                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 07-2625
                                 ________________

United States of America,                  *
                                           *
             Appellee,                     *
                                           * Appeal from the United States
      v.                                   * District Court for the
                                           * Southern District of Iowa.
Mark Anthony Gaddy, also known as          *
Mark Gaddy,                                *
                                           *
             Appellant.                    *

                                 ________________

                            Submitted: March 11, 2008
                                Filed: July 14, 2008
                               ________________

Before RILEY, GRUENDER and SHEPHERD, Circuit Judges.
                        ________________

GRUENDER, Circuit Judge.

       Mark Anthony Gaddy was convicted after a jury trial of one count of
conspiracy to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B) and 846, one count of possession with intent to distribute five or more grams
of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and four counts of
use of a communication facility in a drug felony offense, in violation of 21 U.S.C. §
843(b). He appeals the district court’s1 decision to admit his confession and three
prior convictions into evidence, as well as his sentence. We affirm.

I.    BACKGROUND

      During the course of a narcotics investigation in February 2005, Iowa law
enforcement officers, working with agents of the Drug Enforcement Administration,
determined that Gaddy was purchasing cocaine and cocaine base from a drug dealer.
They intercepted telephone calls in which Gaddy discussed drug transactions. On
August 18, 2005, between 5:30 and 6:00 a.m., approximately twelve officers from the
Des Moines Metro Special Tactics and Response (“STAR”) team entered Gaddy’s
home to execute search and arrest warrants. STAR officers used bright lights, swift
entry and loud directions to confuse and disorient residents in order to ensure safe
entry. Officers found Gaddy and two other individuals in the home and restrained
them with flexible handcuffs.

      After Gaddy’s home was secured, the STAR team departed around 6:20 a.m.
Five officers, including Iowa Division of Narcotics Enforcement Special Agent Scott
Peasley and Deputy United States Marshall Mike Powell, conducted the search and
questioned the occupants. Deputy Powell testified that all three occupants were awake
and calm, although it appeared that Gaddy had been recently awakened.

      Agent Peasley administered Miranda2 warnings to Gaddy at 6:22 a.m. Agent
Peasley wrote Gaddy’s answers on the Miranda waiver form because Gaddy’s hands
were restrained behind his back. The waiver reflected that Gaddy understood and



      1
      The Honorable James E. Gritzner, United Stated District Judge for the
Southern District of Iowa.
      2
       Miranda v. Arizona, 384 U.S. 436 (1966).

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waived his Miranda rights and was willing to make a statement. Agent Peasley then
administered warnings to the other occupants, finishing at 6:34 a.m.

       At approximately 7:00 a.m., Agent Peasley moved Gaddy to a bedroom and
seated him on the floor, while Agent Peasley sat on a weight-lifting bench above him.
Agent Peasley asked if Gaddy wanted to make a statement, and Gaddy said he did.
Agent Peasley removed the flexible handcuffs and restrained Gaddy’s hands in front
of him using standard handcuffs. Deputy Powell occasionally entered the room but
did not ask questions. During the interview, Gaddy admitted to his involvement in the
distribution of cocaine. He stated that he would purchase $50 rocks of crack cocaine
two or three times a month and occasionally resell the $50 rocks to support his habit.
The interview lasted approximately fifteen minutes, and Agent Peasley testified that
Gaddy appeared awake and coherent and did not appear to be under the influence of
drugs.

      A grand jury returned an eight-count indictment, charging Gaddy with one
count of conspiracy to distribute fifty or more grams of cocaine base, cocaine, and
marijuana; one count of possession with intent to distribute five or more grams of
cocaine base; and six counts of use of a communication facility in a drug felony
offense.

       Prior to trial, Gaddy moved to suppress his confession, arguing that it was not
the product of a voluntary waiver of his Miranda rights. Gaddy testified that he had
not slept the night before the arrest. He claimed that by 8:30 a.m. the previous day he
had taken two Darvocets, a type of pain reliever, and 1600 milligrams of Skelaxin, a
muscle relaxer. He worked on a car motor until 2:30 a.m. Over the next hour, Gaddy
took two or three shots of gin, two Darvocets and two Skelaxins. He also smoked a
Mac blunt, a mix of marijuana and cocaine. He argued that the alcohol, drugs and
sleeplessness precluded a finding that he waived his rights voluntarily. Gaddy also
argued that the STAR team’s entrance disoriented him, that the time between the

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entrance and the confession was short, and that Peasley’s position on a weight-lifting
bench was intimidating, all of which created a coercive atmosphere. The district court
denied Gaddy’s motion to suppress.

       During the jury trial, the Government sought to introduce three of Gaddy’s prior
convictions. Gaddy was convicted in 1995 for possession with intent to deliver five
grams or less of cocaine base, in 1996 for possession with intent to deliver cocaine,
and in 2002 for possession with intent to deliver marijuana. The Government argued
that the convictions were admissible because Gaddy made a general denial and
because the convictions would be relevant to Gaddy’s knowledge and intent. Gaddy
objected on the basis that the convictions were barred under Federal Rule of Evidence
404(b) because they were too old and their unfair prejudice substantially outweighed
their probative value. The district court overruled Gaddy’s objection and allowed the
convictions into evidence.

      The jury returned a guilty verdict against Gaddy on all counts except two of the
communication counts. In a special interrogatory, the jury also found that Gaddy was
responsible for five grams or more of cocaine base, but not fifty grams or more.

       At Gaddy’s sentencing on June 29, 2007, the district court found by a
preponderance of the evidence that Gaddy engaged in a conspiracy to distribute fifty
or more grams of cocaine base and determined that Gaddy had a base offense level of
32 and a criminal history category of VI under the United States Sentencing
Guidelines. The district court determined that it had no authority to address the
advisory sentencing guidelines’ crack/powder cocaine disparity that Gaddy raised.
The district court went on to find that Gaddy was a career offender, which meant that
regardless of its drug quantity finding, Gaddy had a total offense level of 37 under the
sentencing guidelines. His advisory sentencing guidelines range was 360 months’ to
life imprisonment.



                                          -4-
       The district court rejected Gaddy’s request to depart on account of overstated
criminal history. It then examined the factors in 18 U.S.C. § 3553(a) to determine
whether to vary. It discussed the nature and circumstances of Gaddy’s offense,
Gaddy’s history and characteristics, the seriousness of his offense, adequate
deterrence to criminal conduct, and protection of the public. The district court
acknowledged that the sentencing guidelines range was advisory, but it noted:

      There is a presumption in this circuit that that guideline range is
      reasonable unless the court can articulate specific reasons why it would
      not be. . . . The United States Supreme Court has now told us [in Rita v.
      United States, 552 U.S. ---, 127 S. Ct. 2456 (Jun. 21, 2007)] that there’s
      nothing wrong with that presumption, and so there’s no reason to hesitate
      to indicate that that is the law of this circuit. Unless I can come up with
      very specific reasons why the guidelines are not appropriate in your case,
      then it’s assumed that that would be a reasonable thing to do to follow
      those guidelines.

Sentencing Tr. at 16. The district court went on to find that “the state of the law is not
supportive of a variance on those [grounds, including overstated criminal history,] for
legal reasons, but also primarily based upon the criminal history. It’s difficult to come
up with rational reasons why there should be a variance from the guideline sentence
under the circumstances of this case . . . .” Id. at 17. The district court held that
Gaddy’s criminal history, the seriousness of the offense, and the need to avoid
unwarranted sentencing disparity precluded a variance. It concluded that a sentence
within the sentencing guidelines range “adequately addresse[d] the circumstances of
this defendant” and sentenced Gaddy to 360 months’ imprisonment each on the
conspiracy and the possession counts and to 96 months’ imprisonment on each of the
four communication counts, with all sentences to run concurrently.

        Gaddy appeals. First, he argues the district court improperly failed to suppress
his confession. Second, he claims that the district court erred in admitting evidence
of his prior convictions. Finally, he argues that the district court incorrectly calculated

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his advisory sentencing guidelines range and applied an improper presumption of
reasonableness to it.

II.   DISCUSSION

      A.     Gaddy’s Confession

      Gaddy first argues that the district court should have suppressed his confession.
He notes that he had not slept the night before and that he consumed alcohol and drugs
several hours before he waived his rights. He contends that the STAR team’s dynamic
entrance was designed to confuse him and that the resulting confusion meant he could
not consent voluntarily. Finally, Gaddy contends that Agent Peasley’s position, sitting
on a weight-lifting bench above Gaddy, was coercive. These factors, Gaddy argues,
support the conclusion that he did not voluntarily waive his Miranda rights.

       A waiver of the Fifth Amendment privilege against self-incrimination is valid
if the waiver is made voluntarily, knowingly and intelligently. Miranda v. Arizona,
384 U.S. 436, 444 (1966). “We accept the district court’s factual findings unless they
are clearly erroneous. We review the ultimate determination that the accused
knowingly and voluntarily waived these rights de novo.” United States v. Makes
Room, 49 F.3d 410, 414 (8th Cir. 1995). “A waiver is voluntary if it was the product
of a free and deliberate choice rather than intimidation, coercion, or deception.”
United States v. Harper, 466 F.3d 634, 643 (8th Cir. 2006) (internal quotation
omitted), cert. denied, 549 U.S. ---, 127 S. Ct. 1504 (2007). In order to determine
whether a confession was voluntary, we look to the “totality of the circumstances and
must determine whether the individual’s will was overborne.” United States v.
Castro-Higuero, 473 F.3d 880, 886 (8th Cir. 2007) (internal quotation omitted).




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        Sleeplessness, alcohol use and drug use are relevant to our analysis, but
“[i]ntoxication and fatigue do not automatically render a confession involuntary.”
United States v. Casal, 915 F.2d 1225, 1229 (8th Cir. 1990). Instead, “the test is
whether these mental impairments caused the defendant’s will to be overborne.” Id.
For instance, we have upheld the conclusion that a suspect who recently used
methamphetamine and had not slept for five days voluntarily waived his Miranda
rights where police officers testified that they had no knowledge of these alleged
impairments and the suspect did not act intoxicated. Id. Similarly, we have upheld
a district court’s conclusion that a suspect who used methamphetamine the evening
before and marijuana the day he waived his rights consented voluntarily because
police officers testified he appeared “sober and in control of his facilities.” United
States v. Contreras, 372 F.3d 974, 977 (8th Cir. 2004). Deputy Powell and Agent
Peasley each testified that Gaddy appeared awake and coherent, and Gaddy did not
tell them that he was tired, intoxicated or under the influence of drugs. Agent Peasley
testified that he advised Gaddy of his Miranda rights, that Gaddy acknowledged that
he understood them, and that he wanted to make a statement. The district court
accepted Deputy Powell’s and Agent Peasley’s testimony as credible. See United
States v. Annis, 446 F.3d 852, 856 n.2 (8th Cir. 2006) (“Credibility assessments are
for the fact-finder.”).

       The evidence also supports a finding that Gaddy was not confused or
disoriented after the STAR team’s dynamic entry and that an adequate period of time,
at least twenty minutes, elapsed between its entry and Gaddy’s waiver. Deputy
Powell testified that Gaddy looked “calm, fairly quiet” and was “very compliant” after
the STAR team left. Agent Peasley testified that Gaddy understood his Miranda
rights, agreed to waive them and appeared “cooperative” and “calm.” About forty
minutes later, Agent Peasley again asked Gaddy if he wanted to speak with him, and
Gaddy said that he did. These are not traits of someone who was confused or
disoriented by the STAR team’s dynamic entrance. In addition, Gaddy had extensive
contact with law enforcement on prior occasions. See United States v. Gallardo-

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Marquez, 253 F.3d 1121, 1123 (8th Cir. 2001) (finding that armed entrance at 6:30
a.m. did not render statements involuntary when, among other reasons, defendant had
extensive prior contact with law enforcement). Agent’s Peasley’s position, sitting on
a weight-lifting bench above Gaddy, also was not sufficiently coercive to make
Gaddy’s consent involuntary. See Harper, 466 F.3d at 644 (finding that two officers
standing closely over the defendant as he lay on the ground handcuffed shortly before
he made a statement was not coercive).

       Based on the totality of the circumstances, the district court did not err in
refusing to suppress Gaddy’s confession because its findings that his will was not
overborne is not clearly erroneous and the waiver of his Miranda rights was voluntary.
Therefore, we affirm its decision not to suppress Gaddy’s confession.

      B.     Gaddy’s Prior Convictions

       The Government introduced three of Gaddy’s prior convictions for possession
of a controlled substance with intent to deliver: cocaine base in 1995, cocaine in 1996,
and marijuana in 2002. We review the district court’s decision to admit Gaddy’s prior
convictions for abuse of discretion. See United States v. Cook, 454 F.3d 938, 940 (8th
Cir. 2006). “[We] will reverse only when such evidence clearly had no bearing on the
case and was introduced solely to prove the defendant’s propensity to commit criminal
acts.” United States v. Foster, 344 F.3d 799, 801 (8th Cir. 2003) (internal quotation
omitted).

      Evidence of prior bad acts is not admissible under [Federal] Rule [of
      Evidence] 404(b) solely to prove the defendant’s criminal disposition,
      but is admissible to show proof of . . . intent . . . [or] knowledge . . . .
      Bad acts evidence is admissible if (1) it is relevant to a material issue; (2)
      it is similar in kind and not overly remote in time to the crime charged;
      (3) it is supported by sufficient evidence; and (4) its potential prejudice
      does not substantially outweigh its probative value.


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United States v. Jackson, 278 F.3d 769, 771 (8th Cir. 2002) (internal quotations
omitted).

       First, Gaddy contends that the convictions were too remote in time to the crime
charged. At the time of his trial, Gaddy’s prior convictions were four, ten and eleven
years old, which are not so remote as to be inadmissible. See Ironi, 525 F.3d at 688
(finding that prior drug convictions that were eight and ten years old were not too
remote); Cook, 454 F.3d at 942 (concluding that drug convictions that were eight and
nine years old were not too remote); United States v. Green, 151 F.3d 1111, 1114 (8th
Cir. 1998) (listing cases in which convictions that were twelve, thirteen and seventeen
years old were admissible). Gaddy’s prior convictions are not overly remote under
Rule 404(b).

       Second, Gaddy argues that the unfair prejudice of admitting these convictions
substantially outweighed their probative value. Gaddy does not dispute the
Government’s characterization of his defense as a general denial. A general denial
defense places the defendant’s state of mind at issue. Jackson, 278 F.3d at 771. In
light of a general denial, prior drug sale convictions are probative to show that Gaddy
had the intent and knowledge necessary for a jury to convict him. See Foster, 344
F.3d at 801 (finding that a general denial defense “plac[es] intent or state of mind into
question and allow[s] the admission of prior criminal convictions to prove both
knowledge and intent”); Jackson, 278 F.3d at 771 (concluding that a general denial
defense permits evidence of prior convictions to show knowledge and intent). In
addition, any unfair prejudicial effect of these prior convictions was reduced by the
district court’s limiting instruction, which instructed the jury that it could only
consider this evidence to decide the issues of intent and knowledge. See Ironi, 525
F.3d at 688. Therefore, the potential prejudice did not outweigh the probative value
of these prior convictions, and the district court did not abuse its discretion by
admitting Gaddy’s prior convictions.



                                          -9-
      C.     Sentencing

       Gaddy argues that the district court erroneously calculated his advisory
sentencing guidelines range by making its own drug quantity determination. “A
district court’s application of the advisory guidelines is reviewed de novo, while
findings of fact are reviewed for clear error.” United States v. Whiting, 522 F.3d 845,
849 (8th Cir. 2008). The jury found that the conspiracy involved five grams or more
of cocaine base, but not fifty grams or more. The district court concluded that a
preponderance of the evidence supported the conclusion that at least fifty grams of
cocaine base were involved in the offense. See United States v. Rodriguez, 484 F.3d
1006, 1014 (8th Cir.) (holding that a sentencing court may establish a drug quantity
by a preponderance of the evidence), cert. denied, 552 U.S. ---, 128 S. Ct. 316 (2007).
Nevertheless, we need not determine whether sufficient evidence supports the district
court’s finding because the drug quantity finding was superseded by Gaddy’s status
as a career offender. See United States v. Shepard, 462 F.3d 847, 872 (8th Cir.)
(finding that challenge to drug quantity finding was moot because career offender
status trumped the drug quantity finding), cert. denied, 549 U.S. ---, 128 S. Ct. 838
(2006).

       Gaddy also argues that the district court should have considered the effect of
Amendment 706 to the sentencing guidelines, which reduced the crack/powder
cocaine sentencing ratio in § 2D1.1(c). Because Gaddy was a career offender, “the
crack/powder ratio was not ultimately used in calculating” his sentence, and “the
arguments concerning the ratio are not relevant to his case.” See United States v.
Moore, 481 F.3d 1113, 1115 (8th Cir.), cert. denied, 552 U.S. ---, 128 S. Ct. 122
(2007). Gaddy also claims that the district court erred because it did not depart on the
basis of overstated criminal history. Where, as here, the district court is aware of its
discretion to depart, its decision not to depart is unreviewable. See United States v.
Watson, 480 F.3d 1175, 1177 (8th Cir. 2007), cert. denied, 552 U.S. ---, 128 S. Ct.
305 (2007).

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       Finally, Gaddy argues that the district court violated Rita by presuming that the
advisory sentencing guidelines range was reasonable. Gaddy did not object to the
district court’s alleged presumption, so we review for plain error. See United States
v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en banc). Gaddy, sentenced after the
Rita decision, bears the burden of proving that there was “(1) error, (2) that [was]
plain, and (3) that affect[ed] substantial rights. If all three conditions are met, an
appellate court may then exercise its discretion to notice a forfeited error, but only if
(4) the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (quotation omitted).

       Even if we assume that the district court erroneously presumed the guidelines
range to be reasonable and that such error was plain, we conclude that the error did
not affect Gaddy’s substantial rights. The record does not show that he has
demonstrated a “reasonable probability that he would have received a more favorable
sentence” without the presumption. See Pirani, 406 F.3d at 551. The district court
extensively discussed the § 3553(a) factors before sentencing Gaddy. It addressed the
nature and circumstances of the offense and the history and characteristics of Gaddy,
the seriousness of the offense, the question of just punishment, adequate deterrence
to criminal conduct, protection of the public from further crimes, and avoidance of
unwarranted sentencing disparity. It decided that it would not vary “primarily based
upon the criminal history. It’s difficult to come up with rational reasons why there
should be a variance from the guideline sentence under the circumstances of this case
because of the criminal history and because of the seriousness of this particular
offense.” Sentencing Tr. at 17. The district court acknowledged that the sentencing
guidelines range was “pretty stern,” but “this general statement does not satisfy
[Gaddy’s] burden to prove that the district court would have imposed a shorter
sentence had it not made the erroneous presumption.” See United States v. Heavner,
258 Fed. Appx. 57, 59 (8th Cir. 2007) (unpublished per curiam). The district court
concluded that “the sentencing guideline range is a reasonable range.” Especially in
light of the district court’s thorough analysis of the § 3553(a) factors and its

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conclusion that the advisory sentencing guidelines range was appropriate in this case,
Gaddy “cannot carry his burden of showing that he would have received a lesser
sentence in the absence of the district court’s erroneous presumption.” See United
States v. Ibarra, 263 Fed. Appx. 536, 538 (8th Cir. 2007) (unpublished per curiam);
see also United States v. Alvizo-Trujillo, 521 F.3d 1015, 1018 (8th Cir. 2008) (“In this
case, the district court imposed the sentence not as a result of its improper
presumption, but as a result of the district court’s assessment of the relevant factors
and determination of the minimally adequate sentence, as required by § 3553(a).”)
(internal quotation omitted). Therefore, we affirm Gaddy’s sentence.

III.   CONCLUSION

       We affirm Gaddy’s conviction and sentence.
                     ______________________________




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