                                                           [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                                                                   FILED
                           ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                August 25, 2005
                                 No. 04-14379
                                                              THOMAS K. KAHN
                             Non-Argument Calendar                CLERK
                           ________________________

                       D. C. Docket No. 03-21013-CR-PCH

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

      versus

GREGORY L. JAMES,

                                                              Defendant-Appellant.

                           ________________________

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

                                 (August 25, 2005)

Before BIRCH, CARNES and MARCUS, Circuit Judges.

PER CURIAM:

      Gregory L. James, a federal prisoner convicted of drug- and firearm-related

offenses, appeals his convictions and sentence. Because the district court did not
commit reversible error in its admission of evidence or its sentencing of James, we

AFFIRM.

                                I. BACKGROUND

      In December 2003, a federal grand jury indicted James, along with

codefendant Kenneth Head, for conspiracy to possess with intent to distribute five

kilograms or more of cocaine, in violation of 21 U.S.C. § 846, carrying a firearm

during the commission of a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A), and possession of a firearm by a convicted felon, in violation of 18

U.S.C. § 922(g)(1). James pled not guilty on all charges. Following the entry of

his plea, in preparation for trial, the government notified James of its intent to

introduce evidence pursuant to Fed. R. Evid. 404(b), namely, James’s 1988

conviction for trafficking cocaine and carrying a concealed firearm. The

government also filed notice pursuant to 21 U.S.C. § 851(a)(1) that it would seek

an enhanced statutory punishment for James based on his 1988 conviction and a

1995 conviction for cocaine possession.

      At trial, the government presented evidence that indicated James was part of

a conspiracy to import cocaine from Colombia. According to the evidence

presented, codefendant Head had met Osvaldo Ortega, who had connections with

Colombian drug suppliers, while the two were in prison. After their release, Head,



                                           2
who had previously worked for James in the drug trafficking business, introduced

Ortega to James. Following their introduction, Ortega began to supply James with

cocaine on an intermittent basis.

      In August 2003, Ortega telephoned James to notify him that he had a 200-

kilogram shipment of cocaine available for purchase. After meeting with Ortega at

a restaurant in Miami and ascertaining the quality of the cocaine, James agreed to

buy the supply. Accordingly, over the course of several days, Ortega funneled

nearly thirty-five kilograms of cocaine to either James or Head. On 5 September

2003, however, Ortega was stopped by Florida law enforcement officers, who

discovered that he was in possession of twenty-five kilograms of cocaine. A

search of Ortega’s house revealed an additional 122 kilograms of cocaine.

      Following his arrest, Ortega was questioned about the identity of the people

he supplied. He acknowledged that James was one of his buyers and agreed to

cooperate with law enforcement officials to facilitate James’s arrest. During his

interrogation, Ortega received several telephone calls, including two from James

and two from Head. Subsequently, Ortega arranged for a controlled drug

transaction with James. After the sale was made, Florida law enforcement officials

stopped James after he committed a traffic violation. As he approached James’s

vehicle, the arresting police officer smelled marijuana and saw what appeared to be



                                          3
a bag of marijuana sticking out of a sun-visor on the driver’s side of the vehicle.

The police asked James to step out of the vehicle, and a subsequent search of

James’s car revealed a backpack containing $129,020 sitting on the car’s

floorboard, a loaded semi-automatic pistol in the map pocket behind the front

passenger’s seat, several rounds of ammunition, and marijuana.

      At the start of the trial, James’s counsel reserved his opening statement, and

therefore did not present any theory of defense prior to the start of the

government’s case. During the cross-examination of some of the government’s

witnesses, however, James’s counsel questioned whether the witnesses ever saw

James with cocaine, the money, or the gun. In addition, prior to trial, James had

submitted an affidavit from Steve Martin, who claimed that he owned the

discovered pistol and had accidently left it in James’s car. Cross-examination of

Martin at trial revealed, however, that he purchased the gun at James’s direction

and was told by James to lie about the gun. Citing James’s cross-examination

questions and Martin’s affidavit, the government contended that James had put into

question his knowledge and intent to commit the crimes alleged. Accordingly, to

rebut this purported defense theory, the government sought to introduce pursuant

to Fed. R. Evid. 404(b) evidence of James’s 1988 conviction for cocaine

trafficking and carrying a concealed weapon. Over James’s objection, the district



                                           4
court allowed into evidence a certified copy of the conviction. After allowing the

conviction into evidence, however, the district court gave a limiting instruction that

the evidence could be considered only to determine whether James had the

requisite knowledge or intent to commit the crimes alleged or whether the acts

were committed by accident or mistake. In addition, the government attempted to

introduce pursuant to Rule 404(b) testimony from a drug user who formerly

purchased drugs from James to show James’s intent and knowledge of the drug

trade. The district court ruled this testimony was inadmissible because its potential

prejudicial effect outweighed its probative value.

      A jury found James guilty of all three counts in the indictment. At the first

of three sentencing hearings, the district court noted that, according to his

presentence investigation report (“PSI”), James’s conduct and criminal history

qualified him for a sentence of life imprisonment. Because James consequently

wanted to challenge the district court’s criminal history findings on his 1995

conviction, the district court continued the sentencing until James could obtain a

copy of the sentencing transcript from the 1995 conviction. At the second

sentencing hearing, in addition to arguing that the 1995 conviction was a

misdemeanor charge and not a felony, James asserted that all the enhancements

proposed in his sentence violated the Sixth Amendment pursuant to the Supreme



                                           5
Court’s decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).

The court ruled that the 1995 conviction was a felony conviction, and therefore

James had the two prior felony convictions to qualify for the enhanced statutory

penalty. The court reserved, however, its decision on his Blakely violation claim.

Finally, at a third sentencing hearing, the district court overruled James’s Blakely

objection and sentenced James to life imprisonment. In making its determination,

the district court commented: “I will impose a sentence . . . with regard to the

guidelines. The guidelines require a life sentence.” R7 at 10.1

       On appeal, James argues that he was improperly convicted because the

district court erred when it admitted, pursuant to Fed. R. Evid. 404(b), evidence of

James’s 1988 conviction for trafficking in cocaine and carrying a concealed

firearm. James also argues that, in light of United States v. Booker, 543 U.S. ___,

125 S. Ct. 738 (2005), the district court erred by sentencing him to life

imprisonment. We address each argument in turn.

                                     II. DISCUSSION

A. Rule 404(b) Evidence

       We review a district court’s decision to admit evidence under Fed. R. Evid.



       1
         Contrary to these comments, however, at the first sentencing hearing, the district court
noted that a life sentence for James was mandated by statute under 21 U.S.C. §§ 841(b)(1)(A) and
851(d) and therefore was not controlled by the Sentencing Guidelines. See R5 at 2.

                                               6
404(b) for an abuse of discretion. United States v. Miller, 959 F.2d 1535, 1538

(11th Cir. 1992) (en banc). “An evidentiary ruling will stand unless the

complaining party has shown a ‘substantial prejudicial effect.’” United States v.

Breitweiser, 357 F.3d 1249, 1254 (11th Cir.) (citations and quotations omitted),

cert. denied, 541 U.S. 1091, 124 S. Ct. 2829 (2004).

      Rule 404(b) provides, in relevant part, that:

      Evidence of other crimes, wrongs, or acts is not admissible to prove
      the character of a person in order to show action in conformity
      therewith. It may, however, be admissible for other purposes, such as
      proof of motive, opportunity, intent, preparation, plan, knowledge,
      identity, or absence of mistake or accident . . . .

F ED. R. E VID. 404(b). We have developed a three-part test to determine whether

evidence is admissible under Rule 404(b): (1) “the evidence must be relevant to an

issue other than the defendant’s character”; (2) “as part of the relevance analysis,

there must be sufficient proof so that a jury could find that the defendant

committed the extrinsic act”; and (3) “the evidence must possess probative value

that is not substantially outweighed by its undue prejudice.” Breitweiser, 357 F.3d

at 1254; see also Miller, 959 F.2d at 1538.

      1. Relevance to an Issue Other Than Character

      According to Rule 404(b), evidence that is relevant to a defendant’s intent,

knowledge, and absence of mistake constitutes evidence that proves an issue other



                                           7
than character. F ED. R. E VID. 404(b). Such evidence is admissible when intent,

knowledge, and absence of mistake are at issue in the case. See United States v.

Delgado, 56 F.3d 1357, 1365 (11th Cir. 1995). Because “[a] defendant who enters

a not guilty plea makes intent a material issue, . . . the government may meet this

burden with qualifying 404(b) evidence absent affirmative steps by the defendant

to remove intent as an issue.” Id.; accord United States v. Jernigan, 341 F.3d 1273,

1281 n.7 (11th Cir. 2003). Intent is also put at issue where the defendant advances

a “mere presence” defense because it forces “the government to prove his criminal

intent so as to negate any innocent explanation for his presence.” Delgado, 56 F.3d

at 1365; see also United States v. Diaz-Lizaraza, 981 F.2d 1216, 1225 (11th Cir.

1993) (finding intent at issue because of the defendant’s “non-participation”

defense).

      In this case, we hold that James put intent, knowledge, and absence of

mistake at issue in the case. By entering a plea of not guilty to the drug trafficking

and firearm possession charges, James forced the government to prove the

elements of the charged offenses, which included that he had the requisite intent.

See Delgado, 56 F.3d at 1365 (finding not guilty plea to drug trafficking

conspiracy charge put intent at issue). Moreover, by entering Martin’s affidavit

and advancing a defense theory based on mistake or mere participation, James put



                                           8
his intent and knowledge at issue. To prove the intent element and negate James’s

purported defense, the government presented evidence of a prior conviction for

drug trafficking and firearm possession, which we find was relevant in light of the

similarity between the extrinsic act and the charged offenses. See United States v.

Zapata, 139 F.3d 1355, 1358 (11th Cir. 1998) (per curiam) (finding evidence of

prior convictions was relevant to intent because “the[] convictions involved the

same state of mind at issue in the charged offenses”). Accordingly, we find that

the first prong of the three-part test was met because James put intent, knowledge,

and absence of mistake at issue, and the evidence from his 1988 conviction was

relevant to prove these issues.2

       2. Proof That Defendant Committed the Extrinsic Act

       We have held that the second prong of the three-part test is satisfied when

the extrinsic evidence introduced against a defendant was a document showing his

conviction. Zapata, 139 F.3d at 1358; see also United States v. Calderon, 127 F.3d


       2
         James, in a memorandum citing United States v. Matthews, 411 F.3d 1210 (11th Cir. 2005)
as supplemental authority, argues that Matthews compels a different result. In Matthews, we
concluded that Rule 404(b) evidence is not “automatically” admissible whenever the defendant
pleads not guilty. See id. at 1226. Rather, such evidence is admissible when necessary to prove
intent. See id. at 1228 (concluding that a 1991 conviction was improperly admitted under Rule
404(b) because the government’s evidence negated any inference that the defendant lacked intent,
therefore rendering evidence of the prior conviction unnecessary except to prove an improper
character propensity). Unlike in Matthews, however, James’s defense theory, buttressed by Martin’s
affidavit, demonstrated that James could have committed the charged offenses without the requisite
intent. Because the evidence of his prior conviction was thus necessary to prove intent, Matthews
is not controlling.

                                                9
1314, 1332 (11th Cir. 1997) (“It is elementary that a conviction is sufficient proof

that [a defendant] committed the prior act.”). Because in this case the

government’s 404(b) evidence was a certified copy of the final judgment and

conviction order for James’s 1988 conviction, there was sufficient proof that James

committed the extrinsic act, and therefore the second prong of the three-part test

was satisfied.

      3. Probative Value Weighed Against Prejudice of the Extrinsic Act

      Determining whether the probative value of Rule 404(b) evidence is

substantially outweighed by its prejudicial impact “lies within the sound discretion

of the district judge and calls for a common sense assessment of all the

circumstances surrounding the extrinsic offense, including prosecutorial need,

overall similarity between the extrinsic act and the charged offense, as well as

temporal remoteness.” Jernigan, 341 F.3d at 1281-82 (quotations omitted). In

making this determination on the third prong of our Rule 404(b) test, we have

noted that “evidence of prior drug dealings . . . is highly probative of intent in later

charges of conspiracy and distribution of a controlled substance.” Diaz-Lizaraza,

981 F.2d at 1224. Similarly, we have stated that “the fact that [a defendant]

knowingly possessed a firearm in a car on a previous occasion makes it more likely

that he knowingly did so this time as well, and not because of accident or mistake.”



                                           10
Jernigan, 341 F.3d at 1282. In addition to these considerations, it is relevant

whether any potential prejudicial effect from the evidence was mitigated by the

judge’s limiting instructions to the jury. See Diaz-Lizaraza, 981 F.2d at 1225.

      Based on this precedent, the probative value of the evidence of James’s prior

conviction was not substantially outweighed by its undue prejudice. First, the

prosecutorial need for this evidence was high in light of James’s purported defense

theory and the entry of Martin’s affidavit. See Delgado, 56 F.3d at 1365 (noting

that the government has a “substantial burden” to prove intent where a defendant

pleads not guilty and offers a “mere presence” defense). Second, the charged

offenses and the extrinsic act were almost identical, as both involved trafficking in

cocaine and the possession of a firearm. Third, while the prior conviction was

from 1988, it was not on the facts of this case so temporally remote that its

prejudice substantially outweighed its probative value. See United States v.

Rubio-Gonzalez, 674 F.2d 1067, 1074-75 (5th Cir. 1982). Moreover, any

prejudicial effect by the admission of the conviction was mitigated by the district

court’s limiting instructions to the jury both at the time the evidence was admitted

and in the final charge to the jury. See Diaz-Lizaraza, 981 F.2d at 1225.

Accordingly, we conclude that the 1988 conviction satisfied the third prong of our

Rule 404(b) test because its probative value was not substantially outweighed by



                                          11
its likelihood for undue prejudice.

      Thus, in sum, James’s 1988 conviction for drug trafficking and firearm

possession met all three prongs for admission under Rule 404(b). Accordingly, the

district court did not abuse its discretion in admitting into evidence the prior

conviction.

B. Blakely/Booker Error

      We review a preserved Blakely/Booker objection de novo, but will reverse

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

(per curiam). The particular harmless error standard we apply, however, depends

upon whether the district court allegedly committed constitutional Booker error

because it enhanced a defendant’s sentence based on facts not found by a jury or

whether it committed statutory Booker error because it applied the Sentencing

Guidelines as mandatory rather than advisory. See United States v. Mathenia, 409

F.3d 1289, 1291 (11th Cir. 2005) (per curiam). Because we have previously

determined that a district court’s use of a prior conviction does not constitute

constitutional Booker error, see United States v. Shelton, 400 F.3d 1325, 1329

(11th Cir. 2005), we focus our on inquiry on the harmless error standard applied to

statutory Booker objections. According to this standard, a statutory error is

“harmless if, viewing the proceedings in their entirety, a court determines that the



                                           12
error did not affect the sentence, or had but very slight effect.” Mathenia, 409 F.3d

at 1292 (citations and quotations omitted). The government bears the burden to

show that any error was harmless. Id.

      In the instant case, while the district court committed statutory Booker error

at sentencing because it stated that it considered the Sentencing Guidelines to be

mandatory, we find that error was harmless. Under 21 U.S.C. § 846, a defendant

convicted of conspiracy to commit a drug trafficking offense “shall be subject to

the same penalties as those prescribed” in 21 U.S.C. § 841. Under § 841, a

defendant convicted of a drug trafficking violation after two or more prior

convictions for a felony drug offense “shall be sentenced to a mandatory term of

life imprisonment.” 21 U.S.C. § 841(b)(1). Because he had two prior felony

convictions, the district court sentenced James to life imprisonment for his

conviction for conspiracy to possess with intent to distribute cocaine. Accordingly,

although the district court stated that the Sentencing Guidelines mandated a life

sentence, this error did not affect James’s sentence because a life sentence was also

mandated by statute. Thus, the district court’s statutory Booker error was

harmless. See United States v. Raad, 406 F.3d 1322, 1323 n.1 (11th Cir. 2005)

(per curiam) (finding harmless Booker error where district court sentenced

defendant in accordance with mandatory minimum sentence statute); accord



                                          13
United States v. Wyatt, 128 Fed. Appx. 97, 98 (11th Cir. 2005) (per curiam).

                                III. CONCLUSION

      Based on the foregoing, and upon review of the parties’ briefs and the

record, we conclude that the district court did not err in admitting pursuant to Fed.

R. Evid. 404(b) evidence of James’s 1988 conviction to show intent, knowledge,

and absence of mistake. In addition, we conclude that the district court did not

commit reversible Booker error in sentencing James to life imprisonment for his

conviction for conspiracy to possess with intent to distribute cocaine, as mandated

by statute. Accordingly, James’s convictions and sentence are AFFIRMED.




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