                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 08-14449                   APR 7, 2009
                          Non-Argument Calendar            THOMAS K. KAHN
                                                               CLERK
                        ________________________

                    D. C. Docket No. 08-20023-CR-JEM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

MICHAEL TYRONE MOBLEY,

                                                          Defendant-Appellant.


                        ________________________

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

                               (April 7, 2009)

Before DUBINA, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

     Appellant Michael Tyrone Mobley appeals his convictions and sentences
for: (1) possession of a firearm by a convicted felon, in violation of 18 U.S.C.

§§ 922(g)(1), 924(e) (Count 1); (2) possession with intent to distribute five or more

grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii)

(Count 2); (3) possession with intent to distribute marijuana, in violation of

§ 841(a)(1), (b)(1)(C) (Count 3); and (4) possession of a firearm in furtherance of a

drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 4). The

evidence at trial showed that, after Drug Enforcement Administration (“DEA”)

agents served a search warrant on a house that had been under investigation for

distribution of crack cocaine, they found Mobley sleeping in a bedroom. The

agents also found 60 bags of crack cocaine, 20 bags of marijuana, and a firearm in

Mobley’s bedroom closet, with the drugs on top of the firearm. The contraband

was located next to a bookbag containing Mobley’s personal papers.

      On appeal, Mobley challenges the sufficiency of the evidence, and argues

that the use of prior convictions violated Fed.R.Evid. 404(b), his 360-month

sentence was substantively unreasonable, and his Sixth Amendment rights were

violated because his sentence was enhanced based on prior convictions that were

not included in the indictment nor proven to a jury.




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                                           I.

      Mobley first challenges the sufficiency of the evidence supporting his

convictions. “We review the sufficiency of the evidence de novo, viewing the

evidence in the light most favorable to the government.” United States v. Garcia,

405 F.3d 1260, 1269 (11th Cir. 2005) (citation omitted). We make all reasonable

inferences and credibility choices “in favor of the government and the jury’s

verdict.” Id. We affirm “unless, under no reasonable construction of the evidence,

could the jury have found the [defendant] guilty beyond a reasonable doubt.” Id.

“The evidence need not exclude every hypothesis of innocence or be completely

inconsistent with every conclusion other than guilt because a jury may select

among constructions of the evidence.” United States v. Bailey, 123 F.3d 1381,

1391 (11th Cir. 1997).

      To support a conviction for possession with intent to distribute, under

21 U.S.C. § 841(a)(1), the government had to establish: (1) knowledge of

possession; (2) possession of a controlled substance; and (3) intent to distribute.

United States v. Woodard, 531 F.3d 1352, 1360 (11th Cir. 2008) (quotations

omitted). “These elements may be proven by circumstantial evidence.” Id. To

support a conviction for possession of a firearm by a convicted felon, under 18

U.S.C. § 922(g), “the prosecution must prove beyond a reasonable doubt that the



                                           3
defendant was (1) in knowing possession of a firearm, (2) a convicted felon, and

(3) that the firearm affected interstate commerce.” United States v. Glover, 431

F.3d 744, 748 (11th Cir. 2005) (quotation omitted).

      Possession may be proven by the government showing either actual or

constructive possession. United States v. Hernandez, 433 F.3d 1328, 1333 (11th

Cir. 2005). “Constructive possession exists when a defendant has ownership,

dominion, or control over an object itself or dominion or control over the premises

. . . in which the object is concealed.” Id. (quotations omitted). Knowledge can be

proven using evidence of the surrounding circumstances. United States v. Poole,

878 F.2d 1389, 1392 (11th Cir. 1989). “Intent to distribute can be proven

circumstantially from, among other things, the quantity of cocaine and the

existence of implements such as scales commonly used in connection with the

distribution of cocaine.” Id. Other relevant factors include the defendant’s

possession of a firearm, a large amount of cash, or an implement used to cut up

drugs. United States v. Marszalkowski, 669 F.2d 655, 662 (11th Cir. 1982).

      To support a conviction for possession of a firearm in furtherance of a

drug-trafficking offense, under 18 U.S.C. § 924(c)(1)(A), “the Government had to

establish that [the defendant] (1) knowingly (2) possessed a firearm (3) in

furtherance of any drug trafficking crime for which he could be prosecuted in a



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court of the United States.” Woodard, 531 F.3d at 1362. “The ‘in furtherance’

element requires proof that the firearm helped, furthered, promoted, or advanced

the drug trafficking.” Id. (quotation omitted). “[T]here must be a showing of some

nexus between the firearm and the drug selling operation.” United States v.

Timmons, 283 F.3d 1246, 1253 (11th Cir. 2002) (quotation omitted). We consider

several factors in determining whether a defendant possessed a firearm “in

furtherance” of a drug-trafficking crime, including:

      The type of drug activity that is being conducted, accessibility of the
      firearm, the type of the weapon, whether the weapon is stolen, the
      status of the possession (legitimate or illegal), whether the gun is
      loaded, proximity to the drugs or drug profits, and the time and
      circumstances under which the gun is found.

Woodard, 531 F.3d at 1362 (quotation omitted).

      We conclude from the record that the evidence was sufficient to support

Mobley’s convictions. First, with regard to possession with intent to distribute

crack cocaine and possession with intent to distribute marijuana, a reasonable jury

could have found, beyond a reasonable doubt, that Mobley: (1) was aware of the

crack cocaine and marijuana, which were located in his bedroom closet, next to his

bookbag containing his personal papers; (2) had dominion and control over the

closet in which the drugs were located; and (3) intended to distribute the drugs

because they were packaged for distribution, and located on top of a loaded



                                          5
firearm. Second, with regard to the conviction for possession of a firearm by a

convicted felon, a reasonable jury could have found that Mobley possessed the

firearm because he had dominion and control over his bedroom, his bedroom

closet, and likewise, the firearm that was located in his closet and next to his

bookbag. Third, with regard to the conviction for possession of a firearm in

furtherance of a drug-trafficking crime, a reasonable jury could have found that

Mobley possessed the firearm “in furtherance” of a drug-trafficking crime because:

(1) drugs were being distributed from the house where he lived; (2) the firearm was

easily accessible; (3) the cocaine and marijuana were illegal drugs; (4) the firearm

was loaded; and (5) the firearm was in close proximity to the drugs.

                                          II.

      Mobley next argues that the district court abused its discretion in allowing

into evidence his prior drug convictions. Specifically, Mobley claims that his six-

and nine-year-old drug convictions were not probative of whether he knew that the

drugs and firearm were located in his bedroom closet.




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      We review evidentiary rulings for an abuse of discretion. United States v.

Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006). Evidence admitted in violation of

Rule 404(b) is harmless when there is substantial evidence of the defendant’s guilt.

United States v. Chavez, 204 F.3d 1305, 1317 (11th Cir. 2000).

      Rule 403 states that relevant evidence may be excluded when “its probative

value is substantially outweighed by the danger of unfair prejudice.”

Fed.R.Evid. 403. Rule 404(b) provides:

      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 . . .

Fed.R.Evid. 404(b). Prejudice from improperly admitted evidence, however, may

be mitigated by a limiting instruction to the jury. United States v. Edouard, 485

F.3d 1324, 1346 (11th Cir. 2007).

      We apply a three-part test in determining whether prior bad acts were

admissible under Rule 404(b): (1) the evidence was relevant for a reason other than

for establishing the defendant’s character; (2) the probative value of the evidence

was not substantially outweighed by undue prejudice; and (3) there was substantial

evidence presented at trial that the defendant committed the prior act. United

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



                                          7
      “A defendant who enters a not guilty plea makes intent a material issue

which imposes a substantial burden on the government to prove intent, which it

may prove by qualifying Rule 404(b) evidence absent affirmative steps by the

defendant to remove intent as an issue.” Edouard, 485 F.3d at 1345 (quotation

omitted). “Where the extrinsic offense is offered to prove intent, its relevance is

determined by comparing the defendant’s state of mind in perpetrating both the

extrinsic and charged offenses.” Id. (citation omitted). Moreover, evidence of

prior drug dealings is highly probative of intent to engage in drug dealing later on.

United States v. Diaz-Lizaraza, 981 F.2d 1216, 1224 (11th Cir. 1993). “Thus,

where the state of mind required for the charged and extrinsic offenses is the same,

the first prong of the Rule 404(b) test is satisfied.” Edouard, 485 F.3d at 1345

(citation omitted).

      “[W]hether the probative value of Rule 404(b) evidence outweighs its

prejudicial effect depends upon the circumstances of the extrinsic offense.” Id.

(quotation omitted). Relevant circumstances include the “overall similarity

between the extrinsic act and the charged offense, as well as temporal remoteness.”

United States v. Jernigan, 341 F.3d 1273, 1282 (11th Cir. 2003) (quotation

omitted).




                                           8
      We conclude from the record that the district court did not abuse its

discretion by admitting evidence regarding Mobley’s prior drug convictions

because they were probative of his knowledge of possession, and intent to

distribute, crack cocaine and marijuana.

                                           III.

      Mobley next argues that his 360-month sentence was substantively

unreasonable because his criminal history category overrepresented the seriousness

of his past convictions, and his sentence was greater than necessary. He asserts

that the district court exclusively relied on the guideline range, instead of

considering all of the 18 U.S.C. § 3553(a) factors.

      We review a sentence for reasonableness under a “deferential

abuse-of-discretion standard.” Gall v. United States, 552 U.S. ___,128 S. Ct. 586,

591, 169 L. Ed. 2d 445 (2007). A sentence must be both procedurally and

substantively reasonable. United States v. Livesay, 525 F.3d 1081, 1090–91(11th

Cir. 2008). A sentence is substantively unreasonable “if it does not achieve the

purposes of sentencing stated in § 3553(a).” United States v. Pugh, 515 F.3d 1179,

1191 (11th Cir. 2008) (quotation omitted). The burden of establishing that the

sentence is unreasonable in light of the record and the 18 U.S.C. § 3553(a) factors

lies with the party challenging the sentence. United States v. Talley, 431 F.3d 784,



                                            9
788 (11th Cir. 2005).

      Section 3553(a) provides that district courts must consider, inter alia, (1) the

applicable guideline range; (2) the nature and circumstances of the offense; (3) the

history and characteristics of the defendant; (4) the need for the sentence imposed

to reflect the seriousness of the offense, to promote respect for the law, and to

provide just punishment for the offense; (5) the need for adequate deterrence to

criminal conduct; (6) protection of the public from further crimes of the defendant;

and (7) the need to avoid unwarranted sentencing disparities. 18 U.S.C. § 3553(a).

“The weight to be accorded any given § 3553(a) factor is a matter committed to the

sound discretion of the district court, and we will not substitute our judgment in

weighing the relevant factors.” United States v. Amedeo, 487 F.3d 823, 832 (11th

Cir.), cert. denied, 128 S. Ct. 671 (2007) (quotations and alterations omitted).

Although a sentence within the advisory guidelines range is not per se reasonable,

we have stated that we would ordinarily expect such a sentence to be reasonable.

See Talley, 431 F.3d at 787-88; see also Rita v. United States, 551 U.S. 338, ___,

127 S. Ct. 2456, 2462-63, 168 L. Ed. 2d 203 (2007) (noting that a sentence within

the properly calculated Guidelines range “significantly increases the likelihood that

the sentence is a reasonable one.”).

      The district court’s decision to impose a guidelines sentence, at the bottom



                                          10
of the guideline range, was reasonable and supported by the record. Moreover,

Mobley’s criminal history category did not overrepresent the seriousness of his

prior convictions because he had 10 prior drug-related convictions, his career

offender status automatically increased his criminal history category to VI, and

while the district court did not specifically refer to the § 3553(a) factors, it did take

the pertinent factors into account. Accordingly, Mobley’s 360-month sentence is

substantively reasonable.

                                           IV.

      Mobley next argues that his underlying convictions used to qualify him as an

armed career criminal should have been presented to a jury and proved beyond a

reasonable doubt. He concedes, however, that Almendarez-Torres v. United States,

523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), forecloses this issue.

      We review de novo preserved questions concerning the constitutionality of

an enhanced sentence. See United States v. Paz, 405 F.3d 946, 948 (11th Cir.

2005). In Almendarez-Torres, the Supreme Court held that the government need

not allege in its indictment nor prove beyond a reasonable doubt that a defendant

had prior convictions for a district court to use those convictions to enhance a

sentence. Almendarez-Torres, 523 U.S. at 226-27, 118 S. Ct. at 1222. Further, in

United States v. Shelton, 400 F.3d 1325, (11th Cir. 2005), we held that the decision



                                            11
in Almendarez-Torres was “left undisturbed” by Apprendi v. New Jersey, 530 U.S.

466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), Blakely v. Washington, 542 U.S.

296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and United States v. Booker, 543

U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), and that “a district court does

not err by relying on prior convictions to enhance a defendant’s sentence.”

Shelton, 400 F.3d at 1329.

      Because Almendarez-Torres remains good law, prior convictions need not

be proven to a jury or alleged in an indictment to enhance a sentence, and the

district court did not err in considering the prior convictions to support the armed

career criminal enhancement.

      For the above-stated reasons, we affirm Mobley’s convictions and sentences.

      AFFIRMED.




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