was

210 to 262 months’ imprisonment.




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      Defendant filed objections to the PSR. Of relevance, he argued that the two-

level enhancement under § 3C1.2 that he received for creating a substantial risk of

death or serious bodily injury should not be applied because Defendant was not the

driver of the vehicle during the November 28, 2013 incident. He also objected to

the Armed Career Criminal (“ACCA”) enhancement because the prior convictions

used to support that enhancement were not alleged in the indictment or proven to

the jury beyond a reasonable doubt.

      At sentencing, the district court overruled Defendant’s objection to use of

his prior convictions to support the ACCA enhancement in light of binding

precedent. As to his objection to the reckless endangerment enhancement, the

Government called Corporal Cullen who reiterated that Defendant sped away as

Corporal Cullen attempted to initiate a traffic stop on December 17, 2013. He

described that Defendant’s vehicle reached speeds of 80 miles per hour, passed

other vehicles in a no-passing zone, and entered an intersection from the wrong

lane of traffic. The court determined that the reckless endangerment enhancement

was appropriate because of Defendant’s reckless driving, which caused officers to

call off their pursuit rather than endanger others. The district court determined that

Defendant’s advisory guideline range was 210 to 262 months’ imprisonment based

on his status as an armed career criminal. After considering the 18 U.S.C.




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§ 3553(a) factors, the district court sentenced Defendant to 240 months’

imprisonment. This appeal followed.

II. DISCUSSION

      A.     Admission of Evidence of Prior Conviction

      Defendant argues first that the district court erred under Rule 404(b) by

permitting the Government to introduce evidence of his prior conviction for being

a felon in possession of a firearm.

      We review the district court’s admission of evidence under Rule 404(b) for

an abuse of discretion. United States v. Giordano, 261 F.3d 1134, 1140 (11th Cir.

2001). Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act is not

admissible to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character.” Fed. R. Evid. 404(b).

However, the “evidence may be admissible for another purpose, such as proving

motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident.” Id. “Rule 404(b) is a rule of inclusion” and thus

“like other relevant evidence, should not lightly be excluded when it is central to

the prosecution’s case.” United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir.

2003).

      Here, the district court did not abuse its discretion by admitting evidence of

Defendant’s prior conviction for being a felon in possession of a firearm. To be


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admissible under Rule 404(b): “1) the evidence must be relevant to an issue other

than the defendant’s character; 2) sufficient evidence must be presented to allow a

jury to find that the defendant committed the extrinsic act; and, 3) the probative

value of the evidence must not be substantially outweighed by its undue

prejudice.” United States v. Sterling, 738 F.3d 228, 238 (11th Cir. 2013).

Defendant’s argument centers on the first and third prongs.1

       As to the first prong, the evidence was relevant to an issue other than

Defendant’s character, namely whether Defendant knowingly possessed the

firearm. Id. Because Defendant did not admit or stipulate to having possessed the

firearm, the Government was required to prove this element and attempted to do so

by introducing evidence of Defendant’s prior conviction for unlawful possession of

a firearm. See United States v. Taylor, 417 F.3d 1176, 1182 (11th Cir. 2005)

(concluding that the district court did not abuse its discretion by admitting

evidence of defendant’s prior conviction to show that defendant “knowingly

possessed a firearm at another point in time”); 18 U.S.C. § 922(g)(1).

       Defendant asserts that the district court improperly relied on Jernigan to find

the evidence admissible under Rule 404(b) because Defendant’s defense was not

that he lacked knowledge of the firearms, but that he never possessed the firearms
1
  Although Defendant presents no argument related to the second prong, this prong is met
because the Government submitted a certified judgment of Defendant’s prior conviction. See
Jernigan, 341 F.3d at 1282 (stating that a conviction is adequate proof to show that a defendant
committed a prior act).


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at all. Defendant’s attempt to distinguish the circumstances of the present case

from Jernigan is misplaced. In Jernigan, we held that the district court did not

abuse its discretion by admitting evidence of the defendant’s prior conviction for

being a felon in possession of a firearm. See Jernigan, 341 F.3d at 1281

(explaining that there is a “logical connection” between knowingly possessing a

firearm on one occasion and knowledge of the firearm on a subsequent occasion).

Like Defendant, the defendant in Jernigan also disputed having actually possessed

the firearm at issue and not merely having knowledge or intent regarding the

proximity of the firearm. See Jernigan, 341 F.3d at 1276 (stating defendant’s

claim that the firearm “was not his”).

      Finally, as to the third prong, the evidence of Defendant’s prior conviction

was more probative than prejudicial because it was the same offense as the

offenses charged in the present case. See United States v. Ramirez, 426 F.3d 1344,

1354 (11th Cir. 2005) (“A similarity between the other act and a charged offense

will make the other offense highly probative with regard to a defendant’s intent in

the charged offense.”). “Whether the probative value of Rule 404(b) evidence

outweighs its prejudicial effect depends upon the circumstances of the extrinsic

offense.” United States v. Edouard, 485 F.3d 1324, 1345 (11th Cir. 2007)

(alteration and quotations omitted). The district court recognized the potential

prejudice of introducing the nature of Defendant’s prior conviction—shooting into


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an occupied vehicle—and therefore excluded that information. The district court

also instructed the jury twice that it may consider the evidence of Defendant’s prior

conviction only for the limited purpose of determining whether Defendant had the

state of mind necessary to commit the crimes charged in the indictment. See

Jernigan, 341 F.3d at 1282 (concluding that the probative value of the evidence

regarding defendant’s prior convictions was not substantially outweighed by its

prejudicial impact in part because the district court gave limiting instructions and

excluded the potentially prejudicial aspects of defendant’s convictions).

Accordingly, we cannot conclude that the district court abused its discretion by

admitting this evidence.

      B.     Use of Prior Convictions for Enhancement Purposes

      Defendant further contends that his sentence was improperly enhanced under

the ACCA based on prior convictions that were not charged in the indictment or

proven to a jury beyond a reasonable doubt.

      In Almendarez-Torres v. United States, the Supreme Court held that, in the

context of § 1326(b)(2)’s penalty provision, a defendant’s prior conviction is not

an element of the offense, and therefore, it need not be charged in an indictment or

proven to a jury beyond a reasonable doubt. 523 U.S. 224, 226–27, 244 (1998).

We have explicitly stated that Almendarez-Torres remains binding precedent




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unless and until the Supreme Court overrules it. United States v. Harris, 741 F.3d

1245, 1250 (11th Cir. 2014).

      As Defendant concedes, his argument is foreclosed by Almendarez-Torres.

See Almendarez-Torres, 523 U.S. at 226–27. We are bound by that holding unless

and until it is overruled by the Supreme Court. See Harris, 741 F.3d at 1250.

      C.     U.S.S.G. § 3C1.2 Enhancement

      Defendant also argues that the district court erred by imposing the two-level

enhancement under § 3C1.2 because the circumstances surrounding his flight from

police did not create a substantial risk of death or bodily injury.

      We review the district court’s findings of facts for clear error and its

application of the Guidelines to those facts de novo. United States v. Martikainen,

640 F.3d 1191, 1193 (11th Cir. 2011). Section 3C1.2 of the Sentencing Guidelines

provides for a two-level increase in a defendant’s offense level if “the defendant

recklessly created a substantial risk of death or serious bodily injury to another

person in the course of fleeing from a law enforcement officer.” U.S.S.G. § 3C1.2.

The term reckless “refers to a situation in which the defendant was aware of the

risk created by his conduct and the risk was of such a nature and degree that to

disregard that risk constituted a gross deviation from the standard of care that a

reasonable person would exercise in such a situation.” United States v. Matchett,

802 F.3d 1185, 1197 (11th Cir. 2015) (quotations omitted).


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      Because Defendant’s total offense level was determined by his ACCA

status, his challenge to the two-level reckless endangerment enhancement will

make no difference to his guideline range given that his argument regarding the use

of his prior convictions to support the ACCA enhancement is foreclosed by

binding precedent. In any event, the district court did not err by imposing the two-

level enhancement for reckless endangerment during flight. As noted by the

district court, Corporal Cullen testified that Defendant traveled at 80 miles per hour

in a 60 mile-per-hour zone, he passed other vehicles in a no-passing zone, and

entered an intersection in the wrong lane of traffic. Defendant’s actions while

fleeing police represented a gross deviation from the standard of care that a

reasonable person would have exercised. See id. Indeed, Defendant’s actions were

such that officers had to call off their pursuit out of fear that someone would be

injured during the chase. Cf. United States v. Washington, 434 F.3d 1265, 1268

(11th Cir. 2006) (“Driving a car at high speed in an area where people are likely to

be found constitutes reckless disregard for others’ safety.”). In short, the district

court properly applied the two-level enhancement under § 3C1.2.

III. CONCLUSION

      For the foregoing reasons, Defendant’s convictions and sentences are

AFFIRMED.




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