                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS
                                                          FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                    JANUARY 16, 2008
                                No. 07-11641        THOMAS K. KAHN
                                                         CLERK
                             Non-Argument Calendar
                           ________________________

                       D. C. Docket No. 05-00044-CR-F-N

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                      versus

DARREN LAVON SMILEY,
                                                          Defendant-Appellant.
                           ________________________

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

                                 (January 16, 2008)

Before BIRCH, DUBINA and KRAVITCH, Circuit Judges.

PER CURIAM:

      Darren Smiley appeals his conviction and sentence for possession of a

firearm by a convicted felon. He raises the following issues: (1) whether the

evidence was sufficient to support his conviction; (2) whether the court properly
determined his status as a armed career criminal; (3) whether he possessed the

firearm in connection with a crime of violence; and (4) whether the court abused its

discretion by departing upward in his sentence. After a thorough review of the

record, we affirm.

                                        I. Background

       According to the testimony at trial viewed in the light most favorable to the

government, convenience store night employee Katherine Kersker was accosted by

a masked man while she took empty boxes to the storage unit behind the store at

about 3:15 am on October 14, 2004. The exterior of the building was well-lit, but

the inside of the storage unit was dark. Kersker could not see the assailant’s entire

face, as it was partly covered by a bandana, but could identify the man as Smiley

by his eyes.1 Smiley carried a gun, forced Kersker into the storage unit and

demanded she perform oral sex on him. He struck her in the head with the gun and

threatened her. He instructed her to remove her pants, but abandoned this idea

when she told him she had a “problem.” Smiley then took Kersker’s money,

locked her in the storage unit, and fled. Police discovered Smiley, his jacket, and

the gun in a nearby utilities substation a few hours later as the result of an

anonymous call. The bandana was not found until a second trip to the substation


       1
        Kersker also stated that she knew Smiley because he had visited the store many times until
he was barred from the store.

                                                2
after Smiley had been taken into custody.

      Smiley at first denied his participation, but later admitted that he had robbed

Kersker. Although he further admitted leaving the jacket and gun at the substation,

he denied pointing a gun at Kersker, or that he sexually assaulted her. Police did

not obtain fingerprint or DNA analysis of the gun or the bandana.

      An ATF investigation confirmed that the firearm had been manufactured in

Arkansas and was found in Alabama. In an interview with an ATF agent about

two weeks after his arrest, Smiley admitted his possession of the firearm and his

role in the robbery. The jury convicted Smiley.

      In preparing the presentence investigation report (“PSI”), the probation

officer determined that Smiley qualified as an armed career criminal under

U.S.S.G. § 4B1.4(a) and 18 U.S.C. § 924(e) based on his three prior drug

convictions. Under this provision, Smiley’s adjusted offense level was either 33 or

34, with the higher level applicable if Smiley used or possessed the firearm in

connection with a crime of violence. The probation officer cited the robbery and

sodomy as crimes of violence under § 4B1.4(b)(3)(A). Status as an armed career

criminal also increased Smiley’s criminal history category to VI, resulting in a

guidelines range of 262 to 327 months’ imprisonment.

      The government objected to the failure to recommend an upward departure



                                            3
due to the extreme nature of the offense, U.S.S.G. § 5K2.8. Smiley objected both

on his own and through his attorney. Smiley’s pro se objections related to whether

he was innocent of the offenses and whether his arrest warrant had been issued

properly. The counseled objections challenged the armed career criminal status

and the enhancement for possession of a firearm during a crime of violence. The

court overruled all of Smiley’s objections and agreed with the government that an

upward departure was warranted in light of Kersker’s age, the forced sodomy, the

threats and robbery, and the fact that Smiley locked her in the storage unit. As a

result, the court departed upward to a total adjusted offense level of 36, which

corresponded to a guidelines range of 324 to 405 months’ imprisonment. The

court sentenced Smiley to 360 months’ imprisonment, to run concurrently to any

sentence to be imposed in the pending state court cases for robbery and sodomy.

Smiley now appeals.

                                         II. Discussion 2


       2
          Smiley also reasserts the pro se objections to the PSI that he raised at sentencing. To the
extent that Smiley challenges his convictions, the court properly concluded that it would not
consider untimely motions to suppress or allegations of illegal detention at the sentencing phase.
Under Fed. R. Crim. P. 12(b), motions to suppress must be made prior to trial, and the failure to do
so constitutes waiver of the objection. Fed. R. Crim. P. 12(b)(3)(C), (e). Although the court may
grant relief from the waiver upon a showing of good cause, Fed. R. Crim. P. 12(e), Smiley does not
argue that he has established good cause. To the extent that Smiley argued ineffective assistance
of counsel, that issue is not proper for consideration on direct appeal where, as here, the record is
not sufficiently developed. See United States v. Verbitskaya, 406 F.3d 1324, 1337 (11th Cir. 2005).
To the extent that Smiley challenged his sentence, the court properly determined Smiley’s sentence
for the reasons discussed below.

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      We review “de novo the legal question of whether the record contains

sufficient evidence to support a guilty verdict [and] . . . view the evidence in the

light most favorable to the government [,] ... resolv[ing] all reasonable inferences

and credibility evaluations in favor of the jury’s verdict.” United States v.

Robertson, 493 F.3d 1322, 1329 (11th Cir. 2007) (internal quotation marks and

citations omitted). We review the district court’s application of the sentencing

guidelines de novo and reviews its factual findings only for clear error. United

States v. Crawford, 407 F.3d 1174, 1177 (11th Cir. 2005). Constitutional

challenges to a sentence are also reviewed de novo. United States v. Cantellano,

430 F.3d 1142, 1144 (11th Cir. 2005). We review departures from the Sentencing

Guidelines under the abuse of discretion standard, giving the district court’s

determination “substantial deference.” United States v. Melvin, 187 F.3d 1316,

1320 (11th Cir. 1999); see also Gall v. United States, 128 S.Ct. 586 (2007); Koon

v. United States, 518 U.S. 81, 96-100, 116 S.Ct. 2035, 2046-47, 135 L.Ed.2d 392

(1996).

             1. Sufficiency of the Evidence

      To establish possession of a firearm by a felon under 18 U.S.C. § 922(g)(1),

the government must prove that “‘the defendant was (1) in knowing possession of

a firearm, (2) a convicted felon, and (3) that the firearm affected interstate



                                           5
commerce.’” United States v. Glover, 431 F.3d 744, 748 (11th Cir. 2005) (quoting

United States v. Hall, 77 F.3d 398, 402 n.4 (11th Cir. 1996)).

      With respect to the second and third elements, the government submitted

certified copies of the prior convictions, which was sufficient to establish that

Smiley was a convicted felon. And an ATF agent testified that the firearm was

manufactured in Arkansas and found in Alabama, which established the interstate

nexus. United States v. Scott, 263 F.3d 1270, 1274 (11th Cir. 2001). Thus, the

only issue is whether there was sufficient evidence to establish Smiley possessed

the firearm.

      “Possession, in the context of § 922(g)(1), requires that the defendant

knowingly possess the firearm, and may be proven either by showing that the

defendant actually possessed the firearm, or by showing that he constructively

possessed the firearm.” United States v. Gonzalez, 71 F.3d 819, 834 (11th Cir.

1996) (citation omitted). “[F]or a person to have constructive possession over a

firearm, the person must have both ‘the intent and the power to exercise dominion

and control over the [firearm].’” Id. (citation omitted).

      Here, Smiley admitted that the gun found on the jacket at the substation was

his. He also admitted that he had the gun in his hand when he robbed Kersker.

Kersker repeatedly stated that she had no doubt the assailant was Smiley. Viewing



                                           6
this evidence in the light most favorable to the government, there was sufficient

evidence to support the conviction.

             2. Armed Career Criminal Status

      Smiley argues that his prior convictions did not qualify as predicate offenses

under 18 U.S.C. § 924(e). He urges this court to hold this provision

unconstitutional and he contends this provision is cruel and unusual punishment.

      Section 924(e) - the armed career criminal act (“ACCA”) - provides, “In the

case of a person who violates section 922(g) . . . and has three previous convictions

by any court . . . for a . . . serious drug offense . . . committed on occasions

different from one another, such person shall be . . . imprisoned not less than

fifteen years.” 18 U.S.C. § 924(e). In determining whether a particular offense is a

“serious drug offense” under the ACCA, sentencing judges adopt a categorical

approach and look only to the statutory definition of the crime charged, rather than

the actual facts of the individual’s prior conviction. 18 U.S.C. § 924(e)(2)(A);

Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 2159-60, 109

L.Ed.2d 607 (1990). The definition of a qualifying state offense under the ACCA

is a matter of federal law. Id. at 590-91.

      A “serious drug offense” means “an offense under State law, involving

manufacturing, distributing, or possessing with intent to manufacture or distribute,



                                             7
a controlled substance ... for which a maximum term of imprisonment of ten years

or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii); see also U.S.S.G.

§ 4B1.4, comment (n.1). Smiley had been convicted of three counts of unlawful

distribution of a controlled substance under Ala. Code § 13A-12-211, a Class B

felony punishable by not more than twenty years.3 Ala. Code § 13A-5-6. Thus,

Smiley’s prior convictions meet the definition of a serious drug offense.

       To the extent that Smiley argues the court should have considered the

circumstances of his prior offenses, that argument fails. As noted above, “a district

court only may 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).

When the face of the judgment is unambiguous, the district court should not

inquire further to determine the nature of the conviction. See id.; see also Taylor,

495 U.S. at 602. Here, Smiley’s offenses satisfied the definition of a serious drug

offense, and the statute was not ambiguous. Thus, the court was not permitted to

look at the circumstances of the prior convictions.



       3
          Enhancement under the ACCA requires three temporally distinct crimes, but convictions
need not be obtained on separate occasions. United States v. Jackson, 57 F.3d 1012, 1018 (11th Cir.
1995). “[S]o long as predicate crimes are successive rather than simultaneous, they constitute
separate criminal episodes for purposes of the ACCA.” United States v. Pope, 132 F.3d 684, 692
(11th Cir. 1998). Here, Smiley’s prior offenses occurred on different days.

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      Finally, there is no merit to Smiley’s claim that the enhanced sentence

constitutes cruel and unusual punishment. “The Eighth Amendment, which forbids

cruel and unusual punishments, contains a narrow proportionality principle that

applies to noncapital sentences.” Ewing v. California, 538 U.S. 11, 20, 123 S.Ct.

1179, 1185, 155 L.Ed.2d 108 (2003) (quotations omitted); United States v. Brant,

62 F.3d 367, 368 (11th Cir.1995). A reviewing court must make a threshold

determination that the sentence imposed is grossly disproportionate to the offense

committed and, if it is grossly disproportionate, the court must then consider the

sentences imposed on others convicted in the same jurisdiction and the sentences

imposed for commission of the same crime in other jurisdictions. Brant, 62 F.3d at

368. Outside the context of capital punishment, successful challenges to the

proportionality of sentences are exceedingly rare. United States v. Raad, 406 F.3d

1322, 1323 (11th Cir. 2005). This court has held that, “[i]n general, a sentence

within the limits imposed by statute is neither excessive nor cruel and unusual

under the Eighth Amendment.” United States v. Moriarty, 429 F.3d 1012, 1024

(11th Cir. 2005) (quotation omitted); accord United States v. Johnson, 451 F.3d

1239, 1243-44 (11th Cir.), cert denied, 127 S.Ct. 462 (2006).

      Here, Smiley cannot show that his sentence is disproportionate. See United

States v. Reynolds, 215 F.3d 1210, 1214 (11th Cir. 2000) (rejecting argument that



                                          9
application of ACCA constituted cruel and unusual punishment where defendant’s

predicate offenses included three prior drug convictions, robbery, and battery).

Moreover, the court’s decision to impose an upward departure shows that it

implicitly determined that the sentence was not disproportionate to the offenses.

              3. Use and Possession of the Firearm, U.S.S.G. § 4B1.4(b)(3)(A)

       Smiley next argues that he had not been convicted of a crime of violence at

the time he was sentenced for possession of a firearm, and therefore the court erred

by enhancing his sentence under § 4B1.4(b)(3)(A).

       A district court’s determination that a firearm was possessed “in connection

with” another felony offense is a factual one. See United States v. Whitfield, 50

F.3d 947, 949 & n.8 (11th Cir. 1995) (addressing the “in connection with” phrase

in U.S.S.G. § 2K2.1(b)(5)).

       Under U.S.S.G. § 4B1.4(b), the offense level for an armed career criminal is,

relevant to this appeal, the greatest of: the applicable offense level for the offense

of conviction, 34 if the defendant possessed a firearm in connection with a crime of

violence as defined in § 4B1.2(a), or 33 otherwise. U.S.S.G. § 4B1.4(b).

       Here, the court determined that the applicable offense level was 30 under

§ 2A3.1.4 Thus, under the ACCA, which requires the court to apply the greatest


       4
           See United States v. Williams, 431 F.3d 767, 768 n.1 (11th Cir. 2005) (discussing the
cross reference provision in § 2K2.1, which instructs the court to apply § 2X1.1 if the defendant

                                               10
offense level, the minimum offense level Smiley faced was 33 under

§ 4B1.4(b)(3)(B). The question, however, is whether Smiley possessed a firearm

in connection to a crime of violence such that his offense level should have been

34 under § 4B1.4(b)(3)(A).

        Section 4B1.2(a) defines crime of violence as “any offense under federal or

state law, punishable by imprisonment for a term exceeding on year, that – (1) has

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

person of another, or (2) . . .otherwise involves conduct that presents a serious

potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a). As the

commentary explains, crime of violence includes robbery and forcible sex

offenses. U.S.S.G. § 4B1.2, comment. (n.1).

        This court has held that “§ 4B1.4(b)(3)(A) applies even if the defendant was

not actually convicted of the crime of violence in connection with which he

possessed the firearm. Instead, the government need only prove that a crime of

violence was committed in connection with the firearm possession, and that proof

can be by a preponderance of the evidence.” United States v. Mellerson, 145 F.3d

1255, 1258 (11th Cir. 1998).


used or possessed any firearm in connection with the commission of another offense and the
resulting base level is higher than it would otherwise be, U.S.S.G. § 2K2.1(c)(1), and noting that
§ 2X1.1 in turn instructs the court to use the offense level that is the same as the underlying offense).
The underlying offense, in this case, was sexual assault, § 2A3.1.

                                                   11
      Here, Kersker testified that Smiley, holding a gun, robbed and forced her to

engage in oral sex. In his own statement to police, Smiley admitted robbing

Kersker and stated that he had the gun at his side at the time. This evidence was

sufficient to establish, by a preponderance of the evidence, that Smiley committed

a crime of violence while in possession of the firearm. See United States v.

Young, 115 F.3d 834, 838 (11th Cir. 1997) (applying § 4B1.4(b)(3)(A) and

concluding that Young possessed the firearm in connection with a crime of

violence when he obtained the firearm during a burglary); United States v. Gainey,

111 F.3d 834, 837 (11th Cir. 1997) (holding that firearm was used “in connection

with” the defendant’s heroin possession because the defendant had the heroin

around his neck, and had placed the firearm in his pants pocket such that the

weapon was readily accessible to him if he needed its protection).

             4. Upward Departure

      Smiley further argues that the court erred by applying an upward departure

because he had not been convicted of robbery or sodomy, and the alleged sodomy

and robbery did not constitute extreme, cruel, or heinous acts to support the

departure given that the offense did not last very long.

      A district court may depart upward from the Guidelines if it determines

“‘there exists an aggravating or mitigating circumstance of a kind or to a degree,



                                          12
not adequately taken into consideration by the Sentencing Commission in

formulating the guidelines that should result in a sentence different from that

described.’” Melvin, 187 F.3d at 1320 (citation omitted). The extent of a district

court’s departure from the Guidelines must be reasonable and is evaluated in light

of the factors to be considered in imposing the sentence and the reasons the district

court provided for departing. Id. at 1322-23. “Among the factors a sentencing

court must consider are the nature and circumstances of the offense, and the need

for the sentence to reflect the seriousness of the offense, promote respect for the

law, and to provide just punishment for the offense.” United States v. Blas, 360

F.3d 1268, 1273-74 (11th Cir. 2004).

      Under U.S.S.G. § 5K2.8, “[i]f the defendant’s conduct was unusually

heinous, cruel, brutal, or degrading to the victim, the court may increase the

sentence above the guideline range to reflect the nature of the conduct.” U.S.S.G.

§ 5K2.8. This court has held that forced oral sex may be especially degrading

under § 5K2.8 and that this factor is not taken into account in determining the base

offense level under § 2A3.1. United States v. Lewis, 115 F.3d 1531, 1539 (11th

Cir. 1997).

      Here, the court did not abuse its discretion. Smiley forced Kersker to engage

in oral sex and he was prepared to rape her. He threatened her, struck her with his



                                          13
gun, and locked her in the storage closet while he escaped. Based on these actions,

the court’s decision that a two-level upward departure was warranted is entitled to

deference.

      III. Conclusion

      For the foregoing reasons, we AFFIRM Smiley’s conviction and sentence.




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