                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                             OCT 31, 2007
                              No. 06-15802                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                    D. C. Docket No. 06-20177-CR-JEM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

NATASKA HOWARD,

                                                          Defendant-Appellant.


                        ________________________

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

                             (October 31, 2007)

Before TJOFLAT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Nataska Howard appeals her convictions and concurrent 360-month
sentences for conspiracy to possess with intent to distribute crack cocaine, and

possession with intent to distribute crack cocaine, violations of 21 U.S.C. §§ 846

and 841(a)(1).

                                I. BACKGROUND

      On March 7, 2006, a narcotics detective performing surveillance observed

Howard standing alongside Khambriel Fluker on a street corner in the Little Haiti

area of Miami. A vehicle drove up alongside the street corner and Fluker spoke

with the driver. The driver then exited the car and walked with Fluker across the

street in the vicinity of a trailer. The driver waited a short distance away from the

trailer while Fluker went behind it to retrieve narcotics from a hidden stash. Fluker

gave the narcotics to the driver in exchange for cash and the driver left the area.

After Fluker returned to the corner where Howard remained, a second vehicle

arrived, and Fluker again retrieved drugs from the stash and exchanged the drugs

for cash in the same fashion. Sometime during the second exchange, the detective

lost sight of Howard.

      After the second vehicle departed, the detective observed the driver of a

Ford Expedition pull up alongside Fluker, hand something to Fluker in exchange

for Fluker’s wad of cash, and park directly in front of where the detective was

hidden. Fluker then placed the item(s) he received from the driver in the stash



                                           2
where he had previously retrieved the narcotics. At that point, the detective

signaled officers at the scene to arrest Fluker and the driver of the Expedition.

      After the officers arrested Fluker, the detective observed Howard exit the

Expedition from the driver’s side whereupon she was arrested. A search of the

Expedition yielded $642 in cash and numerous baggies containing crack cocaine,

powder cocaine, and marijuana. Howard’s fingerprint was found on one of the

baggies. A search of the stash behind the trailer revealed crack cocaine, powder

cocaine, and other drugs. The officers also stopped the two drivers who had

previously received narcotics from Fluker. The packaging of the drugs retrieved

from the two drivers was exactly the same as the packaging of the drugs discovered

in the Expedition.

      Prior to the jury trial, the government filed a notice of its intent to seek

enhanced penalties due to Howard’s prior convictions under 21 U.S.C. § 851. The

jury found Howard guilty of conspiracy to possess with intent to distribute cocaine

base and guilty of possession with intent to distribute cocaine base. The district

court sentenced Howard to concurrent 360-month terms of imprisonment, to be

followed by concurrent 8-year terms of supervised release, and imposed the

customary assessment. The 360-month terms of imprisonment reflected the

bottom of the applicable guideline range of 360 months to life imprisonment.



                                           3
                                 II. DISCUSSION

A. Sufficiency of the Evidence

      On appeal, Howard argues first that the evidence was insufficient to support

her conspiracy conviction. The government, she contends, did not show what was

said between her and Fluker on the day of her arrest, and that even if she handed

him drugs in exchange for money, such a one-time transaction does not support a

conspiracy charge under the law of this Court.

      “We review the sufficiency of the evidence de novo.” United States v.

Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005) (per curiam). “[W]e must view the

evidence in the light most favorable to the government and decide whether a

reasonable juror could have reached a conclusion of guilt beyond a reasonable

doubt.” United States v. Faust, 456 F.3d 1342, 1345 (11th Cir.), cert. denied, —

U.S. —, 127 S. Ct. 615, 166 L. Ed. 2d 156 (2006).

      To convict a defendant of conspiracy to possess cocaine with intent to

distribute, “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. Hernandez, 433 F.3d 1328,

1333 (11th Cir. 2005) (quoting United States v. McDowell, 250 F.3d 1354, 1365

(11th Cir. 2001)), cert. denied, 547 U.S. 1047, 126 S. Ct. 1635, 164 L. Ed. 2d 346



                                          4
(2006). Participation in a conspiracy may be inferred from the circumstances, and

“[a]lthough mere presence at the scene 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. (quoting McDowell, 250 F.3d at 1365). However, a single

drug transaction involving “no prior or contemporaneous understanding” between

the buyer and seller is insufficient to support a conspiracy conviction. United

States v. Beasley, 2 F.3d 1551, 1560 (11th Cir. 1993) (quoting United States v.

Burroughs, 830 F.2d 1574, 1581 (11th Cir.1987)). Further, as the jury may

“choose among reasonable constructions of the evidence,” Hernandez, 433 F.3d at

1334, the jury is “free to disbelieve and disregard [the dealer’s] testimony that [the

defendant] was not involved in the drug transaction and did not serve as protection

for him.” Id. (first alteration in original) (quoting United States v. Diaz-Boyzo, 432

F.3d 1264, 1270 (11th Cir. 2005)).

      Howard’s argument is without merit. In light of the testimony evidencing:

(1) Howard’s observation of the first transaction; (2) Howard’s disappearance

during the second transaction; (3) Howard’s drive-by exchange with Fluker; (4) the

large amount of money and drugs found within the Expedition driven by Howard;

(5) Howard’s fingerprint on a baggie of drugs within the Expedition; and (6) the



                                           5
packaging of the drugs in the Expedition matching the packaging of the intercepted

buyers’ drugs, the government established more than just a buyer-seller

relationship between Fluker and Howard. The evidence was sufficient for the jury

to infer from the circumstances that Howard participated in a conspiracy.

      Howard next argues that the evidence was insufficient to support the

possession charge because she did not own the Ford Expedition in which the drugs

were found, the drugs were not in plain view, and the government presented no

evidence as to when her fingerprint print was placed on a bag containing drugs that

was found inside the vehicle. To convict a defendant of possession of a controlled

substance with intent to distribute under 21 U.S.C. § 841(a)(1), the government

must prove beyond a reasonable doubt “that a defendant knowingly possessed the

controlled substance with the intent to distribute it.” Hernandez, 433 F.3d at 1333

(quoting United States v. Leonard, 138 F.3d 906, 908 (11th Cir. 1998)).

Possession may be actual or constructive. Id. “‘Constructive possession exists

when a defendant has ownership, dominion, or control over an object itself or

dominion or control over the premises or the vehicle in which the object is

concealed.’” Id. (quoting Leonard, 138 F.3d at 908). “Intent to distribute may be

inferred from the amount of [the drug] involved.” Id. (alteration in original)

(quoting United States v. Sarmiento, 744 F.2d 755, 761 (11th Cir.1984)).



                                          6
      Again, Howard’s argument fails. The government submitted that Howard

was arrested after exiting the Expedition and, as such, she was the last individual

with dominion and control over the vehicle before the drugs were discovered

inside it. An officer testified that he heard Howard instruct the alleged owner of

the vehicle to not let anyone into it. A search of the Expedition uncovered 4.9

grams of cocaine base with 85% purity, 10.7 grams of cocaine hydrochloride with

53% purity and 23.7 grams of marijuana. These drugs were in individual baggies

or packages and, as mentioned above, one of the baggies had Howard’s fingerprint

on it. The evidence connecting Howard to Fluker and the drugs found within the

Expedition was sufficient to support her conviction of possession.

B. Career Offender under U.S.S.G. § 4B1.1(a)

      Next, Howard argues that the district court erred in classifying her as a

career offender under U.S.S.G § 4B1.1(a) because her prior state conviction for

improper exhibition of a firearm on or near school property was not a crime of

violence within U.S.S.G. § 4B1.2(a). The district court’s determination that a prior

conviction qualifies as a crime of violence is a question of law that we review de

novo. United States v. Gibson, 434 F.3d 1234, 1243 (11th Cir.), cert. denied, —

U.S. —, 126 S. Ct. 2911, 165 L. Ed. 2d 931 (2006).

      A defendant qualifies as a career offender if she was at least 18 years of age

                                          7
at the time of the commission of the instant offense, the instant offense was a crime

of violence or a controlled substance offense, and she has at least two prior

convictions for crimes of violence or controlled substance offenses. U.S.S.G.

§ 4B1.1(a). A crime of violence is any offense punishable by a term of

imprisonment exceeding one year that “(1) has as an element the use, attempted

use, or threatened use of physical force against the person of another, or (2) is

burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise

involves conduct that presents a serious potential risk of physical injury to

another.” U.S.S.G. § 4B1.2(a). The application notes further instruct that, in

addition to the enumerated crimes of violence, “other offenses are included if . . .

(B) the conduct set forth (i.e., expressly charged) in the count of which the

defendant was convicted . . . presented a serious potential risk of physical injury to

another.” Id. at cmt. (n.1).1 The application notes also provide that in deciding

whether a prior offense is a crime of violence, “the offense of conviction (i.e., the

conduct of which the defendant was convicted) is the focus of the inquiry.” Id. at

cmt. (n.2). We have held that “a court should look only to the elements of the

convicted offense, and not the conduct underlying the conviction.” United States

v. Rutherford, 175 F.3d 899, 905 (11th Cir. 1999). “[A] district court . . . may


       1
        We treat the guidelines commentary as authoritative. United States v. Searcy, 418 F.3d
1193, 1195 n.3 (11th Cir. 2005).

                                              8
inquire into the conduct surrounding a conviction if ambiguities in the judgment

make the crime of violence determination impossible from the face of the judgment

itself.” United States v. Spell, 44 F.3d 936, 939 (11th Cir. 1995).

      In United States v. Searcy, 418 F.3d 1193 (11th Cir. 2005), we interpreted

§ 4B1.2(a) as providing two alternative approaches for classifying an offense as a

crime of violence. Id. at 1196. “The first approach is to determine whether the

use, attempted use or threatened use of physical force against another is an element

of [the offense].” Id. The second is to determine “whether [the offense] involves

conduct that, by its nature, presents a serious potential risk of physical injury to

another.” Id. In United States v. McGill, 450 F.3d 1276 (11th Cir. 2006), we noted

that the second definition is broadly interpreted “to include crimes that do not fit

neatly into a category of hostile, aggressive acts.” Id. at 1280. We further noted

that “the specific language of § 4B1.2(a)(2) concerns the potential risk of physical

injury rather than the actual use of force against another.” Id. at 1281.

      At the time of Howard’s offense, Fla. Stat. § 790.115(1) provided:

    (1) A person who exhibits any sword, sword cane, firearm, electric weapon
    or device, destructive device, or other weapon, in the presence of one or
    more persons in a rude, careless, angry, or threatening manner and not in
    lawful self-defense, on the grounds or facilities of any school, school bus,
    or school bus stop, or within 1,000 feet of the real property that comprises
    a public or private elementary school, middle school, or secondary school,
    during school hours or during the time of a sanctioned school activity,
    commits a felony of the third degree, punishable as provided in s. 775.082,

                                            9
    s. 775.083, or s. 775.084. This subsection does not apply to the exhibition
    of a firearm or weapon or private real property within 1,000 feet of a
    school by the owner of such property or by a person whose presence on
    such property has been authorized, licensed, or invited by the owner.

Fla. Stat. § 790.115(1) (1997).

      In the present case, to meet the first definition the statute of conviction must

have as an element “the use, attempted use, or threatened use of physical force

against another.” The Florida statute, however, proscribes conduct that includes

the “rude” or “careless” exhibition of a weapon, which is not conduct that

necessarily involves the use, attempted use, or threatened use of force. As a result,

Howard’s prior conviction does not fit cleanly within the first definition of a crime

of violence.

      As for the second definition, i.e., whether the offense involves “conduct that

presents a serious potential risk of physical injury to another,” Howard argues that

Fla. Stat. § 790.115(1) prohibits some conduct that does not present a serious

potential risk of injury and, therefore, her conviction under that statute cannot

constitute a violent crime for career offender purposes.

      Howard fails to understand our violent crime inquiry. Even if Howard

successfully showed that § 790.115(1) broadly encompassed some conduct that

constituted a violent crime, and some that did not, the inquiry would not end there.

Under Spell, we look to whether the language of the judgment of conviction makes

                                          10
clear that the offense constituted a crime of violence and, if it does not so clarify,

the court looks behind the judgment of conviction and examines “easily produced

and evaluated court documents” to facilitate the determination. Spell, 44 F.3d at

939 (determining that a Florida statute encompassed some conduct that constituted

the violent crime of burglary, and some that did not; finding the judgment of

conviction was ambiguous; remanding and ordering the district court to examine

the defendant’s plea agreement); see also United States v. Krawczak, 331 F.3d

1302, 1306 (11th Cir. 2003) (“[T]he ability to look behind a state conviction in

federal sentencing . . . . is limited to instances where the judgment of conviction

and the statute are ambiguous.”).

      In this case, even if we were to assume that the statute and judgment of

conviction are ambiguous, Howard would still be unable to show that her previous

conviction was not a violent crime. The presentence investigative report (“PSI”)

provides that Howard was at an elementary school, pulled out a firearm, and began

firing several rounds at an unknown male who had stolen her bicycle. (PSI ¶ 33.)

She chased the unknown male across the physical education field while

discharging the firearm. Id. Because Howard failed to object to the facts set forth

in the PSI, she admitted them. United States v. Bennett, 472 F.3d 825, 833-34

(11th Cir. 2006) (holding that where defendant failed to object to facts in PSI



                                           11
relating to prior conviction, the failure to object constituted an admission); see also

United States v. Glasco, 223 Fed. Appx. 951, 956 (11th Cir. 2007) (same); United

States v. Carlos-Santos, 164 Fed. Appx. 938, 939 (11th Cir. 2006) (same).

       In light of Howard’s admission of the facts underlying her previous

conviction, i.e., repeatedly firing a firearm at an individual on school grounds, she

has no basis to contend that it was not a crime of violence for career offender

purposes.2

C. Unreasonable Sentence

       Lastly, Howard argues that her concurrent 360-month sentences are

unreasonable and disproportionate to the crimes at issue. She contends that

without the 21 U.S.C. § 851 statutory enhancement and the career offender

enhancement, the guideline range would have been 78-97 months, and that the

resulting 22-year increase in the guideline range is unreasonable under the 18

U.S.C. § 3553(a) factors. She further argues that the district court’s statements

indicate that the court considered only the guideline range and not the § 3553(a)

factors.

       We review the final sentence imposed by the district court for



       2
       Consequently, we do not reach the question of whether Fla. Stat. 790.115(1) and Howard’s
judgment of conviction are ambiguous.


                                              12
reasonableness. United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005) (per

curiam). Reasonableness review is deferential and “the party who challenges the

sentence bears the burden of establishing that the sentence is unreasonable in the

light of both [the] record and the factors in section 3553(a).” Id. at 788. We

review only the final sentence for reasonableness rather than each individual

decision made during the sentencing process. United States v. Winingear, 422

F.3d 1241, 1245 (11th Cir. 2005) (per curiam). A sentence within the applicable

guideline range has an expectation of reasonableness. Talley, 431 F.3d at 788.3

Relevant to the reasonableness inquiry is a comparison of the sentence actually

imposed to the maximum sentence that could have been imposed under the

guidelines. See United States v. Martinez, 434 F.3d 1318, 1322 (11th Cir.), cert.

denied, — U.S. —, 126 S. Ct. 2946, 165 L. Ed. 2d 976 (2006) (concluding that a

sentence almost one-third the length of the statutory maximum sentence was

reasonable). “[W]e will remand for resentencing if we are left with the definite and

firm conviction that the district court committed a clear error of judgment in

weighing the § 3553(a) factors by arriving at a sentence that lies outside the range

of reasonable sentences dictated by the facts of the case.” United States v.


       3
        In Rita v. United States, — U.S. —, 127 S. Ct. 2456, 2467-68, 168 L. Ed. 2d 203 (2007),
the Supreme Court upheld other circuits’ decisions affording a presumption of reasonableness to
sentences within the properly calculated Guidelines range; however, this circuit does not apply such
a presumption. United States v. Campbell, 491 F.3d 1306, 1313 (11th Cir. 2007).

                                                13
Williams, 456 F.3d 1353, 1363 (11th Cir. 2006), cert. dismissed, — U.S. —, 127 S.

Ct. 3040, — L. Ed. 2d — (2007). The district court, however, is not required “to

state on the record that it has explicitly considered each of the § 3553(a) factors or

to discuss each of the § 3553(a) factors.” United States v. Scott, 426 F.3d 1324,

1329 (11th Cir. 2005).

      The factors in 18 U.S.C. § 3553(a) include the following:

    (1) the nature and circumstances of the offense and the history and
    characteristics of the defendant; (2) the need to reflect the seriousness of
    the offense, to promote respect for the law, and to provide just punishment
    for the offense; (3) the need for deterrence; (4) the need to protect the
    public; (5) the need to provide the defendant with needed educational or
    vocational training or medical care; (6) the kinds of sentences available;
    (7) the Sentencing Guidelines range; (8) pertinent policy statements of the
    Sentencing Commission; (9) the need to avoid unwanted sentencing
    disparities; and (10) the need to provide restitution to victims.

Talley, 431 F.3d at 786 (citing 18 U.S.C. § 3553(a)).

      In this case, district court correctly calculated the guideline range and heard

arguments from both parties on the appropriate factors to consider in sentencing

Howard. The court explained that it was aware it could sentence outside the

guidelines, but found that the defense had not sufficiently demonstrated that a

within-range sentence was “unreasonable under the circumstances of this case.”

The court further stated that it had considered the parties’ statements, the PSI, the

advisory guidelines, and the statutory factors, and was imposing the sentences in



                                          14
light of “the severity of the guideline imprisonment range and to provide sufficient

punishment.” As a result, Howard has failed to demonstrate that her concurrent

360-month sentences, which were at the lowest end of the applicable guideline

imprisonment range (360 months to life), were unreasonable.

      Accordingly, we affirm.

      AFFIRMED.




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