                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                JUNE 23, 2005
                               No. 04-11598                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                     D. C. Docket No. 03-14052-CR-KMM

UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                     versus

ANTHONY CHARLES STEPHENS,
                                                          Defendant-Appellant.


                         ________________________

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

                               (June 23, 2005)




Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.

PER CURIAM:

     A jury convicted appellant of possession with intent to distribute 50 grams
or more of cocaine base (“crack cocaine”), in violation of 21 U.S.C. § 841(a)(1),

and the district court sentenced him to prison for 121 months.

      Appellant’s conviction was the result of an undercover investigation by the

Florida Department of Law Enforcement, the Drug Enforcement Administration

(“DEA”), and the sheriff’s offices of two Florida counties, Highlands County and

St. Lucie County. On June 5, 2003, in Avon Park, Florida, appellant sold three

crack cocaine cookies weighing 62.7 grams to a confidential source for $2300.

Several law enforcement officers witnessed the transaction. The officers did not

arrest appellant at that time; rather, they set up a surveillance in an attempt to

identify the source his drugs. The attempt failed, and on September 4, 2003, a

Highlands County Sheriff’s Office investigator and DEA agents arrested appellant

for the June 5 trafficking episode. After receiving his Miranda warnings and

acknowledging that he understood his rights, appellant stated that he had sold

cocaine in the past but had been out of the crack cocaine business for a year—after

returning from Jamaica and learning that his friends, Markyrei McCray, Ezzard

Dixon, and Kenneth Jenkins, had been arrested for selling drugs. He said that after

learning about their arrests, he limited his drug trafficking to marijuana.

      In this appeal, appellant challenges his conviction and his sentence. He asks

that we vacate his conviction and remand the case for a new trial on four grounds,



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which we set out and dispose of in order.

       1) The district court erred in denying his motion to suppress his post-arrest

statements that he knew Markyrie McCray and Ezzard Dixon (who following their

arrests implicated appellant as “Jamaican Brother,” their crack cocaine supplier)

because he was not informed of the offense for which he was being arrested and

thus did not intelligently waive his right to remain silent. We find no merit in this

ground because the record is replete with evidence that appellant was advised of

his Miranda rights, understood them, and decided to talk. He admits this but says

that his statements were involuntary because he was not informed of the specific

date of the offense for which he was arrested. See Colorado v. Spring, 479 U.S.

564, 107 S. Ct. 851 (1987).

      2) The district court abused its discretion in admitting appellant’s post-arrest

statements into evidence because their only relevance was to show that he was a

person of bad character and had a propensity to engage in criminal activity or,

alternatively, because the statements’ probative value was substantially outweighed

by their undue prejudice. This ground is frivolous. In pleading not guilty and

standing trial, appellant place his intent to traffick crack cocaine in issue. The

evidence he challenges was part of the prosecution’s proof that he intended to sell

crack cocaine on the occasion described in the indictment .



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      3) The district court committed plain error in not requiring the Government

to produce as witnesses McCray, Dixon, and Kenneth Jenkins (who informed law

enforcement that appellant was a crack supplier), and “Chill” and “TK,” the two

confidential informants involved in the June 5, 2003 drug transaction. He contends

that the Sixth Amendment right of confrontation obligated the court to ensure the

witnesses’ presence. Appellant failed to object to the non-production of these

witnesses; hence, we consider whether the court’s refusal to act constituted plain

error. Appellant cites no authority for such obligation, and we have been unable to

find any. No plain error occurred here.

      4) The district court abused its discretion in admitting into evidence the

audiotape of the June 5, 2003 transaction and a transcript of a portion of the tape.

Appellant did not object to the admission of the tape into evidence because he

thought it contained exculpatory evidence. The court properly instructed the jury

as to their use of the tape and transcript. We find no abuse of discretion here.

      In sum, we find no cause for disturbing appellant’s conviction. We therefore

turn to the validity of his sentence.

      Appellant challenges his sentence on the ground that Unites States v.

Booker, 543 U. S. ____, 125 S. Ct. 738 (2005), which holds that the Sixth

Amendment precludes the enhancement of a sentence under a mandatory



                                           4
guidelines system, e.g., the federal guidelines sentencing system, based on facts not

found by the jury beyond a reasonable doubt or admitted by the defendant.

Because appellant did not present his Sixth Amendment objection to the district

court, we examine his challenge for plain error.

      No Sixth Amendment violation, and thus no plain error, occurred in this case

because appellant was sentenced under U.S.S.G. § 2D1.1(a)(3) which provides a

base offense level of 32 where the amount of crack cocaine involved in the offense

is between 50 and 150 grams. The jury found that appellant’s offense involved

more than 50 grams or more of the drug; no Sixth Amendment violation occurred

because in fashioning appellant’s sentence, the court did not enhance the offense

level based on extra-verdict facts.

      Appellant does not argue in his brief that the court erred in treating the

Sentencing Guidelines as mandatory. We therefore do not consider the point. We

do note that the statute, 21 U.S.C. § 841(b)(1)(A), prescribing the penalty for

appellant’s offense imposes a mandatory minimum term of imprisonment of 120

months, with a maximum term of life. Appellant’s sentence exceeds this

mandatory minimum by one month. Were we to vacate his sentence and remand

the case for resentencing under a sentencing regime that treats the Guidelines as

advisory, as Booker requires, appellant could receive a sentence considerably in



                                          5
excess of 121 months’ imprisonment. Given this possibility, we choose not to

disturb appellant’s sentence.

      AFFIRMED.




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