                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            APR 5, 2006
                             No. 05-15329                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 05-20210-CR-JAL

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

JASPER MOORE,

                                                         Defendant-Appellant.


                       ________________________

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

                              (April 5, 2006)

Before MARCUS, WILSON and FAY, Circuit Judges.

PER CURIAM:
      Jasper Moore appeals his conviction following a jury trial and his 210-

month sentence for possession of a firearm and ammunition by a convicted felon,

in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Moore argues on appeal that the

district court abused its discretion in admitting during Moore’s trial evidence of his

prior uncharged conduct of possessing a firearm. Moore also contends that his

210-month sentence was unreasonable in light of the Supreme Court’s decision in

United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

For the reasons set forth more fully below, we affirm.

      A federal grand jury returned an indictment, charging Moore with the above-

referenced § 922(g)(1) offense. Prior to trial, the government filed two notices of

its intent to rely on several prior bad acts, pursuant to Fed.R.Evid. 404(b). Moore

responded by filing a motion in limine, seeking to exclude evidence of all of these

acts. The government subsequently replied that it had decided to rely only on a

August 20, 2004, arrest, for possession of a firearm by a convicted felon. The

district court denied Moore’s motion in limine, explaining, in relevant part, that the

proffered evidence was relevant and admissible under Fed.R.Evid. 404(b), to

demonstrate Moore’s criminal intent.

      At trial, Carl Baaske, a detective with the Miami-Dade Police Department,

testified that, on March 1, 2005, while watching an apartment complex in Miami,



                                           2
Florida that had been the scene of frequent drug deals he observed three persons

near a dumpster, including Travis Jones, whom Detective Baaske had warned one

week earlier about selling drugs, and Moore, whom Detective Baaske had not

previously met. That same evening, Detective Baaske observed Jones engage in

nine drug transactions, each time giving the buyer a bag containing either

marijuana, cocaine, or cocaine base, in exchange for money. During these

transactions, Moore either stayed within two to three feet of Jones, conversing with

him, or looked up and down the nearby avenue—conduct Detective Baaske

attributed to acting as a “lookout.” After Detective Baaske described to other

officers the three persons he had observed at the dumpster and these other officers

approached the suspects, the suspects all ran away from the dumpster, with Jones

running towards his mother’s residence. The officers then arrested Jones and

executed a search warrant for his mother’s residence, during which they recovered

marijuana, cocaine base, and a firearm.

      Orlando Reyes, a sergeant with the Miami-Dade Police Department, also

testified, stating that, after Detective Baaske informed him about these drug sales,

and after he and Officer Willie McFadden approached the suspects, Moore ran

through a breezeway in the complex, at the end of which the officers blocked his

path. When Moore attempted to run through these officers, they grabbed him,



                                          3
wrestled him to the ground, and handcuffed him, during which time Moore

vigorously resisted them. When the officers finally were able to handcuff Moore

and pull him up from the ground, Sergeant Reyes saw a firearm fall out of the left

pocket of Moore’s pants.1

       The government, over Moore’s renewed Rule 404(b) objection, also

introduced testimony from Adrian Barazal, another detective with the Miami-Dade

Police Department, that, on August 20, 2004, at about 3:00 p.m., Detectives

Barazal and Octavio Tellez were on patrol in the Liberty City area of Miami,

Florida, in an unmarked police vehicle, when they observed a driver fail to stop at

the stop sign. When the detectives attempted to stop this vehicle by turning on

their red and blue lights, they saw the driver look back at them and accelerate his

vehicle, thus beginning a car chase. During this chase, Detective Barazal observed

(1) the driver’s head “disappear for a second and then pop back up,” and (2) the

driver reach across the passenger of the vehicle and throw an object out of the

window. As the thrown object hit the ground, the detectives slowed their vehicle

and saw that it was a revolver. The detectives, however, then resumed their chase

and eventually stopped the vehicle, which Moore was driving. Upon his arrest,


       1
           The government also produced (1) a stipulation by Moore that he previously had been
convicted of a state felony; and (2) evidence showing that the firearm that fell out of Moore’s
pocket was an operable Star .380 caliber pistol, had six rounds of ammunition and had traveled
in interstate or foreign commerce.

                                                4
Moore told the detectives: “You didn’t catch me with it.” Detective Tellez later

recovered from the side of the road a Smith & Wesson .38 caliber revolver.

      The court then instructed the jury twice that it could consider this evidence

of uncharged prior bad acts only for the limited purpose of determining Moore’s

intent as to the charged § 922(g)(1) offense, and only if it decided beyond a

reasonable doubt that Moore had committed the charged offense. Moore decided

not to testify or put on any evidence. The jury convicted him as charged.

      Moore’s presentence investigation report (“PSI”) calculated that he had a

base offense level of 24, pursuant to U.S.S.G. § 2K2.1(a)(2), because the offense

involved possessing a firearm and ammunition by a convicted felon who

committed the offense subsequent to sustaining two felony convictions of either a

crime of violence or a controlled-substance offense. The PSI also recommended a

two-level increase, pursuant to U.S.S.G. § 2K2.1(b)(4), because the firearm was

stolen, and a four-level increase, pursuant to § 2K2.1(b)(5), because the firearm

and ammunition were used or possessed in connection with a drug offense.

However, because Moore was an armed career criminal, he was subject to (1) a 15-

year mandatory minimum statutory sentence, pursuant to 18 U.S.C. § 924(e); and

(2) an adjusted offense level of 33, pursuant to U.S.S.G. § 4B1.4(a) & (b)(3)(B).




                                          5
With a criminal history category of V,2 Moore had a resulting guideline range of

210 to 262 months’ imprisonment. Moore’s only objection to the PSI was to the

four-level § 2K2.1(b)(5) enhancement.

       On September 7, 2005, at sentencing, Moore renewed his objection to the

§ 2K2.1(b)(5) enhancement. He, however, conceded that this enhancement would

not affect his offense level because, due to his status as an armed career criminal,

his offense level automatically was increased to level 33. The court, nevertheless,

granted Moore’s objection to the § 2K2.1(b)(5) enhancement and, adopting the

PSI’s guideline calculations, determined that Moore’s resulting guideline range

was 210 to 262 months’ imprisonment.

       Moore then argued that his statutory mandatory minimum sentence of 15

years’ imprisonment was “more than adequate” to punish him and to deter him

from committing future offenses. Moore also argued that, although he had a long

criminal history, this history was, at least in part, the result of the failure of the

criminal justice system to rehabilitate him. The government responded that

Moore’s prior criminal history involved violent felony offenses, including



       2
          Moore’s PSI reflects that his criminal history category of V was based on a lengthy
criminal history, including convictions for burglary with assault, robbery with a firearm, armed
robbery with a firearm, attempted robbery, robbery and burglary with an assault, and a failure on
Moore’s part to take advantage of opportunities to rehabilitate himself. This category also was
the result of Moore being an armed career criminal, pursuant to U.S.S.G. § 4B1.4(c)(1).

                                                6
carjacking, with two of his offenses involving the use of firearms. The government

also contended that the evidence showed that Moore was using the firearm in the

instant offense to further drug-trafficking activity. After considering the

sentencing factors in 18 U.S.C. § 3553(a), the court determined that a sentence at

the bottom of Moore’s guideline range, that is, 210 months’ imprisonment, was

appropriate.

Issue 1:       Evidence of Moore’s prior uncharged conduct

      Moore argues that the district court abused its discretion in admitting, as

evidence of his intent, that he had possessed a firearm as a convicted felon on

August 20, 2004, because, in not putting on a defense at trial, he had not contested

the issue of intent. Moore contends that this evidence, instead, was improperly

admitted to “bolster the credibility of” the government’s witnesses.

      Rule 404(b) provides in relevant part that:

      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). Our test for admissibility of Rule 404(b) evidence is as

follows:

      First, the evidence must be relevant to an issue other than the
      defendant’s character; Second, the act must be established by

                                           7
       sufficient proof to permit a jury finding that the defendant committed
       the extrinsic act; Third, the probative value of the evidence must not
       be substantially outweighed by its undue prejudice, and the evidence
       must meet the other requirements of Rule 403.3

United States v. Matthews, 431 F.3d 1296, 1310-11 (11th Cir. 2005) (quotation

omitted). The district court’s decision to admit or exclude such evidence is

reviewed for abuse of discretion. Id.

       In applying the first element of this Rule 404(b) test—the only element

Moore is challenging on appeal—we have explained that the government has the

burden of proving knowing possession of a firearm to convict a defendant of a

§ 922(g) offense. United States v. Taylor, 417 F.3d 1176, 1182 (11th Cir.), cert.

denied, 126 S.Ct. 768 (2005). Thus, we concluded in Taylor that, in the absence of

the defendant’s admission of this intent, and in light of the district court’s limiting

instruction to the jury, the court did not abuse its discretion in admitting evidence

of a prior conviction for being a felon in possession of a firearm under Rule

404(b). See id.

       Furthermore, to the extent Moore has cited to our prior decision in United

States v. Matthews, 411 F.3d 1210, 1225 (11th Cir. 2005), vacated and superseded



       3
          Rule 403 provides that, “[a]lthough 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, or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.” See Fed.R.Evid. 403.

                                                8
on rehearing by United States v. Matthews, 431 F.3d 1296 (11th Cir. 2005), in

which we determined that the admission of Rule 404(b) evidence was improper

when the defendant failed to mount an affirmative defense and, thus, squarely

challenge the issue of intent, this decision has been vacated.4 Indeed, in our

superseding opinion in Matthews, we explained that a defendant’s plea of not

guilty, alone, “without an accompanying affirmative removal,” leaves the element

of intent at issue. See Matthews, 431 F.3d at 1311.

       Similar to the facts in Taylor, the charge at issue here was a § 922(g)(1)

offense; the government, therefore, had the burden of proving that Moore

knowingly possessed a firearm. See Taylor, 417 F.3d at 1182. Although Moore is

contending that he did not testify or present any evidence, he also has not cited to

evidence in the record showing that he entered into a stipulation relating to, or

admitted, this intent. Moreover, the challenged Rule 404(b) evidence here

occurred in August 2004, within seven months of the charged conduct in March

2005. See also United States v. Butler, 102 F.3d 1191, 1195-96 (11th Cir. 1997)

(holding that a three-year-old prior conviction for possession of cocaine for

personal use was relevant and admissible for purposes of demonstrating the


       4
           In citing to our prior decision in Matthews, Moore notes that it has been superseded
and vacated. He, however, relies on it, among other authorities, for the proposition that, where
intent is at issue, and the act charged “is not equivocal,” proof of other offenses will not be
permitted.

                                                9
defendant’s intent in the charged conspiracy for possession with intent to

distribute).

       Thus, instead of constituting improper character evidence, this evidence was

relevant as evidence of Moore’s knowledge and intent. See Matthews, 431 F.3d at

1311; see also Taylor, 417 F.3d at 1182. Additionally, the court properly

instructed the jury twice that it could consider this evidence of uncharged prior bad

acts only for the limited purpose of determining Moore’s intent as to the charged

§ 922(g)(1) offense, and only if the jury decided beyond a reasonable doubt that

Moore had committed the charged offense. We, therefore, conclude that the

district court did not abuse its discretion in admitting this Rule 404(b) evidence.

Issue 2:       Whether Moore’s 210-month sentence was reasonable

       Moore also argues on appeal that his 210-month sentence was unreasonable

because, although this sentence was at the bottom of his guideline range, his length

of incarceration exceeded his “culpability for this crime.” Moore contends that,

although he should have been subject to a longer sentence for being a “recidivist

offender,” his guideline range in the absence of his criminal history only would

have been 21 to 27 months’ imprisonment, and his substantially increased

guideline range for being an armed career offender of 210 to 262 months’

imprisonment, which represented a “10-fold increase,” far exceeded a reasonable



                                          10
guideline range. Citing to State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S.

408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003), Moore also argues that his sentence

was in violation of the Due Process Clause of the Fourteenth Amendment to the

United States Constitution.5

       Prior to Moore’s sentencing hearing, the Supreme Court issued its decision

in Booker, holding that the mandatory nature of the federal guidelines rendered

them incompatible with the Sixth Amendment’s guarantee to the right to a jury

trial. Booker, 543 U.S. at 232-35, 125 S.Ct. at 749-51.6 In a second and separate

majority opinion, the Booker Court explained that, to best preserve Congress’s

intent in enacting the Sentencing Reform Act of 1984, the appropriate remedy was

to “excise” two specific sections—18 U.S.C. § 3553(b)(1) (requiring a sentence

within the guideline range, absent a departure) and 18 U.S.C. § 3742(e)

(establishing standards of review on appeal, including de novo review of



       5
         The Supreme Court discussed in State Farm that, “[w]hile States possess discretion over
the imposition of punitive damages, it is well established that there are procedural and
substantive constitutional limitations on these awards.” See State Farm Mut. Auto Ins. Co., 538
U.S. at 416, 123 S.Ct. at 1519. The State Farm Court ultimately concluded that an award of
$145 million in punitive damages against a defendant, where full compensatory damages only
were $1 million, was excessive and in violation of the Due Process Clause of the Fourteenth
Amendment to the United States Constitution. See id. at 412, 123 S.Ct. at 1517.
       6
          The Supreme Court in Booker explicitly reaffirmed its rationale in Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that “[a]ny fact (other than a
prior conviction) which is necessary to support a sentence exceeding the maximum authorized
by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or
proved to a jury beyond a reasonable doubt.” See Booker, 543 U.S. at 244, 125 S.Ct. at 756.

                                                11
departures from the applicable guideline range)—thereby effectively rendering the

federal guidelines advisory only. Id. at 258, 125 S.Ct. at 764. Thus, the Booker

Court concluded that a defendant’s guideline range is now advisory; it no longer

dictates his final sentence, but, instead, is an important sentencing factor that the

sentencing court is to consider, along with the factors contained in 18 U.S.C.

§ 3553(a).7 Id. at 259-60, 125 S.Ct. at 764-65.

       We review the sentence imposed by the district court for reasonableness.

United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005). When we review for

reasonableness, our review is deferential. Id. at 788. We do not, as the district

court did, determine the exact sentence to be imposed. Id. Moreover, the party

who is challenging the sentence “bears the burden of establishing that the sentence

is unreasonable in the light of both [the] record and the factors in [§ 3553(a)].” Id.




       7
          The relevant sentencing factors enumerated in § 3553(a) include: “(1) the nature and
circumstances of the offense and the history and characteristics of the defendant; (2) the need for
the sentence imposed–(A) to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal
conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the
defendant with needed educational or vocational training, medical care, or other correctional
treatment in the most effective manner; (3) the kinds of sentences available; (4) the kinds of
sentence and the sentencing range established for . . . (A) the applicable category of offense
committed by the applicable category of defendant as set forth in the guidelines . . .; (5) any
pertinent policy statement []; (6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar conduct; and (7) the need
to provide restitution to any victims of the offense.” See 18 U.S.C. § 3553(a)(1)-(7).

                                                12
      When the court considered the factors of § 3553(a), it was not required to

discuss each of them. See United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.

2005) (explaining “nothing in Booker or elsewhere requires the district court to

state on the record that it has explicitly considered each of the section 3553(a)

factors or to discuss each of the section 3553(a) factors”). Regardless, in the

instant case, the court stated that it had taken into account Moore’s advisory

guideline range, as well as the statutory sentencing factors in § 3553(a), including

the need for the sentence in this case to reflect the seriousness of the offense, to

promote respect for the law, to provide just punishment and adequate deterrence,

and to protect the public. See 18 U.S.C. § 3553(a)(2)(A) (the need for the sentence

imposed to reflect the seriousness of the offense, to promote respect for the law,

and to provide just punishment for the offense); 18 U.S.C. § 3553(a)(2)(C) (the

need for the sentence imposed to protect the public from further crimes of the

defendant); 18 U.S.C. § 3553(a)(3) (the kinds of sentences available).

      Moore’s PSI also reflects that he had a lengthy criminal history and had not

taken advantage of past opportunities to rehabilitate himself. See 18 U.S.C.

§ 3553(a)(1) (“the history and characteristics of the defendant”). Thus, Moore has

failed to show that the court did not consider § 3553(a)’s sentencing factors, or that

his 210-month sentence, which was at the bottom end of his guideline range of 210



                                           13
to 262 months’ imprisonment, was unreasonable. See Talley, 431 F.3d at 788

(explaining that, although a sentence within a defendant’s guidelines range is not

per se reasonable, ordinarily we “would expect a sentence within the [g]uideline

range to be reasonable”).

       Finally, to the extent Moore is contending for the first time on appeal that

the district court committed reversible error in relying on the “10-fold” increase in

his guideline range due to his recidivism, he is analogizing to the Supreme Court’s

limits on disparities between punitive and compensatory damage awards in civil

cases. Our review of this newly raised argument, however, only is for plain error.

See United States v. Rodriguez, 398 F.3d 1291, 1297-98 (11th Cir.) (reviewing a

newly raised Booker challenge for plain error), cert. denied, 125 S.Ct. 2935 (2005).

“An appellate court may not correct an error the defendant failed to raise in the

district court unless there is: ‘(1) error, (2) that is plain, and (3) that affects

substantial rights.’” Id. (quotation omitted). “‘If all three conditions are met, an

appellate court may then exercise its discretion to notice a forfeited error, but only

if (4) the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings.’” Id. (quotation omitted).

       “[A]n error cannot meet the ‘plain’ requirement of the plain error rule if it is

not ‘clear under current law.’” United States v. White, 416 F.3d 1313, 1319 (11th



                                             14
Cir. 2005) (quotation omitted). “[W]here neither the Supreme Court nor this Court

has ever resolved an issue, and other circuits are split on it, there can be no plain

error in regard to that issue.” Id. (quotation omitted). Here, neither the Supreme

Court nor this Court has addressed the argument that the Supreme Court’s limits on

disparities in civil awards should be applied in the criminal-sentencing context.8

Thus, even if we were to conclude that error occurred, it was not “plain.”

       Accordingly, we conclude that the district court did not abuse its discretion

in admitting evidence of Moore’s prior uncharged conduct of possessing a firearm.

Additionally, Moore has failed to show that his 210-month sentence was

unreasonable. We, therefore, affirm his conviction and sentence.

       AFFIRMED.




       8
         Indeed, the Supreme Court explained in State Farm that, “[a]lthough these [punitive
damage] awards serve the same purposes as criminal penalties, defendants subjected to punitive
damages in civil cases have not been accorded the protections applicable in a criminal
proceeding. This increases our concern over the imprecise manner in which punitive damages
systems are administered.” See State Farm Mut. Auto Ins. Co., 538 U.S. at 417, 123 S.Ct. at
1520.

                                              15
