                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________
                                                                       FILED
                                 No. 05-14951                 U.S. COURT OF APPEALS
                                                                ELEVENTH CIRCUIT
                             Non-Argument Calendar                  August 31, 2006
                           ________________________              THOMAS K. KAHN
                                                                     CLERK
                    D. C. Docket No. 04-00031-CR-OC-10-GRJ

UNITED STATES OF AMERICA,


                                                                   Plaintiff-Appellee,

                                       versus

BOBBY GUY KING,

                                                               Defendant-Appellant.


                           ________________________

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

                                 (August 31, 2006)

Before BIRCH, BARKETT and RONEY, Circuit Judges.

PER CURIAM:

      Bobby Guy King appeals his 48 month sentence for conspiring to possess

with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), and
(b)(1)(D); and intentionally obtaining and attempting to obtain marijuana, while

being an inmate of a federal prison, in violation of 18 U.S.C. § 1791(a)(2), (b)(3),

and (d)(1)(B). King argues five issues on appeal:

             (1)     Whether the district court abused its discretion by admitting
                     evidence of King’s post-indictment criminal conduct at trial

             (2)     Whether the district court abused its discretion by admitting
                     evidence at trial that King had threatened a cooperating witness

             (3)     Whether the district court abused its discretion by denying
                     King’s belated request to subpoena three inmates to appear at
                     trial

             (4)     Whether the evidence was sufficient to sustain a conviction for
                     conspiracy

             (5)     Whether the district court’s application of the career offender
                     guideline under an advisory guidelines scheme violated King’s
                     Sixth Amendment right to have a jury determine sentencing
                     enhancements beyond a reasonable doubt

      We affirm and address the appellate arguments seriatim, stated as in the

appellant’s brief.

      I.     “That 404B evidence of a post-indictment extrinsic act should
             not have been introduced at trial because the prejudicial value
             far outweighed its minimal probative value.”


      We review 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).




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      Rule 404(b) permits the admission of evidence of extrinsic offenses to show,

inter alia, knowledge, intent, and plan or absence of mistake. See Fed.R.Evid.

404(b); United States v. Lehder-Rivas, 955 F.2d 1510, 1515-16 (11th Cir. 1992).

             In determining whether evidence is admissible under
             Rule 404(b), we apply a three-part test: (1) the evidence
             must be relevant to an issue other than defendant’s
             character; (2) the probative value must not be
             substantially outweighed by its undue prejudice; (3) the
             government must offer sufficient proof so that the jury
             could find that defendant committed the act. 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.

United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005) (citations and

internal quotations omitted). The principles governing extrinsic offense evidence

are the same whether that offense occurs before or after the offense charged.

United States v. Beechum, 582 F.2d 898, 903 n.1 (5th Cir. 1978) (en banc).

      The district court did not abuse its discretion by admitting evidence that on

August 30, 2004, a date outside the time frame charged in the indictment, prison

officers witnessed increased traffic at King’s cell, smelled a strong odor of

marijuana emanating from his cell, and seized marijuana from him. With respect

to relevance, King’s plea of not guilty, without an accompanying affirmative

removal, made his intent a material issue. United States v. Matthews, 431 F.3d

1296, 1311 (11th Cir. 2005). King’s post-indictment conduct was relevant to the

                                          3
intent at issue in the charged conspiracy to distribute marijuana. United States v.

Delgado, 56 F.3d 1357, 1365 (11th Cir. 1995). King’s post-indictment conduct

was very similar to the offense charged. See Beechum, 582 F.2d at 903.

      With respect to the element of prejudice, the district court did not abuse its

discretion by finding that the extrinsic evidence was not unduly prejudicial.

Evidence of King’s August 30 conduct was highly probative of his intent to

participate in a conspiracy to distribute marijuana. See Beechum, 582 F.2d at 914-

15. Moreover, the district court instructed the jurors twice as to the significance of

this evidence and its proper consideration within the subject trial.

      II.    “That the district court erred in refusing to direct the United
             States Marshal Service to transport, pursuant to writs ad
             testificandum, three federal inmates that were critical to his
             defense.”


      The proper method for securing a prisoner’s presence at trial is a petition for

a writ of habeas corpus ad testificandum, however, courts have required defendants

in criminal cases requesting petitions for writs of habeas corpus ad testificandum to

comply with the requirements of Federal Rule of Criminal Procedure 17(b).

United States v. Rinchack, 820 F.2d 1557, 1567 (11th Cir. 1987).

      Federal Rule of Criminal Procedure 17 provides for the issuance of

subpoenas in criminal cases, and states: “[u]pon a defendant’s ex parte



                                           4
application, the court must order that a subpoena be issued for a named witness if

the defendant shows . . . the necessity of the witness’s presence for an adequate

defense.” Fed.R.Crim.P. 17(b). “This showing must be satisfactory to the district

court, which means that the district court exercises a broad discretion in granting or

denying a motion for the issuance of a subpoena made by a defendant financially

unable to pay the fees of the witness.” Welsh v. United States, 404 F.2d 414, 417

(11th Cir. 1968) (internal quotation omitted). The grant or denial of a Rule 17(b)

motion is reviewed for abuse of discretion. Rinchack, 820 F.2d at 1566.

      In Rinchack, we held that a district court may refuse to issue a writ of habeas

corpus ad testificandum solely on the grounds that the petition is untimely so long

as the defendant had adequate notice of the trial date. We held that where the

defendant “had three full weeks from the time the trial was initially set to the time

the case actually went to trial to file a petition for a writ of habeas corpus ad

testificandum, yet did not file the request until the trial actually began” the district

court did not abuse its discretion in denying the request. The defendant in

Rinchack argued that the district court abused its discretion because the court did

not inquire into what the potential witnesses might be expected to testify, however,

we rejected this argument stating that the “law is crystal clear that the burden of

showing necessity and relevance is on the defendant.” Rinchack, 820 F.2d at 1568.



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       Pursuant to this precedent, we hold there was no abuse of discretion under

the facts of this case.

       King had approximately two months before the continued trial date to collect

and prepare any necessary information to request that the three inmates be

subpoenaed. King, however, waited until two calendar days--and no business

days--prior to trial to submit his request for subpoenas. Aside from alleging that he

did not have the necessary information to make the request, King did not offer any

explanation for his delay.

       III.   “That the district court erred by allowing evidence that he had
              allegedly threatened a co-conspirator and government witness,
              Wilcox, for testifying against him because it alerted the jurors
              that he was in custody shortly before trial.”


       We have held that district courts may consider evidence of threats to

witnesses as relevant in showing consciousness of guilt. United States v. Gonzalez,

703 F.2d 1222, 1223 (11th Cir. 1983). Although 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.

Fed.R.Evid. 403. The trial judge must judge the threat’s potential prejudice in the




                                           6
same manner as he would other potentially prejudicial evidence. Gonzalez, 703

F.2d at 1223.

      The district court did not abuse its discretion by allowing testimony that

King had made threatening statements to Wilcox prior to trial. Wilcox’s testimony

was relevant because it tended to show his consciousness of guilt. See Gonzalez,

703 F.2d at 1223. The argument that the testimony was overly prejudicial because

it informed the jurors that he was previously incarcerated is without merit since the

jurors had to learn of King’s previous incarceration to make the necessary findings

with respect to count two charged in the indictment, because one element of that

offense was that he was an inmate in a federal prison.

      IV.    “That the evidence was insufficient to sustain his conviction for
             participation in the conspiracy to distribute a controlled
             substance.”


      Federal law provides that any person who attempts or conspires to commit

[an offense such as §§ 841(a)(1), and (b)(1)(D)] shall be subject to the same

penalties as those prescribed for the offense, the commission of which was the

object of the attempt or conspiracy. 21 U.S.C. § 846. Subsection 841(a)(1)

proscribes manufacturing, distributing, or dispensing, or possessing with intent to

manufacture, distribute, or dispense, a controlled substance. 21 U.S.C. § 841 (a)(1).




                                          7
      Whether the evidence is sufficient to support a defendant’s conviction is

reviewed de novo, to determine whether a reasonable jury could have concluded

beyond a reasonable doubt that the defendant was guilty of the crimes charged

viewing the evidence in the light most favorable to the government. United States

v. Toler, 144 F.3d 1423, 1428 (11th Cir. 1998).

      The government must prove beyond a reasonable doubt that there was:

(1) an agreement between the defendant and one or more persons, (2) the object of

which was to do either an unlawful act or a lawful act by unlawful means. Toler,

144, F.3d at 1426. The agreement is the “essential evil at which the crime of

conspiracy is directed,” and “agreement remains the essential element of the

crime.” Toler, 144, F.3d at 1425. There is no requirement that the government

prove the commission of any overt acts in furtherance of the conspiracy. United

States v. Shabani, 513 U.S. 10, 15, 115 S.Ct. 382, 385, 130 L.Ed.2d 225 (1994).

We have indicated, however, that an “agreement may be inferred when the

evidence shows a continuing relationship that results in the repeated transfer of

illegal drugs to the purchaser.” United States v. Mercer, 165 F.3d 1331, 1335

(11th Cir. 1999) (per curiam).

      In United States v. Villegas, 911 F.2d 623, 628 (11th Cir. 1990), we held that

participation in a criminal conspiracy need not be proven by direct evidence, but



                                          8
may be proven by circumstantial evidence. Nonetheless, “proof that the accused

committed an act which furthered the purpose of the conspiracy is an example of

the type of circumstantial evidence the government may introduce to prove the

existence of agreement.” United States v. Arias-Izquierdo, 449 F.3d 1168, 1182

(11th Cir. 2006). The defendant need not have knowledge of all of the details of

the conspiracy or be aware of all of the participants or participate in every stage,

rather all that is required is that he intentionally joined the conspiracy. United

States v. Reed, 980 F.2d 1568, 1582-1583 (11th Cir. 1993). In Toler, we said that

“a defendant can be convicted even if his participation in the scheme is slight by

comparison to the actions of other co-conspirators,” so long as the defendant’s

intent to participate is proven beyond a reasonable doubt. Toler, 144 F.3d at 1428.

The “uncorroborated testimony of an accomplice is sufficient to support a

conviction . . . if it is not on its face incredible or otherwise insubstantial.” United

States v. LeQuire, 943 F.2d 1554, 1562 (11th Cir. 1991).

      There was sufficient evidence to support the conviction in this case. The

record shows that three inmates, Wilcox, Brown, and Helms, provided

uncontradicted testimony that King purchased and distributed quantities of

marijuana to Helms and other prisoners at Coleman. See LeQuire, 943 F.2d at

1562. The government’s witnesses testified that from June until September 2003,



                                            9
King made approximately three purchases of marijuana in quarter ounce and half

ounce amounts. See Mercer, 165 F.3d at1335. Even if King did keep some of the

marijuana for his personal use, the record supported a finding that he did not keep

all of it. Rather, he sold drugs to other prisoners in the recreation yard and to his

cell mate. The record showed that King intentionally joined the conspiracy when

he assisted Wilcox to distribute the marijuana to others. See Reed, 980 F.2d at

1582-83.

      These facts are further supported by Wilcox’s testimony that King

threatened him prior to trial, which showed a consciousness of guilt. See Gonzalez,

703 F.2d at 1223. In addition, extrinsic evidence from King’s August 30 conduct

further supports the jurors’ finding that King possessed with intent to distribute

marijuana because a correction officer testified that he saw a lot of traffic entering

and exiting King’s cell, and he discovered marijuana on his person. See

Arias-Izquierdo, 449 F.3d at 1182.

      Because each of the elements of the charged conspiracy offense was

sufficiently proven, King failed to demonstrate that a reasonable jury could not

have found beyond a reasonable doubt that he committed the offense for which he

was convicted.




                                           10
      V.     “That according to Blakely v. Washington, 542 U.S. 296, 124
             S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v.
             Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005),
             the district court erred by applying the career offender
             enhancement where the fact of the predicate offenses was not
             charged in the indictment and was not proven to the jurors
             beyond a reasonable doubt.”


      Because King raised a constitutional objection to his sentence before the

district court based on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159

L.Ed.2d 403 (2004), we review the constitutional issue de novo and will reverse

only for a harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).

      In Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219,

1232-33, 140 L.Ed.2d 350 (1998), the Supreme Court held that 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. Subsequent to its decision in Almendarez-

Torres, the Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466, 490, 120

S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000), that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

Nevertheless, while the Supreme Court indicated in Apprendi that its decision in

Almendarez-Torres might be called into question, it specifically decided not to

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address the issue. Apprendi, 530 U.S. at 489-90, 120 S.Ct. at 2362. Since

Apprendi, the Supreme Court has maintained an exception to its general rule for

enhancements based upon judicial findings regarding prior convictions. See

Blakely, 542 U.S. at 305, 124 S.Ct. at 2538; Booker, 543 U.S. at 230, 125 S.Ct. at

749-51.

      Accordingly, we have upheld the decision in Apprendi and its progeny, and

maintained that “a district court does not err by relying on prior convictions to

enhance a defendant’s sentence.” See e.g. United States v. Guadamuz-Solis, 232

F.3d 1363 (11th Cir. 2000) (stating that “Almendarez-Torres remains the law”);

United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005) (holding that the

district court did not violate the Sixth Amendment by using “admitted” facts to

increase defendant’s sentence); United States v. Cantellano, 430 F.3d 1142, 1147

(11th Cir. 2005) (holding that the fact of a prior conviction clearly may be found

by the district court); United States v. Orduno-Mireles, 405 F.3d 960, 961 (11th

Cir.), cert. denied, 126 S.Ct. 223 (2005) (explaining that the Sixth Amendment is

not implicated when a defendant’s sentence is enhanced based on a prior

conviction).

      Therefore, there was no Blakely error in this case.




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      Although King objected to the inclusion of two of his prior convictions in

the career offender computation, he did not object to the three additional prior

convictions which the district court found were also predicate offenses to the

enhancement. See Shelton, 400 F.3d at 1330. Only two were needed for the career

offender enhancement.

      AFFIRMED.




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