                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                    FILED
                         ________________________         U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                 June 9, 2006
                               No. 05-11952                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                     D. C. Docket No. 03-60264-CR-CMA

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

FRED CARSWELL, JR.,

                                                           Defendant-Appellant.


                         ________________________

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

                                (June 9, 2006)

Before CARNES, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

     Fred Carswell appeals his conviction and sentence for conspiring to possess
with intent to distribute cocaine, 21 U.S.C. § 846, and possessing with intent to

distribute cocaine, 21 U.S.C. § 841(a)(1).1 On appeal, Carswell raises four

challenges to his conviction, and one challenge to his sentence. First, he argues

that the trial court erred by admitting evidence under Federal Rule of Evidence

404(b) when the government failed to give reasonable notice of its intent to use

such evidence. Second, he argues that evidence related to his 1996 and 1997

convictions was improperly admitted under Rule 404(b) as it “could do nothing

more than show criminal propensity.” Third, Carswell argues that the trial court

erred in not granting his motion for judgment of acquittal because the evidence was

insufficient to support his convictions. Fourth, he argues that the district court

erred by refusing to provide transcripts of certain trial testimony to the jury during

deliberations.

       Finally, Carswell argues that the district court erred at sentencing by (1)

applying the Federal Sentencing Guidelines as mandatory; (2) finding that he was

responsible for 265.55 grams of crack cocaine and that he was a career offender

when the jury did not find those facts, in violation of United States v. Booker, 543

       1
          During trial, after the issue was raised by the court, the government admitted that the
indictment erroneously identified the defendant as Fred Carswell, Jr., when his name was actually
Fred Carswell, III. (See R6 at 161-165). After the parties submitted authority on the subject, the
court used the name Fred Carswell, III, on the jury instructions and verdict form, and noted in its
written judgment that the defendant’s true name was Fred Carswell, III. (See R1-175, 176, 180, 181,
212 at 1; R7 at 4-5). Because this discrepancy is not material to the outcome of this appeal, we will
refer to the appellant as “Carswell” for ease of reference.

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U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); (3) failing to consider the factors

enumerated under 18 U.S.C. § 3553(a).

                                           I.

      We review a preserved challenge to a district court evidentiary ruling for

abuse of discretion. United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir.

2003). We find none here.

      Federal Rule of Evidence Rule 404(b) prohibits all evidence of “crimes,

wrongs, or acts” to prove that a person is of a character that would commit the

crime charged, but it permits such evidence to prove, among other things, motive,

intent, or absence of mistake or accident, “provided that upon request by the

accused, the prosecution in a criminal case shall provide reasonable notice in

advance of trial, or during trial if the court excuses pretrial notice on good cause

shown, of the general nature of any such evidence it intends to introduce at trial.”

Fed.R.Evid. 404(b) (emphasis added).

      We have held that three factors govern a district court’s determination of the

reasonableness of the notice provided: “(1) [w]hen the [g]overnment, through

timely preparation for trial, could have learned of the availability of the witness;

(2) [t]he extent of prejudice to the opponent of the evidence from a lack of time to

prepare; and (3) [h]ow significant the evidence is to the prosecution’s case.”



                                           3
United States v. Perez-Tosta, 36 F.3d 1552, 1562 (11th Cir. 1994). “To protect

defendants from ‘trial by ambush,’ the [g]overnment should be charged with the

knowledge of 404(b) evidence that a timely and reasonable preparation for trial

would have revealed.” Id. at 1561.

        In Perez-Tosta, the government only gave notice of some of its 404(b)

evidence a couple minutes before jury selection, but the district court found that the

notice was reasonable because the government had only learned the witnesses

would be available the day before, and because the defense ultimately had six days

to prepare. Id. at 1560. We found that the government had not intentionally

waited, that the appellant had not explained how he was prejudiced, and that the

evidence was important to the government’s case. Id. at 1562. By contrast, in

United States v. Carrasco, 381 F.3d 1237 (11th Cir. 2004), cert. denied, 543 U.S.

1177 (2005), the government never gave the defense notice of the evidence, and

we reversed the conviction because the evidence went to the heart of the defense

and because the government’s case was not overwhelming. Carrasco, 381 F.3d at

1241.

        Here, the certificate of service reflects that the government faxed its notice

to Carswell the day before the start of trial, and Carswell filed a motion in

opposition on the first day of trial. Argument was had on the motion on the second



                                            4
day of trial, and Carswell was able to fully address the issue. He was also on some

notice, as to the convictions, as the government had filed notice that it would use

them at sentencing. Moreover, despite his claim that he was prejudiced, he failed

to show the district court how the admission of the evidence would force him to

change his strategy or impair his ability to present a defense. We find that

Carswell has not demonstrated that the failure to strike the late notice constituted

an abuse of the court’s discretion.

                                          II.

      We review properly preserved challenges to the district court’s rulings on

admission of evidence for an abuse of discretion. United States v. Jiminez, 224

F.3d 1243, 1249 (11th Cir. 2000). A court abuses its discretion when its decision

“rests upon a clearly erroneous finding of fact, an errant conclusion of law, or an

improper application of law to fact.” United States v. Baker, 432 F.3d 1189, 1202

(11th Cir. 2005), cert. denied, 126 S.Ct. 1809 (2006).

      Federal Rule of Evidence 404(b) states:

      Evidence 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). If (1) the evidence is relevant to one of these elements, (2)



                                           5
there is “sufficient proof that the defendant committed the prior act, and [(3) the

government] can show that the probative value of the evidence is not substantially

outweighed by its undue prejudice, and [it] meets the other requirements of

[Fed.R.Evid.] 403,” then it may be admissible under Rule 404(b). Baker, 432 F.3d

at 1205.

      Even relevant evidence “may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury.” Fed.R.Evid. 403. However, this rule is an “extraordinary

remedy . . . which should be used sparingly since it permits the trial court to

exclude concededly probative evidence.” United States v. Wright, 392 F.3d 1269,

1276 (11th Cir. 2004), cert. denied, 544 U.S. 968 (2005). Rule 404(b) “is a rule of

inclusion.” Baker, 432 F.3d at 1204-05. Both the “rules and practice favor the

admission of evidence rather than its exclusion if it has any probative value at all.”

Young v. Illinois Cent. Gulf R.R. Co., 618 F.2d 332, 337 (5th Cir. 1980).

      In this case, the government argued before the district court that it wanted to

use the evidence to show identity and intent to counter Carswell’s defense that he

did not know drugs were being sold in the premises. Carswell admitted that he

could only argue that the evidence would be more prejudicial than probative.

Analyzing the motion, the district court expressly found that the evidence was



                                           6
more probative than prejudicial, and noted how important it would be where there

was no physical evidence of Carswell’s offense. Finally, although the district court

did not give a limiting instruction at the time the evidence came in, it did so later,

and again with the rest of its instructions at the close of the trial. We cannot say

that there was an abuse of discretion.

                                          III.

      We review de novo the disposition of a defendant’s properly preserved

motion for judgment of acquittal. Perez-Tosta, 36 F.3d at 1556. “The district

court’s decision on sufficiency of the evidence is entitled to no deference by this

court.” United States v. Taylor, 972 F.2d 1247, 1250 (11th Cir. 1992). The district

court’s denial of “motions for judgment of acquittal will be upheld if a reasonable

trier of fact could conclude that the evidence establishes the defendant’s guilt

beyond a reasonable doubt.” United States v. Rodriguez, 218 F.3d 1243, 1244

(11th Cir. 2000). “It is not necessary that the evidence exclude every reasonable

hypothesis of innocence or be wholly inconsistent with every conclusion except

that of guilt, provided a reasonable trier of fact could find that the evidence

establishes guilt beyond a reasonable doubt.” United States v. Young, 906 F.2d

615, 618 (11th Cir. 1990). This is so because “[a] jury is free to choose among

reasonable constructions of the evidence.” United States v. Vera, 701 F.2d 1349,



                                            7
1357 (11th Cir. 1983). We must view the facts, and draw all reasonable inferences

therefrom, in the light most favorable to the government. United States v. Hansen,

262 F.3d 1217, 1236 (11th Cir. 2001).

      To sustain a conviction for conspiracy to possess cocaine with intent to

distribute under 21 U.S.C. § 846, the government must prove beyond a reasonable

doubt that (1) an illegal agreement existed; (2) the defendant knew of it; and (3) the

defendant, with knowledge, voluntarily joined it. United States v. McDowell, 250

F.3d 1354, 1365 (11th Cir. 2001). “Although mere presence at the scene of a

crime is insufficient to support a conspiracy conviction, presence nonetheless is a

probative factor which the jury may consider in determining whether a defendant

was a knowing and intentional participant in a criminal scheme.” Id.

      To support a conviction for possession of cocaine with intent to distribute

under 21 U.S.C. § 841(a), “the government had to show that [Carswell] knowingly

possessed the cocaine and that he intended to distribute it.” United States v.

Pollock, 926 F.2d 1044, 1050 (11th Cir. 1991).

      In arguing before the district court, Carswell only addressed his motion for

judgment of acquittal due to insufficient evidence as to Counts 2 and 5 while he

was eventually convicted only of Counts 1 and 4. Moreover, it is possible that

Carswell actually conceded the sufficiency of the evidence as to Counts 1 and 4



                                          8
when arguing in favor of the former motion. However, the government does not

raise this point. Furthermore, it does not matter what standard of review we apply,

as it is clear that the evidence was sufficient to support Carswell’s convictions.

      Here, the DEA agents testified that Carswell delivered the cocaine to Witsell

Williams on October 23, 2003, and then was at least present, if not watching, while

the confidential informant paid Williams for the cocaine and the payment was

counted, and that Carswell then took the money from Williams after the deal was

completed. In addition, the government provided pictures of Carswell, apparently

with the money in his hand, leaving the scene. One of the DEA agents testified

that the baggies of cocaine purchased were the same ones that he observed

Carswell take out of his pocket and deliver to Williams. Another agent testified

that both Williams and Samuel Carswell told him, after they were arrested, that

they got all the crack cocaine they sold from Fred Carswell. He further testified

that, before the arrests, their confidential informant told him that the cocaine came

from Samuel Carswell, but that Fred Carswell “may have” had something to do

with it. The agent testified that their investigation determined that the crack

cocaine came from Fred Carswell.

      Williams testified that he sold crack cocaine for Samuel and Fred Carswell.

He testified that Fred Carswell cooked the cocaine, and that either Samuel or Fred



                                           9
Carswell would hide the cocaine in Ruth Carswell Victor’s carport. Williams

specifically testified that Carswell had surprised him by personally delivering the

cocaine on October 23, 2003, then was present as the money was counted, and that

Carswell put the money in a white paper bag that he was carrying. Samuel

Carswell also testified that Fred Carswell cooked cocaine, alleging that he did so at

his sister’s house. He testified that he got the cocaine from Fred Carswell and

would hide it in the carport. He further testified that Williams worked for him as a

dealer, and that Fred Carswell was a bigger dealer than he or Williams.

      On this basis, a reasonable trier of fact could conclude that the evidence

established beyond a reasonable doubt that Williams and Samuel and Fred

Carswell had knowingly and voluntarily made an illegal agreement to possess and

distribute crack cocaine, and that Fred Carswell had knowingly possessed crack

cocaine with the intent to distribute it. Accordingly, we affirm the district court’s

denial of Carswell’s motion for a judgment of acquittal.

                                          IV.

      We find no merit to Carswell’s argument that the district court erred by

refusing to provide transcripts of certain trial testimony to the jury during

deliberations. There is nothing to suggest reversible error occurred in this regard.

“A district court has broad discretion in determining whether to grant or deny a



                                           10
jury’s request to read a portion of the trial transcript.” United States v. Edwards,

968 F.2d 1148, 1152 (11th Cir. 1992) (“[i]n a case such as this one, allowing a jury

to read requested portions of the transcript could easily result in jurors’ placing

undue weight on the reviewed testimony”). “This is one of those cases where the

trial court, having given the matter proper consideration, could have been right on

either course of action.” United States v. Quesada-Rosadal, 685 F.2d 1281, 1283

(11th Cir. 1982) (affirming district court’s instruction to the jury to rely on their

own recollection). Here the court gave the jury’s request due consideration,

including consulting the parties for argument on the issue. The parties mutually

suggested an instruction, and the court agreed that it was fitting. Accordingly, we

find no abuse of discretion.

                                           V.

      In Booker, the Supreme Court recognized that the then-mandatory Federal

Sentencing Guidelines violated a defendant’s Sixth Amendment rights. See

Booker, 543 U.S. at 233, 125 S.Ct. at 749-50. The Court cured the problem by

excising 18 U.S.C. §§ 3553(b)(1) and 3742(e), thereby making the Guidelines

advisory only. Id. at 245-46, 125 S.Ct. at 756-57. Therefore, a post-Booker

sentencing court must still apply the Guidelines. United States v. Crawford, 407

F.3d 1174, 1179-80 (11th Cir. 2005). Nevertheless, a court violates a defendant’s



                                           11
Sixth Amendment right to trial when it applies them as mandatory. See United

States v. Shelton, 400 F.3d 1325, 1331 (11th Cir. 2005).

      After applying the Guidelines correctly, the district court may impose a

sentence more severe or more lenient than the Guidelines range, but we will review

it for reasonableness “in the context of the factors outlined in” 18 U.S.C. § 3553(a).

United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005). This review is

deferential. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

“[N]othing in Booker or elsewhere requires the district court to state on the record

that it has explicitly considered each of the § 3553(a) factors . . . .” United States

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

      In this case, the only possible suggestion that the court applied the

Guidelines as mandatory was its brief statement, after explaining that the

calculation of Carswell’s guideline range as a career offender was not affected by

any of the challenges he had raised, that it had “no discretion to disregard” his

career offender status once it was established. While reading this comment alone

could imply that the court was approaching the guidelines as mandatory, the court

itself specifically clarified later that Carswell’s sentence was imposed under the

advisory Guidelines, and that it considered it to be reasonable.

      Finally, we have held that Booker did not disturb the holding in



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Almendarez-Torres v. United States, 523 U.S. 224, 228, 243-44, 118 S.Ct. 1219,

1223, 1230-31, 140 L.Ed.2d 350 (1998), that sentence-enhancing factors, notably

prior convictions, do not need to be included in the indictment unless they are an

element of the charged offense. United States v. Cantellano, 430 F.3d 1142, 1147

(11th Cir. 2005), cert. denied, 126 S.Ct. 1604 (2006) (“[A] district court does not

err by relying on prior convictions to enhance a defendant's sentence”). Further,

the elements of the career offender Guideline, U.S.S.G. § 4B1.1, are questions of

law. United States v. Gibson, 434 F.3d 1234, 1247-48 (11th Cir. 2006).

Accordingly, the court did not err when it determined that Carswell was a career

offender, and this dictated his Guideline range. For this reason, we need not

determine whether the court erred when it found that the applicable drug amount

was 265.55 grams.

      AFFIRMED




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