                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            OCT 7, 2008
                             No. 08-10980
                                                          THOMAS K. KAHN
                         Non-Argument Calendar
                                                              CLERK
                       ________________________

                    D. C. Docket No. 06-00273-CR-A-N

UNITED STATES OF AMERICA,


                                                           Plaintiff-Appellee,

                                  versus

AUBREY GOODWIN,

                                                        Defendant-Appellant.


                       ________________________

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

                             (October 7, 2008)

Before CARNES, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:

     Aubrey Goodwin appeals his conviction and 97-month sentence for
distribution of cocaine base, commonly known as crack cocaine. Goodwin asserts

that the district court violated Rule 404(b) of the Federal Rules of Evidence by

permitting a government witness to testify regarding an unindicted occasion when

Goodwin distributed crack cocaine and marijuana. Goodwin also contests the

sufficiency of the evidence for his conviction and the reasonableness of the district

court’s sentence. We affirm the district court in all respects.

                                I. BACKGROUND

      Goodwin was indicted in the Middle District of Alabama on two counts of

distributing five grams or more of crack cocaine in violation of 21 U.S.C. §

841(a)(1). The indictment stated that Goodwin distributed 22.9 grams of crack

cocaine on May 21, 2003, and 47.7 grams of crack cocaine on June 11, 2003.

      Prior to trial, Goodwin moved to prevent informant Claude Russaw from

testifying that he observed Goodwin sell an ounce of crack cocaine and an

unknown quantity of marijuana several weeks prior to the events in the indictment.

Goodwin argued that this evidence of uncharged criminal activity would poison

the jury’s view of his character. The government replied that the earlier drug sale

established a relationship between Goodwin and Russaw and explained why

Russaw sought to buy drugs from Goodwin. The district court denied Goodwin’s

motion, finding that testimony regarding Goodwin’s unindicted distribution of

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crack cocaine and marijuana was inextricably intertwined with the charged

offenses and vital to understanding the context of the government’s case, as it

explained why Goodwin was the target of the investigation and how he came to

know the confidential informant. The district court agreed to give a limiting

instruction to the jury regarding this evidence.

       The evidence at trial included the following: Russaw, the confidential

informant, testified that he, from time to time, provided Officer Hubbard with

information on drug dealers, and that Officer Hubbard and the district attorney’s

office paid Russaw to make controlled purchases. Following the district court’s

limiting instruction, Russaw testified that he first met Goodwin when he

accompanied his cousin to buy crack cocaine and marijuana from Goodwin.1 At

that time, Russaw was introduced to Goodwin, who gave his cell phone number to

Russaw and stated that he would sell Russaw crack cocaine in the future. Russaw

       1
          Goodwin objected to this testimony based on his pretrial motion, and the court
overruled the objection. The court then provided the following limiting instruction: “You’re
going to hear some testimony about something that does not have to do with either one of these
charges against the defendant. I’m allowing you to hear this just as background information to
make the story complete, and that’s the only reason for you to consider this. I’ve told you earlier
that the defendant is charged with two counts, one is the distribution of crack cocaine on May 21,
2003, and the other is distribution of crack cocaine on June 11, 2003. To the extent you believe
any testimony that might involve the defendant in anything else other than those two occasions, if
you believe that testimony you can consider it only as background information and only to the
extent that it may affect your decision as to whether the Government has proven beyond a
reasonable doubt the charges on wither one or both of the two counts. So you’re not to consider
these - the testimony about another occasion, but any other reason - the defendant is not charged
with anything involving another date.”

                                                3
then contacted Officer Hubbard and told him that he had met an individual selling

crack cocaine.

      Both Officer Hubbard and Russaw testified that they met, with several other

officers, at a staging area for a controlled purchase on May 21, 2003. After

Officer Hubbard searched Russaw’s person and car, Russaw called Goodwin and

arranged for the purchase of one ounce of crack cocaine for $900. Officer

Hubbard supplied Russaw with $1,000 and a transmitting device that would allow

officers to listen to the controlled buy. Russaw went to the designated location;

Goodwin arrived in the “blue box Chevy” which he was known to drive and

Russaw testified that he successfully purchased the ounce of crack cocaine from

Goodwin. Officer Hubbard was not situated so as to see the transaction, but he did

see the “blue box Chevy” approach the designated location. After the transaction,

Russaw gave Officer Hubbard the extra $100 and the ounce of crack cocaine. At

trial, the government played a recording of Russaw’s and Goodwin’s conversation,

and Russaw described for the jury what was being stated.

      Russaw and Officer Hubbard both testified that on June 11, 2003 they met

along with other officers at the controlled purchase staging area and Russaw called

Goodwin and set up the purchase for two ounces of crack cocaine. After

searching Russaw’s person and car, Officer Hubbard gave Russaw $2,000 and the

                                         4
transmitting device. Russaw went to the location Goodwin selected, with Officer

Hubbard following and observing from a distance. Officer Hubbard and Russaw

saw Goodwin arrive in a black SUV, and Russaw testified that Goodwin charged

$1,700 for two ounces of crack cocaine. After the transaction, Russaw gave

Officer Hubbard the two ounces of crack cocaine along with the $300 change.

The government played a recording of Russaw’s and Goodwin’s conversation, and

Russaw described for the jury what was being stated.

      The government also presented the testimony of David Dubose, a narcotics

investigator with the local district attorney’s office, who stated that Russaw was a

reliable informant with a history of providing accurate information. Dubose

further testified that he participated in the June 2003 controlled purchase, listening

to it over the transmitter. A DEA chemist testified that the substances purchased

in the controlled buys on May 21st and June 11th were 22.9 grams of crack

cocaine, and 47.7 grams of crack cocaine, respectively. Goodwin moved for

judgment of acquittal on both counts, arguing that the evidence was insufficient to

support a conviction because none of the law enforcement officers observed

Goodwin distribute the drugs. The court denied the motion. The jury convicted

Goodwin on both counts.

      The presentence investigation report (“PSI”) calculated Goodwin’s base

                                          5
offense level at 30 and his criminal history category of I, with a recommended

range of 97-121 months’ imprisonment.

       At sentencing, Goodwin did not object to the PSI’s factual basis or to its

calculation of the Sentencing Guidelines range. Nonetheless, Goodwin argued

that he was entitled to a lesser sentence because the Sentencing Commission’s

2007 amendments to the Sentencing Guidelines, which advance a crack/powder

cocaine ratio that varies (at different offense levels) between 25 to 1 and 80 to 1,2

result in an unreasonable sentence. Specifically, Goodwin asserts that the

“wildly” varying ratios are not based on reason and reflect an “unsound judgment”

by the Sentencing Commission. For this reason, Goodwin maintained that the

court should apply the lowest ratio of 25 to 1, rather than the 70 to 1 ratio required

for a defendant with a base offense level of 30. The government responded that

Goodwin was impermissibly urging the court to “assume the role of the

Legislature” and had failed to establish a valid reason for departing from the

Guidelines.

       The district court stated that while it did not understand why the



       2
          Prior to these amendments, the Sentencing Guidelines called for a “100-to-1 ratio” that
treated every gram of crack cocaine as the equivalent of 100 grams of powder cocaine. This ratio
was applied regardless of the base offense level.


                                                6
Commission applied different crack/powder ratios for each offense level, it did not

find that the ratios were the result of unsound judgment. The court recognized that

the Guidelines were merely advisory, but found that the suggested range was

reasonable and imposed a sentence of 97 months imprisonment.

      Goodwin raises several issues on appeal: first, that the admission of

Russaw’s testimony regarding the uncharged criminal activity was unfairly

prejudicial to him; second, that the evidence in the case does not support the

conviction; and finally, that the district court’s imposition of a sentence of 97

months - which was within the Sentencing Guidelines range - was unreasonable.

                                 II. DISCUSSION

A.    Evidence of Uncharged Criminal Activity

      “We review the district court’s admission of prior crimes or bad acts under

[Rule 404(b)] for abuse of discretion.” United States v. Ramirez, 426 F.3d 1344,

1354 (11th Cir. 2005). “An abuse of discretion arises when the district court’s

decision rests upon a clearly erroneous finding of fact, an errant conclusion of law,

or an improper application of law to fact.” United States v. Baker, 432 F.3d 1189,

1202 (11th Cir. 2005). To be admissible under Rule 404(b), evidence of prior bad

acts generally must withstand a three-part test:

      (1) the evidence must be relevant to an issue other than defendant’s

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       character;
       (2) the probative value must not be substantially outweighed by its
       undue prejudice;
       (3) the government must offer sufficient proof so that the jury could
       find that defendant committed the act.

United States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir. 2008); see also United

States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc) (discussing these

three prerequisites as part of a two-step test).3 We also have held that evidence of

uncharged criminal activity is intrinsic, and thus not subject to Rule 404(b), if it

arose from the same transaction as the indicted crime, is necessary to complete the

story of the crime, or is inextricably intertwined with the evidence required to

prove the charged offense. United States v. Jiminez, 224 F.3d 1243, 1249 (11th

Cir. 2000). Even if the evidence meets one of these exceptions, it may still be

excluded if “its probative value ‘is substantially outweighed by the danger of

unfair prejudice.’ ” United States v. Fortenberry, 971 F.2d 717, 721 (11th Cir.

1992) (quoting Fed.R.Evid. 403).

       On appeal, Goodwin does not dispute that the evidence was necessary to

complete the story of the crime and was inextricably intertwined with the evidence



       3
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.


                                               8
regarding the charged offense. Rather, he contends that the evidence was wrongly

admitted because its prejudicial impact substantially outweighed its probative

value. We disagree. The evidence was highly probative to explain how Russaw

had Goodwin’s cell phone number and knew that Goodwin was selling crack

cocaine. Moreover, the district court offered a limiting instruction as to the proper

purpose of the admitted evidence. See United States v. Padron, 527 F.3d 1156,

1160 (11th Cir. 2008). We therefore cannot conclude that the district court abused

its discretion in admitting this portion of Russaw’s testimony.

      B.     Sufficiency of the Evidence

      We review the sufficiency of evidence supporting a conviction de novo to

determine whether there was substantial evidence, viewed in the light most

favorable to the government, to support the jury’s guilty verdict. Glasser v. United

States, 315 U.S. 60, 80 (1942); United States v. Baker, 432 F.3d 1189, 1231 -1232

(11th Cir. 2005).; United States v. Toler, 144 F.3d 1423, 1426-27 (11th Cir. 1998);

United States v. Malatesta, 590 F.2d 1379, 1382 (5th Cir. 1979) (en banc). The

evidence at trial is sufficient to support a guilty verdict so long as a reasonable

trier of fact, choosing among reasonable interpretations of the evidence, could find

guilt beyond a reasonable doubt. Toler, 144 F.3d at 1428. In other words, a guilty

verdict will not be disturbed on appeal unless no reasonable trier of fact could

                                           9
have found guilt beyond a reasonable doubt on the evidence before it. Id.

       Goodwin argues that the evidence was insufficient to support his conviction

because Russaw was the only person to testify that Goodwin was the individual

whom Russaw called to set up the controlled buys and only Russaw definitively

identified Goodwin as the seller.4 Viewing all the evidence in the light most

favorable to the government, we conclude that the evidence was sufficient to

support the jury’s conviction of Goodwin. Russaw testified that, on the dates in

question, Goodwin sold him crack cocaine. This testimony is consistent with the

testimony of Officer Hubbard and the DEA lab confirmed that the substances

obtained in the controlled buys were 22.9 and 47.7 grams of crack cocaine. While

Goodwin implies that Russaw’s testimony is not credible, the jury is responsible

for making credibility determinations and, based on the verdict, the jurors

obviously found Russaw to be credible. United States v. Ndiaye, 434 F.3d 1270,

1296 (11th Cir. 2006). As such, there was sufficient evidence for a reasonable

jury to find that Goodwin was guilty of distributing more than five grams of crack

cocaine on the dates in issue.


       4
         Goodwin asserts that Officer Hubbard’s identification of Goodwin on May 21st and June
11th were not sufficient because (1) Officer Hubbard only identified the “blue box Chevy” on
May 21st and (2) was 200 yards away from the controlled buy on June 11th. Also, Officer
Hubbard was unable to identify the drug dealer’s voice on the recordings from the controlled
buys.

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       C.      Reasonableness of Sentence

       Finally, we review the district court’s final sentence for reasonableness

under an abuse-of-discretion standard. United States v. Pugh, 515 F.3d 1179,

1189 (11th Cir. 2008) (citing Rita v. United States, 127 S.Ct. 2456, 2465 (2007)).

We must first ensure that the district court committed no significant procedural

error, such as improperly calculating the Guidelines range, treating the Guidelines

as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based

on clearly erroneous facts, or failing to adequately explain the chosen sentence.

Gall v. U.S., 522 U.S. __, 128 S.Ct. 586, 597 (2007). If the district court’s

sentencing decision is procedurally sound, we must then consider the “substantive

reasonableness of the sentence imposed, under an abuse-of-discretion standard,”

based on the “totality of the circumstances.” Id. “The party who challenges the

sentence bears the burden of establishing that the sentence is unreasonable in the

light of both th[e] record and the factors in section 3553(a).” United States v.

Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006) (internal quotation omitted).

       Goodwin does not claim any procedural error in the determination of his

sentence;5 accordingly, we only review the substantive reasonableness of the

       5
         We conclude the district court’s sentencing decision was procedurally sound; the district
court correctly calculated the applicable Guidelines range, allowed both parties to present
arguments as to what they believed the appropriate sentence should be, considered all of the §

                                               11
sentence. Goodwin argues that because the amended crack/powder ratio varies for

no obvious reason according to the applicable offense level, the application of the

Guidelines results in unreasonable sentences for crack cocaine defendants; thus,

the district court should not have applied this ratio, as amended, in imposing his

sentence.

       We conclude that the district court did not abuse its discretion in sentencing

Goodwin within the Guidelines as amended. The Supreme Court has explained

that although the Sentencing Guidelines are now advisory, United States v.

Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the

Sentencing Commission nevertheless continues to serve “a key role.” Kimbrough

v. United States, __ U.S. __, 128 S.Ct. 558, 574 (2007). In respect to this role,

district courts must treat the Guidelines as the “starting point and the initial

benchmark” in considering the appropriate sentence. Gall v. United States, __

U.S. __, 128 S.Ct. 586 (2007). In Kimbrough, the Supreme Court further

explained that a district court, in imposing a reasonable sentence under the §

3553(a) factors, may consider the disparity between the base offense levels for

crack and powder cocaine. 128 S.Ct. at 574. Although Kimbrough permits a

district court to grant a downward variance based on the crack to powder cocaine

3553(a) factors, and thoroughly explained its reasoning.

                                               12
ratio disparity for different offense levels, it does not require a district court to do

so.

      In this case, the district court noted the disparity between the crack cocaine

and powder cocaine Guidelines and rejected Goodwin’s argument that the crack

cocaine Guideline should not be applied. The district court then considered the §

3553(a) factors and found that a sentence within the Guideline range was

reasonable and not greater than necessary to comply with the purposes of

sentencing. Goodwin objected to the imposition of the Guidelines, but he

presented no evidence suggesting that a 97-month sentence was substantively

unreasonable under the relevant factors. We therefore conclude that the district

court did not err or abuse its discretion in sentencing Goodwin within the

Guidelines.

                                 III. CONCLUSION

      For the foregoing reasons, Goodwin’s conviction and sentence are

AFFIRMED.




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