                                                     [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT            FILED
                     ________________________ U.S. COURT OF APPEALS
                                                     ELEVENTH CIRCUIT
                           No. 08-10327                 APRIL 15, 2009
                       Non-Argument Calendar          THOMAS K. KAHN
                     ________________________              CLERK


                   D. C. Docket No. 07-20584-CR-UU

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                               versus

JOSE GONZALEZ,
STEVEN HARTSFIELD,

                                                 Defendants-Appellants.

                     ________________________

                           No. 08-12010
                       Non-Argument Calendar
                     ________________________

                   D. C. Docket No. 07-20584-CR-UU

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                               versus
EARNEST PICKETT,

                                                     Defendant-Appellant.
                           ________________________

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

                                  (April 15, 2009)

Before TJOFLAT, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

      On July 26, 2007, a Southern District of Florida grand jury returned a six-

count indictment against Jose Gonzalez, Steven Hartsfield, Earnest Pickett, Juan

Alameda, and Gilbert Guerrero charging them as follows. Count 1 alleged that the

defendants conspired to possess with intent to distribute a mixture and substance

containing five kilograms or more of cocaine, in violation of 21 U.S.C. §

846(b)(1)(A). Count 2 charged the defendants with attempting to possess the

mixture and substance referred to in Count 1, in violation of 21 U.S.C. § 841(a)(1).

Count 3 alleged that the defendants conspired to commit a Hobbs Act robbery, in

violation of 18 U.S.C. § 1951(a). Count 4 alleged that they attempted to commit

the robbery referred to in Count 3, in violation of 18 U.S.C. § 1951(a). Count 5

charged the defendants with carrying a firearm in relation to the drug trafficking

crimes alleged in Counts 1 and 2, in violation of 18 U.S.C. § 924(c)(1)(A). Count

6 charged Gonzalez and Hartsfield with possession of a firearm by a convicted



                                          2
felon, in violation of 18 U.S.C. § 922(g)(1).

      These charges grew out of a sting operation set up by a Miami-Dade Police

Department Street Terror Offender Program, a task force of federal and state law

enforcement agencies. In March 2007, a confidential informant, Modesto Garcia,

informed two Miami-Dade detectives that (defendant) Alameda and a group of

confederates were interested in committing a robbery of a drug stash house. One

of the detectives, acting under cover, posed as a drug dealer, whose job was to

secure cocaine flown in from Colombia and to deliver it to his employers in

Miami. He told Alameda that he wanted to rob his employers because they owed

him money. Alameda agreed to assist him in carrying out the robbery.

      By July 5, 2007, preparations for a robbery were in place. The undercover

detective told Alameda that a delivery of cocaine would be arriving from Colombia

within a week. On July 12, he called Alameda and informed him that the cocaine

had arrived and that it would be delivered to the stash house, a local warehouse, the

next day. On July 13, the defendants then gathered in Miami and met Garcia at a

Home Depot parking lot. Garcia had driven there in his Ford Expedition, which

was equipped with video surveillance camera. While under the task force’s

surveillance, Alameda placed an AK-47 assault rifle in Garcia’s Expedition, and

Gonzalez, armed with a handgun, Hartsfield, and Guerrero got into the Expedition



                                          3
with Garcia. Alameda and Pickett went to Alameda’s car, and the two vehicles

drove to the warehouse. They were arrested on arrival.

       All five defendants entered pleas of not guilty. On September 21, 2007,

Guerrero, and Alameda pled guilty to Counts 1 through 5 of the indictment.

Gonzalez, Hartsfield, and Pickett elected to stand trial. Guerrero, who was

cooperating with the Government, would testify against them. The trial began on

September 25, 2007. Five days later, on October 1, the jury returned their verdicts,

convicting Gonzalez on all counts,1 Hartsfield guilty on Counts 3 through 6, and

Pickett on Counts 3 and 4. Following the imposition of sentence, Gonzalez,

Hartsfield, and Pickett appealed. Pickett’s appeal having been filed separately has

been consolidated with Gonzalez and Hartsfield’s. All three challenge their


       1
           Although neither the government nor Gonzalez has noted the clerical errors in the
judgment the court entered against Gonzalez, we do so sua sponte and remand with instructions
that the district court correct the errors. United States v. Massey, 443 F.3d 814, 822 (11th Cir.
2006). We have done this where the statute cited in the judgment and commitment order was
incorrect. United States v. Anderton, 136 F.3d 747, 751 (11th Cir. 1998). The judgment aginst
Gonzalez does not list the correct statutory provisions he violated. The judgment as to Counts 1,
2, and 6 are correct, but is incorrect as to Counts 3, 4, and 5. In Count 3, Gonzalez was charged
with conspiracy to obstruct, delay, and affect commerce by means of robbery, in violation of 18
U.S.C. §§ 1951(a), (b)(1), and (b)(3). However, the judgment lists “21 U.S.C. § 1951(a)” as
violated. In Count 4, Gonzalez was charged with attempt to obstruct, delay, and affect
commerce by means of robbery, in violation of 18 U.S.C. §§ 1951(a), (b)(1), and (b)(3), but
similarly, the judgment lists “21 U.S.C. § 1951(a).” In Count 5, Gonzalez was charged with
carrying a firearm during and in relation to a crime of violence and a drug trafficking crime, in
violation of 18 U.S.C. §§ 924(c)(1)(A) and 2. The judgment, however, lists “18
U.S.C.(c)(1)(A)” as the violation.       Accordingly, we affirm Gonzalez’s convictions, but vacate
the district court’s judgment and remand the case to allow the court to amend the judgment to
reflect the correct statutory provisions violated.


                                                4
convictions; Hartsfield also challenges his sentences.2

                                               I.

                                              A.

       We begin our consideration of these appeals by delineating the elements of

the offenses alleged in the several counts of the indictment and what the

government had to do to prove them. We first take up § 1951(a), the Hobbs Act,

then §§ 924(c)(1) and 922(g)(1).

       “The Hobbs Act prohibits robbery or extortion, and attempts or conspiracies

to commit robbery or extortion, that in any way or degree obstruct, delay, or affect

commerce or the movement of any article or commodity in commerce.” United

States v. Diaz, 248 F.3d 1065, 1084 (11th Cir. 2001) (internal quotation marks and

punctuation omitted). Section 1951(a) of Title 18 provides that:

           [w]hoever in any way or degree obstructs, delays, or affects
           commerce or the movement of any article or commodity in
           commerce, by robbery or extortion or attempts or conspires so
           to do, or commits or threatens physical violence to any person
           or property in furtherance of a plan or purpose to do anything in
           violation of this section shall be fined under this title or
           imprisoned not more than twenty years, or both.



       2
         The district court sentenced Hartsfield as follows: concurrent sentences of 240 months’
imprisonment on Counts 3 and 4, 180 months’ imprisonment on Count 6, 60 months of which
are consecutive to the Counts 3 and 4 sentences, and 60 months’ imprisonment on Count 5, to be
served consecutively to the sentences on Counts 3, 4, and 6, for a total term of imprisonment of
360 months.

                                               5
18 U.S.C. § 1951(a).

       To prove a Hobbs Act conspiracy (Count 3), the government had to prove

that: “(1) two or more persons agreed to commit a robbery encompassed within the

Hobbs Act; (2) the defendant knew of the conspiratorial goal; and (3) the defendant

voluntarily participated in helping to accomplish the goal.” United States v. To,

144 F.3d 737, 747-48 (11th Cir. 1998). “Although mere presence is inadequate to

establish guilt . . . it is material, highly probative, and not to be discounted.”

United States v. Gamboa, 166 F.3d 1327, 1332 (11th Cir. 1999) (internal quotation

marks and citation omitted).

       “Because the Hobbs Act, by its own terms, encompasses the inchoate

offenses of attempt and conspiracy, the interstate nexus required to prove a Hobbs

Act conspiracy may be established upon evidence that had the conspiratorial

objective been accomplished, interstate commerce would have been affected.”

United States v. Orisnord, 483 F.3d 1169, 1177 (11th Cir.), cert. denied, 128 S.Ct.

673 (2007) (emphasis added). The type of evidence required for the government to

satisfy its burden of proof concerning the interstate commerce nexus under the

Hobbs Act differs depending on whether the defendant is charged with inchoate

offenses of conspiracy and attempt, on the one hand, or a substantive offense, on

the other. United States v. Le, 256 F.3d 1229, 1232 (11th Cir. 2001). Where a



                                             6
defendant is charged with conspiracy (Count 3) or attempt (Count 4) to violate the

Hobbs Act, “the interstate nexus may be demonstrated by evidence of potential

impact on interstate commerce or by evidence of actual, de minimis impact.” Id.

(citations omitted). In the case of a substantive Hobbs Act offense, the “impact on

commerce does not need to be substantial; all that is required is minimal impact.”

Id. Moreover, that the intended victims and narcotics were fictional in a sting

operation is irrelevant to establishing the interstate commerce jurisdictional

requirement for a conviction under the Hobbs Act. United States v. Taylor, 480

F.3d 1025, 1027 (11th Cir.), cert. denied, 128 S.Ct. 130 (2007).

      To establish a violation of 18 U.S.C. § 924(c)(1) (Count 5), the government

had to demonstrate beyond a reasonable doubt that the defendant (1) knowingly

(2) possessed a firearm (3) during and in relation to a drug trafficking crime or a

crime of violence. United States v. Woodard, 531 F.3d 1352, 1362 (11th Cir.

2008); 18 U.S.C. § 924(c)(1)(A). A “crime of violence” means an offense that is a

felony and either (1) has as an element the use or attempted use of physical force

against a person or (2) by its nature involves a substantial risk that physical force

against a person may be used in the course of committing the offense. 18 U.S.C.

§924(c)(1)(D)(3). An attempted robbery constitutes a crime of violence under §

924(c)(1)(A). See United States v. Hooper, 270 Fed. Appx. 929, 930 (11th Cir.),



                                           7
cert. denied, 129 S.Ct. 429 (2008) (unpublished) (finding evidence sufficient to

support a § 924(c) conviction when a defendant used a firearm during an attempted

robbery). Further, the government is not required to show to a “scientific

certainty” that a defendant was carrying a gun, nor is it required to introduce the

gun into evidence. United States v. Woodruff, 296 F.3d 1041, 1049 (11th Cir.

2002).

         To convict a defendant of being a felon in possession of a firearm under 18

U.S.C. § 922(g)(1) (Count 6), the government had to prove beyond a reasonable

doubt that (1) the defendant was a convicted felon, (2) the defendant knowingly

possessed a firearm, and (3) the firearm was in or affected interstate commerce.

United States v. Deleveaux, 205 F.3d 1292, 1296-97 (11th Cir. 2000).

         In this case, the government could prove, through direct or circumstantial

evidence, the first element under both §§ 922(g)(1) and 924(c) – knowing

possession of a firearm – either actual or constructive possession. United States v.

Greer, 440 F.3d 1267, 1271 (11th Cir. 2006). “Constructive possession exists

when the defendant exercises ownership, dominion, or control over the item or has

the power and intent to exercise dominion or control.” Id. Mere presence near

contraband or awareness of its location, is insufficient to establish possession.

United States v. Gardiner, 955 F.2d 1492, 1495 (11th Cir. 1992). We have found



                                            8
sufficient evidence of constructive possession of a gun that was found in the glove

compartment of a car in which the defendant was a backseat passenger, as the jury

could “find that the firearm was being carried by [the defendant] in the vehicle.”

United States v. Farris, 77 F.3d 391, 395-96 (11th Cir. 1996).

                                                 B.

       Pickett argues that the district court erred by denying his motion for

judgment of acquittal because the evidence was insufficient for a jury to conclude

that he conspired or attempted to commit a Hobbs Act robbery. Hartsfield argues,

independently, that there was insufficient evidence for a reasonable juror to find

that he conspired or attempted to commit a Hobbs Act robbery, possessed a firearm

or ammunition, or knowingly possessed a firearm in relation to a crime of

violence.3 Hartsfield asks us not to rely on Guerrero’s testimony in reviewing the


       3
           The Government argues that Hartsfield did not properly adopt the briefs of his
codefendants. In his appellate brief filed before either of his codefendants submitted their briefs,
Hartsfield expressly raises the issues set forth above, but wishes to adopt the brief Pickett filed in
his appeal and all “common issues” of the codefendants.
        Federal Rule of Appellate Procedure 28 states, “In a case involving more than one
appellant or appellee, including consolidated cases, any number of appellants or appellees may
join in a brief, and any party may adopt by reference a part of another’s brief.” Fed. R. App. P.
28(i). According to our local rules, parties wishing to adopt any part of the brief of another party
“shall include a statement describing in detail which briefs and which portions of those briefs are
adopted.” 11th Cir. R. 28-1. Normally, defendants, in non-consolidated appeals, may not
automatically adopt and rely on briefs of another case unless they separately move for adoption
and the motion is granted. United States v. Bichsel, 156 F.3d 1148, 1150 n.1 (11th Cir. 1998).
However, a defendant, in a consolidated appeal, may adopt a codefendant’s argument by specific
reference in the initial appellate brief. United States v. Gray, 626 F.2d 494, 497 (5th Cir. 1980).
Sufficiency arguments are “too individualized to be generally adopted.” United States v.
Cooper, 203 F.3d 1279, 1285 n.4 (internal quotations marks and citation omitted).

                                                  9
sufficiency of the evidence because it is “incredible as a matter of law.” Gonzalez

argues that the evidence was insufficient for the jury to find beyond a reasonable

doubt that he was predisposed to commit the charged crimes and therefore reject

his entrapment defense.

       A claim that the evidence was insufficient to convict is reviewed de novo.

United States v. Nolan, 223 F.3d 1311, 1314 (11th Cir. 2000). To determine

whether appellants’ convictions should stand, we view the evidence in the light

most favorable to the government and affirm, based on this evidence, “any rational

trier of fact could have found the essential elements of the crime [at issue] beyond

a reasonable doubt.” Id. (internal citation and quotation marks omitted). We will

not disturb the district court’s denial of appellants’ motions for a judgment of

acquittal unless there is no reasonable construction of the evidence under which the

jury could have found guilt beyond a reasonable doubt. United States v. Garcia,

405 F.3d 1260, 1269 (11th Cir. 2005).

       Determinations of credibility of witnesses fall within the exclusive province



        In this case, Hartsfield did not properly adopt the arguments of either Pickett or Gonzalez
because he did not designate the pages of any briefs that he wished to adopt or otherwise
describe in detail the portions that he wished to adopt. See 11th Cir. R. 28-1. Moreover, Pickett
only raises sufficiency of the evidence claims, which are “too individualized to be generally
adopted.” See Cooper, 203 F.3d at 1285. Nevertheless, the technical failure to adopt his
codefendants’ sufficiency of the evidence arguments is not critical because Hartsfield raises such
an issue on his own.


                                                10
of the jury and may not be revisited unless the testimony is “incredible as a matter

of law.” United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997). “For

testimony of a government witness to be incredible as a matter of law, it must be

unbelievable on its face.” Id. (internal quotation marks and citation omitted). The

testimony must consist of facts that the witness physically could not have possibly

observed or “events that could not have occurred under the laws of nature.” Id.

The fact that a witness thought that the witness lied in the past or thought that the

testimony would benefit him does not make the testimony incredible. Id. Even the

uncorroborated testimony of a single accomplice may support a conviction, if the

testimony is not on its face incredible or otherwise insubstantial. United States v.

Sabin, 526 F.2d 857, 859 (5th Cir. 1976).

      Hartsfield asks us to disregard Guerrero’s testimony as not credible. If we

do that, he submits, we must set aside his convictions for lack of sufficient

evidence. We cannot say that Guerrero’s testimony was “not incredible as a matter

of law” because, even though it contradicted testimony of another witness, the

testimony was not “unbelievable on its face.” See Calderon, 127 F.3d at 1325.

The jury was free to make its own credibility determinations based on the

competing evidence, see id., and apparently believe much of what Guerrero had to

say. With the foregoing principles in mind, we consider whether the government’s



                                           11
cases against Pickett and Hartsfield were sufficient to withstand their motions for

judgment of acquittal.4

                                                1.

       As to the Hobbs Act conspiracy charge in Count 3, Guerrero testified that

Pickett and Hartsfield knew about the conspiracy, as they discussed the robbery in

the vehicle on the way to meeting Garcia. Further, Guerrero testified that Pickett

and Hartsfield agreed to go inside the house with firearms and grab the cocaine.

Additionally, the jury was entitled to infer from Pickett’s post-arrest statement to

Alameda asking, “What about the dope,” and Alameda’s response, “There was

never no dope,” that Pickett knew the goal of the conspiracy was to commit a

robbery for cocaine. The interstate nexus was sufficient because, as in Taylor, the

conspiratorial aim was to rob a stash house of a narcotics organization. See Taylor,

480 F.3d at 1027. Thus, there was sufficient evidence for the jury to find that

Pickett and Hartsfield knowingly agreed to participate in a narcotics robbery.

       Regarding the attempted Hobbs Act robbery charged in Count 4, the

evidence shows that Pickett and Hartsfield acted with the kind of culpability

required to commit a robbery and that they engaged in substantial steps toward the



       4
           At this juncture, we acknowledge that Hartsfield seeks a new trial on the ground that
the district court’s cumulative errors denied him a fair trial. His cumulative-error argument is
frivolous and therefore requires no further comment.

                                                12
commission of the robbery. Pickett and Hartsfield met Garcia at a prearranged

location and time and traveled to a warehouse where they were supposed to

retrieve a vehicle that they would use to hide the cocaine. Garcia was then

supposed to take them to the stash house. Additionally, law enforcement agents

seized brass knuckles in a compartment near Pickett’s seat and three black

stockings from Hartsfield’s pockets. Considering these facts, a reasonable juror

could find that Pickett and Hartsfield attempted to commit a narcotics robbery.

                                         2.

      Picket was not convicted on the § 924(c)(1) firearm charge of Count 5, but

Hartsfield was. The evidence against him was overwhelming. The police

recovered an assault rifle and handguns in Garcia’s vehicle, in which he was a

passenger. Guerrero testified that, while on the way to the robbery, Hartsfield

discussed using one of the handguns to steal the cocaine. He had constructive

possession of the handgun because he was not only physically near the gun, but he

also had the power and intent to use it. Given Guerrero’s testimony, the jury

apparently found that there was a nexus between Hartsfield’s constructive

possession of the handgun and the attempted drug robbery.

                                         3.

      Hartsfield (and Gonzalez) were charged in Count 6 with the § 922(g)(1)



                                         13
offense. Hartsfield stipulated that (1) he was a convicted felon and (2) that the

firearm was in or affected interstate commerce; thus, the only element at issue was

whether he knowingly possessed a firearm. In light of our discussion in subpart 2

above, we must conclude that there was sufficient evidence for the jury to convict

Hartsfield on Count 6.

                                          4.

      Gonzalez sole attack on the sufficiency of the evidence is that the

government failed as a matter of law to establish his predisposition to engage in the

criminal activity alleged in the indictment. Put another way, the court should have

granted him judgment of acquittal on the basis of his entrapment defense. At trial,

he testified that he knew about the attempted robbery plan, but stated that he only

joined in the plan because Garcia threatened him.

      We review a jury’s rejection of an entrapment defense de novo, viewing all

of the evidence and inferences in favor of the government. United States v.

Francis, 131 F.3d 1452, 1456 (11th Cir. 1997). Our review is limited to

determining whether the government presented sufficient evidence to the jury for it

reasonably to have concluded that the defendant was predisposed to take part in the

crime. Id. We cannot overturn the jury’s verdict if there is any reasonable

construction of the evidence that would allow the jury to have found the defendant



                                          14
guilty beyond a reasonable doubt. Id. If, as here, the defendant testifies, the jury

may conclude that the opposite of the testimony is true and use the statement as

substantive evidence of his guilt. United States v. Brown, 53 F.3d 312, 314 (11th

Cir. 1995).

       An affirmative defense of entrapment consists of two elements:

(1) government inducement of the crime; and (2) lack of predisposition on the part

of the defendant to commit the crime. United States v. Ryan, 289 F.3d 1339, 1343

(11th Cir. 2002). “[T]he defendant bears the initial burden of production as to

government inducement; once the defendant meets this burden, the burden shifts to

the government to prove beyond a reasonable doubt that the defendant was

predisposed to commit the crime.” Id. “Predisposition is a fact intensive inquiry

into the defendant’s readiness and willingness to engage in the crime absent any

contact with the government’s officers or agents.” Francis, 131 F.3d at 1456.

      Predisposition may be demonstrated by the following: (1) the defendant’s

ready commission of the charged crime; and (2) evidence that the defendant had

the opportunity to back out of the illegal transaction, but failed to do so. United

States v. Miller, 71 F.3d 813, 816 (11th Cir. 1996).

      Here, the evidence clearly demonstrated Gonzalez’s predisposition to

commit the charged crimes: Gonzalez participated in a meeting to discuss the



                                          15
robbery plans on July 5, 2007, and he failed to back out of the plans by the day of

the planned robbery, July 13. On July 13, he rode with his co-conspirators to meet

Garcia, who was supposed to escort them to the stash house. Upon meeting him,

Gonzalez removed a handgun from his waistband and concealed it underneath his

seat in Garcia’s vehicle. He also asked his co-conspirators whether he would have

to beat someone during the robbery. After his arrest, Gonzalez initially told the

police that he was on his way to a strip club, but later confessed that he was going

to commit a robbery. Law enforcement officers seized numerous items from

Garcia’s vehicle, including an AK-47 assault rifle, ammunition, a bayonet, a pistol,

a handgun, a black scarf, camouflage gloves, and a bandana. They recovered a

stun gun and knife from Gonzalez’s person.

      In addition, Gonzalez’s previous conviction for possession of marijuana,

although not dispositive, was relevant in showing a predisposition for committing

drug offenses. Even though he did not have a prior firearms conviction, the jury

was entitled to infer that he was willing to carry a firearm and use the firearm

during the robbery based on surveillance tapes taken from Garcia’s vehicle

showing him removing a handgun from his possession. See Miller, 71 F.3d at

816-17.

      Moreover, Gonzalez testified that he felt threatened by Garcia to participate



                                          16
in the robbery, but the jury was free to believe that the exact opposite was true.

See Brown, 53 F.3d at 314. Since there was sufficient evidence to prove

Gonzalez’s predisposition to commit the crimes charged, it is unnecessary to

discuss whether Gonzalez produced evidence of inducement.

                                             II.

                                             A.

       Hartsfield argues that the district court infringed his Fifth and Sixth

Amendment rights by enhancing his Count 6 sentence under § 924(e) and U.S.S.G.

§ 4B1.3(a), without having the underlying convictions alleged in the indictment

and found by the jury beyond a reasonable doubt.

       The armed career criminal guideline states, “A defendant who is subject to

an enhanced sentence under the provisions of 18 U.S.C. § 924(e) is an armed

career criminal.” U.S.S.G. § 4B1.4(a). Section 924(e)(1) provides that “a person

who violates section 922(g) of this title and has three previous convictions by any

court . . . for a violent felony or a serious drug offense, or both . . . shall

be . . . imprisoned not less than fifteen years.” 18 U.S.C. § 924(e)(1).

       In Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140

L.Ed.2d 350 (1998), the Supreme Court held that the indictment need not allege

and the jury need not find beyond a reasonable doubt that the defendant had prior



                                             17
convictions in order to enable the district court to use those convictions to enhance

his sentence. Id., 523 U.S. at 226-27, 118 S.Ct. at 1222. “[The] contention that the

district court lacked the authority to sentence [the defendant] as an armed career

criminal because he did not admit in his guilty plea to the facts necessary to being

one is foreclosed by Almendarez-Torres . . . .” United States v. Johnson, 528 F.3d

1318, 1322 (11th Cir. 2008). The Supreme Court in Apprendi explicitly declined

to overrule Almendarez-Torres. Apprendi v. New Jersey, 530 U.S. 466, 490, 120

S.Ct. 2348, 2363, 147 L.Ed.2d 435 (2000). Further, in United States v. Shelton,

400 F.3d 1325 (11th Cir. 2005), we held that the decision in Almendarez-Torres

was “left undisturbed by Apprendi, Blakely,5 and Booker,6” 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 the indictment did not have to allege and the jury did not have to

find beyond a reasonable doubt that Hartsfield had the prior convictions at issue,

the district court was authorized to use those convictions to enhance his sentence

under § 924(e) and U.S.S.G. §4B1.4.

                                              B.



      5
          Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
      6
          United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

                                              18
       Hartsfield argues that the district court erred in refusing to apply a two-level

minor-role reduction under U.S.S.G. § 3B1.2(b) in determining his sentence range

under the Sentencing Guidelines. A district court’s determination of a defendant’s

role in an offense constitutes a factual finding to be reviewed only for clear error.

United States v. Rodriguez De Varon, 175 F.3d 930, 937 (11th Cir. 1999). The

defendant bears the burden of proving by a preponderance of the evidence that he

is entitled to a mitigating role reduction. Id. at 939.

       The Guidelines provide for a two-level reduction for a minor participant,

which is a defendant “who is less culpable than most other participants, but whose

role could not be described as minimal.” U.S.S.G. § 3B1.2 and comment. (n. 5).

The district court applies a two-part analysis to determine whether to award a

downward adjustment. Rodriguez De Varon, 175 F.3d at 940-41. The court first

determines the defendant’s role in the criminal activity and next compares the

defendant’s conduct to that of his cohorts. Id. at 940-41, 944; see also U.S.S.G. §

3B1.2, comment. (n.3). These factual inquiries “are properly consigned to the

experienced discretion of the district judge.” Rodriguez De Varon, 175 F.3d at

938.

       Here, the district court did not clearly err by denying Hartsfield a minor-role

reduction because the record shows that he did not play a minor role. He drove



                                           19
Alameda’s vehicle to meet Garcia, while the vehicle was loaded with firearms and

ammunition. Hartsfield’s role was to go inside the warehouse with Pickett and

steal the cocaine.

                                          C.

      Hartsfield argues that the district court erred in refusing to grant a downward

departure from the Guidelines sentence range for having a diminished capacity due

to his mental incapacity under U.S.S.G. § 5K2.13. Section 5K2.13 provides that

court may depart downward from the defendant’s prescribed sentence if the

defendant “was suffering from a significantly reduced mental capacity.” U.S.S.G.

§ 5K2.13. “We may not review a district court’s refusal to grant a downward

departure unless the court mistakenly believed that it lacked the authority to grant

such a departure.” United States v. Hansen, 262 F.3d 1217, 1256 (11th Cir. 2001);

see also United States v. Fossett, 881 F.2d 976, 979-80 (11th Cir. 1989) (holding

that we cannot review a district court’s refusal to grant a downward departure

unless the court erred in concluding it did not have authority to depart).

      Our review of the district court’s decision to deny Hartsfield a downward

departure for a reduced mental capacity is precluded because Hartsfield does not

allege and the record does not show that the district court mistakenly believed that

it lacked the authority to grant a downward departure for a reduced mental



                                          20
capacity.

                                             D.

       Hartsfield does not challenge the district court’s calculation of the

Guidelines sentence range for any of the Counts of conviction, but he argues that

his combined sentences of 360-months’ imprisonment are unreasonable given the

nature and circumstances of the offense and his history and characteristics.7 As

Hartsfield properly notes, we review sentences under the Guidelines for

reasonableness. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).8 “Our



       7
           See supra note 1. The consecutive sentence of 60 months on Count 5 was mandated by
law, 18 U.S.C. § 924(c)(1)(A)(i) and (D)D(ii). The minimum sentence on Count 6 was 180
month as prescribed by statute, 18 U.S.C. § 924(e)(1). The court chose to make 60 months of
that minimum sentence consecutive to the sentences on Counts 3 and 4. In sum, under these
statutes, the court had to sentence Hartsfield to 180 months on Count 6 and a consecutive 60
months on Count 5, for a total of 240 months on those two counts. The term of imprisonment
for Counts 3 and 4 was 0 to 20 years’ imprisonment, 18 U.S.C. § 1951(a). The Guideline
governing the Hobbs Act convictions, Counts 3 and 4, was provided by U.S.S.G. § 2B1.3. The
Guideline governing Count 6 was provided by U.S.S.G. § 2K2.1. The district court grouped
these three counts together pursuant to U.S.S.G. § 3D1.2(b). The court held Hartsfield
accountable for 70 kilograms of cocaine. Therefore, the Guideline providing the base offense
level was U.S.S.G. § 2D1.1 via § 2X1.1. Under § 2D1.1(a)(3), an offense involving at least 50
kilograms but less than 150 kilograms of cocaine had a base offense level of 36. Hartsfield’s
criminal history category was VI. Coupled with an offense level of 36, this yielded a sentence
range for Counts 3, 4 and 6 of 324 to 405 months’s imprisonment.
       8
         Booker did not change a district court’s obligation to follow statutory mandatory
minimum sentences. See Shelton, 400 F.3d at 1333 n. 10. When a district court correctly
imposes a statutory mandatory minimum sentence, any error in the Guidelines calculation is
harmless, and we need not address the error. United States v. Raad, 406 F.3d 1322, 1323 n. 1.
Thus, we acknowledge that Hartsfield’s reasonableness argument does not apply to his
mandatory minimum sentence for carrying a firearm during a drug trafficking crime (“Count 5”).


                                              21
review for reasonableness is deferential, and the party challenging the sentence has

the burden of establishing unreasonableness.” Id. Sentencing decisions are

reviewed for an abuse of discretion. Gall v. United States, 552 U.S. ___, ___, 128

S.Ct. 586, 597, 169 L.Ed.2d 445 (2007).

       A sentence may be procedurally unreasonable if the district court improperly

calculates the guideline range, treats the guidelines as mandatory rather than

advisory, fails to consider the appropriate 18 U.S.C. § 3553(a) sentencing factors,

selects a sentence based on clearly erroneous facts, or fails to explain adequately

the chosen sentence. Id. After we have determined that the sentence is

procedurally sound, Gall directs us to review the substantive reasonableness of the

sentence under an abuse-of-discretion standard. Id. The review for substantive

reasonableness involves examining the totality of the circumstances, including the

extent of any variance from the Guidelines sentence range. Id. “The fact that the

appellate court might reasonably have concluded that a different sentence was

appropriate is insufficient to justify reversal of the district court.” Id.

       Post Booker, district courts first must correctly calculate and consult the

guideline range, and second, must consider the § 3553(a) factors. United States v.

Talley, 431 F.3d 784, 786 (11th Cir. 2005). The § 3553(a) factors include: (1) the

nature and circumstances of the offense and the history and characteristics of the



                                            22
defendant; (2) the need to reflect the seriousness of the offense, to afford adequate

deterrence, to promote respect for the law, to provide just punishment for the

offense, to protect the public, and to provide the defendant with needed educational

or vocational training or medical care; (3) the kinds of sentences available; (4) the

Sentencing Guidelines’ range; (5) pertinent Sentencing Commission policy

statements; (6) the need to avoid unwarranted sentencing disparities among

similarly situated defendants with similar records; and (7) the need to provide

restitution to victims. See 18 U.S.C. § 3553(a)(1)-(7).

      In its consideration of the § 3553(a) factors, the district court need not

discuss each factor explicitly. Talley, 431 F.3d at 786. “[A]n acknowledgment by

the district court that it has considered the defendant’s arguments and the factors in

section 3553(a) is sufficient under Booker.” Id. Further, “[t]he 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 [its] judgment in weighing the

relevant factors.” United States v. Amedeo, 487 F.3d 823, 832 (11th Cir.), cert.

denied, 128 S.Ct. 671 (2007).

      Hartsfield has abandoned any challenge to the district court’s sentence range

calculations, as he assumes the ranges were correct. Sepulveda v. U.S. Att’y Gen.,

378 F.3d 1260, 1262 n.1 (11th Cir. 2004) (holding that “[w]hen an appellant fails



                                          23
to offer argument on an issue, that issue is abandoned”). His sentences are

otherwise procedurally reasonable, as the record indicates the district court

considered his sentence ranges as advisory and considered the sentencing factors of

§ 3553(a). In particular, the record shows the court considered Hartsfield’s history

and characteristics.

      Likewise, Hartsfield’s sentences are substantively reasonable given his

criminal history and his intended role in the offense. Hartsfield faced a statutory

maximum sentence of life imprisonment for all counts, but the district court only

sentenced him to a total of 360-months’ imprisonment, the bottom of the

applicable sentence range. Therefore, the record supports the district court’s

conclusion that sentences totaling 360 months was appropriate.

                                         III.

      We affirm the convictions of Gonzalez, Hartsfield, and Pickett, and the

sentences Hartsfield received. We vacate in part, however, and remand the district

court’s judgment in Gonzalez’s case for correction in accordance with this opinion.

      AFFIRMED, in part; VACATED, in part, and REMANDED, with

instructions.




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