                    Case: 11-13609         Date Filed: 08/15/2012   Page: 1 of 7

                                                                       [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-13609
                                        Non-Argument Calendar
                                      ________________________

                           D.C. Docket No. 1:10-cr-00008-WLS-TQL-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                Plaintiff-Appellee,

                                                 versus

RAMON DESHAWN BROWN,
a.k.a. Raymon D. Brown,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Georgia
                                 ________________________

                                           (August 15, 2012)

Before CARNES, WILSON and BLACK, Circuit Judges.

PER CURIAM:
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      Ramon D. Brown appeals his conviction and 360-month sentence for

possession of a firearm by a convicted felon, in violation of 18 U.S.C.

§§ 922(g)(1) and 924(e)(1). Brown raises three issues on appeal. We affirm

Brown’s conviction and sentence.

      First, Brown argues the district court erred by admitting Rule 404(b)

evidence. Brown does not contend that the evidence was inadmissible, only that

he failed to receive reasonable pre-trial notice from the prosecution. See Fed. R.

Evid. 404(b)(2). We review a district court’s evidentiary rulings, including a

ruling on Rule 404(b)’s notice requirement, for an abuse of discretion. United

States v. Bradley, 644 F.3d 1213, 1270 (11th Cir. 2011), cert. denied, (U.S. May

14, 2012) (No. 11-862); United States v. Carrasco, 381 F.3d 1237, 1240 (11th Cir.

2004). Determining the reasonableness of pre-trial notice requires consideration

of three factors: “(1) [w]hen the [g]overnment, through timely preparation for

trial, could have learned of the availability of the [evidence]; (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.” United States v.

Perez-Tosta, 36 F.3d 1552, 1562 (11th Cir. 1994). Prejudice to the defendant is

the most important of these factors.    Id. at 1562.




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      Here, Brown knew of the evidence prior to voir dire, Brown’s counsel

proffered it to the district court, and Brown objected to admitting the evidence.

However, Brown failed to request a continuance before the district court, or even

allege any prejudice from the timing of the prosecution’s notice. Because Brown

received reasonable pre-trial notice, the district court did not abuse its discretion

by admitting the evidence. See id. at 1560-63 & n.7. (finding notice minutes

before voir dire to be reasonable pre-trial notice).

      Second, Brown argues the evidence presented by the Government was

insufficient to support his conviction. “We review the sufficiency of the evidence

de novo, viewing the evidence in the light most favorable to the government and

accepting all reasonable inferences in favor of the verdict.” United States v. Tagg,

572 F.3d 1320, 1323 (11th Cir. 2009) (quotation omitted). Because Brown did not

move for a judgment of acquittal in the district court, “we may reverse [his]

conviction only to prevent a manifest miscarriage of justice,” which requires us to

find that “the evidence on a key element of the offense is so tenuous that a

conviction would be shocking.” Id. (quotation omitted).

      To establish a violation of 18 U.S.C. § 922(g)(1), the government must

prove three elements: (1) the defendant was a convicted felon, (2) the defendant

was in knowing possession of a firearm, and (3) the firearm was in or affecting

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interstate commerce. United States v. Beckles, 565 F.3d 832, 841 (11th Cir. 2009).

The government “need not prove actual possession in order to establish knowing

possession; it need only show constructive possession through direct or

circumstantial evidence.” Id. Constructive possession exists when the defendant

exercises “ownership, dominion, or control over the item” or has the power and

intent to exercise dominion or control. Id.

       Here, Brown stipulated to being a convicted felon. On the day of his arrest,

Brown fled from law enforcement while carrying a burgundy bag. During his

flight, Brown dropped the bag. Officers recovered the bag, finding a loaded gun

inside. Brown’s flight and subsequent abandonment of the bag demonstrate that

he knew the contents of the bag. Further, Heather Brown testified that she saw

Brown two weeks prior to his arrest holding a gun “similar” to the one found in

the burgundy bag. Finally, ATF agents testified that the gun functioned, and had

moved in interstate commerce. Because ample evidence supports each element of

the charged offense, Brown’s conviction was not a manifest miscarriage of justice.

       Finally, Brown argues the sentencing court erred by imposing an upward

departure1 pursuant to U.S.S.G. § 4A1.3, and by failing to consider all relevant 18


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         The record is unclear whether the district court departed or varied from the advisory
guideline range. When uncertainty exists as to whether the district court applied a departure or
variance, this Court considers: (1) whether the district court referenced a particular guideline

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U.S.C. § 3553(a) factors. We review sentencing decisions for abuse of discretion.

United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009). A sentence must be

both procedurally and substantively reasonable. Id. at 1237. Procedural

reasonableness means that a district court correctly applied the guidelines,

considered the § 3553(a) factors, relied on facts that are not clearly erroneous, and

adequately explained the chosen sentence. See id. A district court need not

discuss each § 3553(a) factor individually. United States v. Sarras, 575 F.3d 1191,

1219 (11th Cir. 2009). Rather, the court need only acknowledge that it has

considered the defendant’s arguments and the § 3553(a) factors. Id. A sentence is

substantively unreasonable “if it does not achieve the purposes of sentencing

stated in § 3553(a).” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)

(quotation omitted). The party challenging the sentence carries the burden of

establishing unreasonableness. United States v. McBride, 511 F.3d 1293, 1297

(11th Cir. 2007).

       Under U.S.S.G. § 4A1.3, a district court may depart from the sentencing

range “[i]f reliable information indicates that the defendant’s criminal history



departure provision, and (2) whether the court based its decision on a belief that the guidelines
were not adequate. United States v. Kapordelis, 569 F.3d 1291, 1316 (11th Cir. 2009). Because
the district court cited U.S.S.G. § 4A1.3(a), and its decision was consistent with that guideline
provision, we conclude that the district court imposed an upward departure. See Kapordelis, 569
F.3d at 1316.

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category substantially under-represents the seriousness of the defendant’s criminal

history or the likelihood that the defendant will commit other crimes.” U.S.S.G.

§ 4A1.3(a)(1). “[T]he nature of the prior offenses rather than simply their number

is often more indicative of the seriousness of the defendant’s criminal record.” Id.

§ 4A1.3 cmt. n. 2(B). When a defendant is already in criminal history category

VI, the court may make an upward departure by moving incrementally to a higher

offense level that it finds appropriate. Id. § 4A1.3(a)(4)(B). A court need not

explicitly discuss its reasons for bypassing each offense level. See United States v.

Dixon, 71 F.3d 380, 383 (11th Cir. 1995). “Rather, the magnitude of these upward

departures will be reviewed for reasonableness, based on findings by the district

court as to (1) why the extent and nature of the defendant’s criminal history

warrants an upward departure from category VI, and (2) why the sentencing range

within which the defendant is sentenced is appropriate to the case.” Id. The

reasonableness of a departure must be assessed in light of the § 3553(a) factors

and the reasons given by the district court for the departure. United States v.

Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005).

      Here, the district court did not abuse its discretion by imposing an upward

departure because the record supports its finding that Brown’s criminal history

category significantly understated both the seriousness of his criminal history and

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the likelihood that he will commit other crimes. See U.S.S.G. § 4A1.3(a)(1).

Brown has committed six armed robberies, each by using a firearm. Brown has

been convicted of causing a riot in a penal institution, and of exposing himself to a

female correctional officer. The district court properly considered the seriousness

of Brown’s criminal history and reasonably concluded that a four-level departure

was necessary.

      In addition, the district court expressly stated that Brown’s 360-month

sentence complied with the § 3553(a) factors, and it extensively addressed several

of those factors in detail. The district court examined the nature and

circumstances of the offense, noting that when Brown was apprehended, he was

wearing all black and had been carrying a black ski mask, black gloves, and a

loaded firearm. The district court observed that these facts indicated Brown was

engaged in or attempting to engage in another armed robbery. The district court

further noted that Brown’s criminal history indicated he had “zero respect” for the

law. Accordingly, the district court did not abuse its discretion by imposing the

upward departure, and Brown’s resulting 360 month-sentence was reasonable.

      AFFIRMED.




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