                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0242n.06
                            Filed: March 31, 2009

                                             No. 07-6056

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                          )
                                                   )
       Plaintiff-Appellee                          )
                                                   )
v.                                                 )    ON APPEAL FROM THE UNITED
                                                   )    STATES DISTRICT COURT FOR THE
HERBERT HAMER,                                     )    WESTERN DISTRICT OF TENNESSEE
                                                   )
       Defendant-Appellant.                        )




       Before: MARTIN and COOK, Circuit Judges; and WATSON, District Judge.*


       MICHAEL H. WATSON, District Judge. Defendant-Appellant Herbert Hamer was indicted

on one count of 18 U.S.C. § 922(g), which precludes any person convicted of “a crime punishable

by imprisonment for a term exceeding one year” from possessing a firearm. At trial, the district

court permitted the Government to introduce evidence of Defendant’s prior bank robbery conviction.

After a jury convicted Defendant as a felon in possession of a firearm, the district court used its fact

finding about the prior conviction to increase Hamer’s sentence to the 180-month minimum sentence

under the Armed Career Criminal Act, 18 U.S.C. § 924(e). For the reasons which follow, we affirm.




       *
        The Honorable Michael H. Watson, United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 07-6056
United States v. Hamer

                                                 I.


       Before this case went to trial in the Western District of Tennessee, Defendant filed motions

in limine seeking to exclude expert testimony and prior-conviction evidence, and a request for jury

instructions. At issue here is Defendant’s Proposed Jury Instruction No. 3 (“Instruction 3”):


       You have heard evidence that the [D]efendant allegedly made the oral statement that
       he was ‘convicted of bank robbery years ago.’ You are instructed, however, that you
       cannot convict on the basis of this statement alone. That is to say, the [G]overnment
       must introduce independent evidence in order to establish the trustworthiness and
       reliability of the [D]efendant’s statements in order to find him guilty of the offense
       charged in the indictment. If you find that the [G]overnment has failed to introduce
       such evidence, you must find the [D]efendant not guilty.


In response, the Government stated that it would introduce two of Defendant’s recent felony

convictions only for impeachment purposes, but that the Government would introduce “evidence of

the Defendant’s prior bank robbery conviction for which he was convicted in 1970” as “independent

corroboration of his statement to the police.”


       Government witness and Memphis police officer Kittrel Robinson testified that while

detaining and questioning the Defendant for his firearm-possession incident on October 12, 2004,

Defendant mentioned a prior bank robbery conviction and that he owned the firearm Officer

Robinson recovered.      Officer Robinson recorded these statements and after reviewing the

information, Defendant signed a Rights Waiver Form. The Government introduced the Rights

Waiver Form at trial and Officer Robinson read the recorded statement aloud without objection by

defense counsel.

                                                 -2-
No. 07-6056
United States v. Hamer

       Later, when the issue of corroborating Defendant’s statement arose, defense counsel

withdrew Instruction 3 and the court summarized: “So the instruction on this corroboration issue

is withdrawn by the defense and the [G]overnment will not seek to introduce evidence to prove the

prior robbery.”


       On May 7, 2007, the jury returned a guilty verdict on the one-count indictment. The

presentence report (“PSR”) classified Defendant as an Armed Career Criminal (“ACC”), specifying

five qualifying convictions. Neither side raised objections. At sentencing, the district court noted

that with a criminal history category of IV and an adjusted offense level of 33, Defendant’s advisory

Guidelines range was 235-to-293 months. After considering the § 3553(a) sentencing factors, the

court imposed an 180-month sentence, the statutory minimum for an ACC. Defendant timely

appealed.


                                                 II.


                                                 A.


       Defendant raises three issues for our review. First, Defendant contends that the district court

committed plain error in permitting the Government to introduce evidence of Defendant’s prior bank

robbery conviction under Federal Rules of Evidence 403 and 404(b). We disagree.


       Generally, we review de novo the district court's legal determination concerning the

admissibility of other acts evidence for a permissible purpose and we review for abuse of discretion


                                                -3-
No. 07-6056
United States v. Hamer

its determination that the probative value of evidence is not substantially outweighed by the risk of

unfair prejudice. United States v. Myers, 123 F.3d 350, 362–63 (6th Cir. 1997). But where, as here,

the defendant failed to specifically and contemporaneously object to such evidence, we review for

plain error. See United States v. Kelly, 204 F.3d 652, 655 (6th Cir. 2000). To demonstrate plain

error, a defendant must show: (1) a district court error that was (2) plain, (3) affected the defendant’s

substantial rights, and (4) seriously affected the fairness, integrity or public reputation of the judicial

proceedings. United States v. Schulte, 264 F.3d 656, 660 (6th Cir. 2001).


        Defendant observes that Instruction 3 contained an improper statement of the law and defense

counsel withdrew the instruction during trial. Further, Defendant maintains that because he

stipulated to being convicted of a crime for which the punishment exceeded one year, the

Government unnecessarily introduced evidence of the prior bank robbery. As a result, Defendant

argues that admitting the bank robbery evidence compromised his right to a fair trial.


        Rule 404(b) prohibits the use of “[e]vidence of other crimes, wrongs, or acts . . . to prove the

character of a person in order to show action in conformity therewith.” Fed. R. Evid. 404(b). On the

other hand, evidence of “prior bad acts” is admissible, subject to Rule 403, if it is relevant to any

material issue other than character. Huddleston v. United States, 485 U.S. 681, 687 (1988).


        In the typical case, where the defendant stipulates to his status as a felon for purposes of

§ 922(g)(1), the government may not refer to the specific name or nature of the defendant’s prior

convictions in its case-in-chief. See Old Chief v. United States, 519 U.S. 172, 186-87 (1997). But


                                                   -4-
No. 07-6056
United States v. Hamer

there is a slight twist here: the Defendant filed a proposed jury instruction stating, “You have heard

evidence that the [D]efendant allegedly made the oral statement that he was ‘convicted of bank

robbery years ago[,] and that “the [G]overnment must introduce independent evidence in order to

establish the trustworthiness and reliability of the [D]efendant’s statements . . . .” The court had not

ruled on the proposed jury instruction at the time Officer Robinson testified. The Government

argues that this proposed jury instruction is evidence that the Defendant anticipated that the

statement about his prior bank robbery conviction would be admitted, and thus excuses the

admission of prior bad acts.


        We need not decide whether the filing of the proposed jury instruction lessened or cured the

Old Chief Rule 404(b) concerns. Assuming that it did not and that the district court erred by

admitting the testimony, where “there is ‘no objection by the defendant[,] and [when] the properly

admitted evidence of the defendant's guilt [is] overwhelming,’ a reversal on 404(b) grounds is

inappropriate.” See United States v. Cowart, 90 F.3d 154, 157–58 (6th Cir. 1996) (quoting United

States v. Merriweather, 78 F.3d 1070, 1075 (6th Cir. 1996)). At trial, Defendant stipulated to his

prior conviction for a crime that resulted in punishment exceeding one year. Moreover, Officer

Robinson testified that Defendant admitted he owned the .22 caliber handgun which Robinson

recovered after patting down Defendant. Accordingly, admitting evidence of Defendant’s prior

conviction for bank robbery did not “seriously affect the fairness, integrity, or public reputation” of

his trial. See Johnson v. United States, 520 U.S. 461, 467 (1997) (internal quotation marks omitted).




                                                 -5-
No. 07-6056
United States v. Hamer

                                                  B.


       Second, Defendant argues that the district court violated the Sixth Amendment by making

findings about the fact of prior convictions and using these findings to increase Defendant’s sentence

to the 180-month minimum sentence required under 18 U.S.C. § 924(e). On de novo review, we

reject Defendant’s argument. It is well-settled that the Supreme Court excepts “the fact of a prior

conviction” from its general rule that a jury must find, and prove beyond a reasonable doubt,

sentence-enhancing facts. See United States v. Booker, 543 U.S. 220, 244 (2005); Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000); Almendarez-Torres v. United States, 523 U.S. 224 , 235 (1998).

Our case law is consistent. See United States v. Beasley, 442 F.3d 386, 391 (6th Cir. 2006); United

States v. Barnett, 398 F.3d 516, 524-25 (6th Cir. 2005), cert. denied, 545 U.S. 1163 (2005).


                                                  C.


       Finally, Defendant contends that the Supreme Court’s decision in District of Columbia v.

Heller, - - - U.S. - - - , 128 S. Ct. 2783 (2008), created a defense for Defendant that was unavailable

at the time of trial.     This argument is unavailing.       The Heller decision focused on the

constitutionality of two District of Columbia statutes involving a total ban on handguns and

requirements that firearms be kept nonfunctional. None of these statutes involve a restriction on a

convicted felon possessing firearms.




                                                 -6-
No. 07-6056
United States v. Hamer

                         III.


       We affirm.




                         -7-
