                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                   FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                     ________________________   ELEVENTH CIRCUIT
                                                              MAY 27, 2010
                            No. 09-14108                       JOHN LEY
                        Non-Argument Calendar                    CLERK
                      ________________________

                D. C. Docket No. 08-00099-CR-WBH-1-1

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus

TRAVIS MONTE NELSON,

                                                        Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                    _________________________

                             (May 27, 2010)

Before EDMONDSON, CARNES and ANDERSON, Circuit Judges.

PER CURIAM:
      Travis Monte Nelson appeals his convictions and 280-month total sentence

for illegal possession of a firearm by a felon with three prior convictions for

serious drug offenses, 18 U.S.C. §§ 922(g) and 924(e), and illegal possession of a

stolen firearm, 18 U.S.C. § 922(j).

                                           I.

      Nelson challenges the sufficiency of the evidence supporting his

convictions. We review de novo the sufficiency of the evidence, viewing the

evidence “in the light most favorable to the government, with all inferences and

credibility choices drawn in the government’s favor.” United States v. LeCroy,

441 F.3d 914, 924 (11th Cir. 2006). We must affirm the defendant’s conviction if

“any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” United States v. Garcia-Bercovich, 582 F.3d 1234,

1237 (11th Cir. 2009) (quotation marks omitted). The evidence does not have to

“exclude every hypothesis of innocence or be completely inconsistent with every

conclusion other than guilt because a jury may select among constructions of the

evidence.” United States v. Bailey, 123 F.3d 1381, 1391 (11th Cir. 1997).

      To convict a defendant of possession of a firearm by a felon under 18 U.S.C.

§ 922(g)(1), the government must establish that: (1) the defendant was a convicted

felon (2) in knowing possession of a firearm (3) that was in or affecting interstate



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commerce. United States v. Deleveaux, 205 F.3d 1292, 1296–97 (11th Cir. 2000).

To obtain a conviction under § 922(j), the government must prove that: (1) the

defendant possessed a stolen firearm; (2) the firearm was part of interstate

commerce; and (3) the defendant knew or had reason to know that the firearm was

stolen. United States v. Smith, 532 F.3d 1125, 1129 (11th Cir. 2008).

      Nelson only challenges the possession element of the offenses. “Possession

may be actual or constructive, joint or sole.” United States v. Gunn, 369 F.3d

1229, 1234 (11th Cir. 2004). “To prove actual possession the evidence must show

that the defendant either had physical possession of or personal dominion over the

thing allegedly possessed.” United States v. Leonard, 138 F.3d 906, 909 (11th Cir.

1998). The government may show possession through direct eyewitness testimony

linking the defendant to the object, as well as circumstantial evidence. See United

States v. Sweeting, 933 F.2d 962, 965 (11th Cir. 1991).

      Nelson’s sufficiency challenge lacks merit. A reasonable juror could have

found that he was in actual possession of the firearm based on Officer Rodriguez’s

testimony that, while conducting an unrelated traffic stop, he observed Nelson

shooting the firearm from the back of a Dodge pickup truck. See Sweeting, 933

F.2d at 965. We conclude that sufficient evidence supported Nelson’s convictions.




                                          3
                                           II.

      Nelson also contends that the district court erred in admitting Investigator

Griffin’s testimony concerning his 2003 arrest for possession of a firearm under

Federal Rule of Evidence 404(b). We review evidentiary rulings for an abuse of

discretion. United States v. Duran, 596 F.3d 1283, 1296 (11th Cir. 2010). “In

reviewing 404(b) decisions, we apply a three-part test for admissibility of such

evidence: (1) the evidence must be relevant to an issue other than the defendant’s

character; (2) there must be sufficient proof that the factfinder could find that the

defendant committed the extrinsic act; and (3) the evidence must possess probative

value that is not substantially outweighed by undue prejudice.” United States v.

Perez, 443 F.3d 772, 779 (11th Cir. 2006).

      Nelson argues that the second and third prongs are not met. Investigator

Griffin’s testimony provided a sufficient basis for the jury to find that Nelson

committed the extrinsic offense. Griffin testified that Nelson had a key to the

apartment in which the firearm was found. Based on that testimony, a reasonable

juror could infer that he exercised control over the apartment and therefore had

constructive possession of the firearm inside. See United States v. Thompson, 473

F.3d 1137, 1142 (11th Cir. 2006); United States v. Harris, 20 F.3d 445, 454 (11th

Cir. 1994) (noting that defendant’s “unrestricted access to the home permitted the



                                           4
jury to reasonably infer that he exercised control over the house and therefore

maintained constructive possession of the cocaine found at the house”).

      Griffin’s testimony was also more probative than prejudicial because the

past and charged offenses were substantially similar. “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) (quotation marks and alterations omitted). Relevant

circumstances include the “overall similarity between the extrinsic act and the

charged offense, as well as temporal remoteness.” United States v. Jernigan, 341

F.3d 1273, 1282 (11th Cir. 2003). The charged offenses involved the same

conduct as the extrinsic act, and the incidents occurred within a three year time

period. See United States v. Pollock, 926 F.2d 1044, 1048 (11th Cir. 1991)

(concluding that a five-year span did not render the extrinsic conduct too remote

for proper consideration). The district court also gave two limiting instructions to

the jury reducing the risk of undue prejudice. See Edouard, 485 F.3d at 1346. We

conclude that no abuse of discretion occurred.

                                         III.

      Nelson also contends that his 280-month total sentence was substantively

unreasonable. We review a sentence for reasonableness under a “deferential



                                          5
abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41, 128 S.Ct.

586, 591 (2007). A sentence must be both procedurally and substantively

reasonable. United States v. Livesay, 525 F.3d 1081, 1090–91 (11th Cir. 2008). In

assessing the substantive reasonableness of a sentence, we review the totality of the

circumstances “including the extent of any variance from the Guidelines range.”

See Gall, 552 U.S. at 51, 128 S.Ct. at 597. If the district court’s sentence is within

the guidelines range, we may, but are not required to, presume the sentence is

reasonable. Id.; see United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005)

(“After Booker, our ordinary expectation [of reasonableness] still has to be

measured against the record, and the party who challenges the sentence bears the

burden of establishing that the sentence is unreasonable in the light of both that

record and the factors in section 3553(a).”); see also United States v. Hunt, 526

F.3d 739, 746 (11th Cir. 2008) (“Although we do not automatically presume a

sentence within the guidelines range is reasonable, we ‘ordinarily . . . expect a

sentence within the Guidelines range to be reasonable.’” (quoting Talley, 431 F.3d

at 788)).

      Nelson argues that his sentence was substantively unreasonable because the

district court relied on Officer Rodriguez’s testimony in imposing its sentence.

The district court’s reliance on Officer’s Rodriguez’s testimony was entirely



                                           6
proper. See United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989) (noting

that “[t]he findings of fact of the sentencing court may be based on evidence heard

during trial”). We cannot say that Nelson’s sentence, which was near the low end

of his Guidelines range, was unreasonable.

                                            IV.

       Finally, Nelson contends that the district court violated his Fifth and Sixth

Amendment rights when it sentenced him under the enhanced penalties of the

Armed Career Criminal Act, 18 U.S.C. § 924(e), based on prior convictions that

were not proven to the jury. Because Nelson did not raise this argument before the

district court, we review only for plain error. United States v. Camacho-Ibarquen,

410 F.3d 1307, 1312 (11th Cir. 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. If all three conditions are met,

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

only if (1) the error affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (quotation marks omitted).

       We conclude that no error occurred, plain or otherwise. Neither the Fifth

nor the Sixth Amendment prevented the district court from finding the fact of

Nelson’s prior convictions or using them to designate him an Armed Career



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Criminal under 18 U.S.C. § 924(e)(1). See Almendarez-Torres v. United States,

523 U.S. 224, 228, 118 S.Ct. 1219, 1223 (1988); see also United States v. Gibson,

434 F.3d 1234, 1246 (11th Cir. 2006) (“The government need not allege in its

indictment and need not prove beyond a reasonable doubt that a defendant had

prior convictions for a district court to use those convictions for purposes of

enhancing a sentence.”) (quotation marks omitted); United States v. Shelton, 400

F.3d 1325, 1330 (11th Cir. 2005) (“[A] district court does not err by relying on

prior convictions to enhance a defendant’s sentence.”).

      AFFIRMED.




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