                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                        FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________  ELEVENTH CIRCUIT
                                                     FEB 2, 2007
                                                 THOMAS K. KAHN
                            No. 06-13079
                                                       CLERK
                         Non-Argument Calendar
                       ________________________

                     D. C. Docket No. 05-00012-CR-4

UNITED STATES OF AMERICA,


                                                           Plaintiff-Appellee,

                                  versus

DONALD LEE UBELE,
a.k.a. Duck,

                                                        Defendant-Appellant.


                       ________________________

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

                            (February 2, 2007)


Before BLACK, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
      Donald Lee Ubele appeals his convictions and sentences for possession of

firearms by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and

924(e)(1), and possession of an unregistered machine gun, in violation of 26

U.S.C. §§ 5861(d) and 5871. Ubele asserts four grounds for appeal, which we

address in turn.

                                 I. DISCUSSION

A. Sixth Amendment

      First, Ubele contends the district court erred in enhancing his sentence

pursuant to the Armed Career Criminal Act (ACCA) based on prior convictions

that were neither charged in the indictment nor proven to a jury beyond a

reasonable doubt, in violation of his Sixth Amendment rights.

      We review properly preserved constitutional claims de novo, but reverse

only for harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).

In Almendarez-Torres v. United States, 118 S. Ct. 1219 (1998), the Supreme Court

held prior convictions could be considered and used to enhance a defendant’s

sentence without having been alleged in the indictment or proven beyond a

reasonable doubt. 118 S.Ct. at 1231-33. Subsequent decisions, namely, Apprendi

v. New Jersey, 120 S. Ct. 2348 (2000), Blakely v. Washington, 124 S. Ct. 2531

(2004), and United States v. Booker, 125 S. Ct. 738 (2005), have not disturbed that

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holding. United States v. Camacho-Ibarquen, 410 F.3d 1307, 1316 (11th

Cir.), cert. denied, 126 S. Ct. 457 (2005). “Although recent decisions, including

Shepard v. United States, 125 S. Ct. 1254 (2005), may arguably cast doubt on the

future prospects of Almendarez-Torres’s holding regarding prior convictions, the

Supreme Court has not explicitly overruled Almendarez-Torres. As a result, we

must follow Almendarez-Torres.” Camacho-Ibarquen, 410 F.3d at 1316 n.3.

      The district court did not violate Ubele’s Sixth Amendment rights when it

enhanced his sentence based on his prior convictions. Whether a district court can

enhance a sentence based on prior convictions neither alleged in the indictment

nor proven beyond a reasonable doubt survives on the continued vitality of

Almendarez-Torres.

B. Qualifying Prior Convictions

      Second, Ubele asserts the district court erred in designating him as an armed

career offender because the record did not support that he had three prior

convictions to qualify him as an armed career criminal. Specifically, Ubele argues

that two of the alleged qualifying prior convictions do not constitute separate

offenses. According to Ubele, therefore, the Government failed to prove the

existence of the prior convictions by a preponderance of the evidence.




                                         3
      As an initial matter, we note Ubele’s objection was to the fact of having

three convictions, not to the character of the convictions. Thus, Shepard v. United

States, 125 S. Ct. 1254 (2005), which limits the sources a district court may

consider when looking at the underlying facts of a prior conviction, does not

apply. See United States v. Cantellano, 430 F.3d 1142, 1147 (11th Cir. 2005),

cert. denied, 126 S. Ct. 1604 (2006). By contrast, “[t]he fact of a prior conviction

clearly may be found by the district court.” Id. (emphasis added). Thus, the

district court did not err in relying on the PSI to determine whether Ubele had

three prior convictions.

      To qualify as an armed career criminal, the defendant must violate 18

U.S.C. § 922(g) and have “three previous convictions by any court . . . for a

violent felony or a serious drug offense, or both, committed on occasions different

from one another.” 18 U.S.C. § 924(e)(1). Enhancement under the statute requires

three temporally distinct crimes, but convictions need not be obtained on separate

occasions. United States v. Jackson, 57 F.3d 1012, 1018 (11th Cir. 1995). “[S]o

long as predicate crimes are successive rather than simultaneous, they constitute

separate criminal episodes for purposes of the ACCA.” United States v. Pope, 132

F.3d 684, 692 (11th Cir. 1998).




                                          4
      A preponderance of the evidence supports that Ubele had three separate

convictions for the purposes of the ACCA. According to the PSI, Ubele’s

indictment showed that Ubele was charged with distributing cocaine on January

13, 1989, and with trafficking in cocaine on January 19, 1989.1 The PSI further

stated that pursuant to a plea agreement, Ubele was ultimately allowed to plead

guilty to two counts of possession of a controlled substance with intent to

distribute. Ubele submitted no evidence to rebut the PSI. Although the January

13, 1989, and January 17, 1989, crimes were charged in the same indictment and

sentenced at the same time, they are two separate criminal episodes for purposes of

the ACCA because the crimes were successive rather than simultaneous. See

Pope, 132 F.3d at 692, Jackson, 57 F.3d at 1018. Thus, a preponderance of the

evidence supports there were two separate crimes and the district court did not err

in applying the ACCA to enhance Ubele’s sentence.

C. Continuous Possession

      Third, Ubele contends the evidence presented at trial was not sufficient to

establish he had dominion and control over the firearms alleged in the indictment




      1
          Ubele does not contest the third conviction used in determining his eligibility for the
ACCA.

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and he did not possess the firearms through January 27, 2005, or at any time

reasonably near that date, as alleged in the indictment.

      “[W]e review de novo whether there is sufficient evidence to support the

jury’s verdict.” United States v. Ortiz, 318 F.3d 1030, 1036 (11th Cir. 2003). We

will affirm the jury’s verdict “if a reasonable trier of fact could conclude that the

evidence establishes guilt beyond a reasonable doubt.” Id. (quotation omitted). On

review, the evidence is viewed “in the light most favorable to the government,

with all reasonable inferences and credibility choices made in the government’s

favor.” Id. (quotation omitted).

      “Under 18 U.S.C. § 922(g)(1), it is unlawful for a felon to possess a firearm.

Section 922(g)(1) required the government to prove ‘three distinct elements:’

(1) that [Ubele] was a convicted felon; (2) that [Ubele] knew he was in possession

of a firearm; and (3) that the firearm affected or was in interstate commerce.”

United States v. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004). “Possession can

be shown by circumstantial as well as direct evidence. . . . [and] . . . can be either

actual or constructive[.]” United States v. Crawford, 906 F.2d 1531, 1535 (11th

Cir. 1990). “A defendant has constructive possession if he exercises ownership,

dominion, or control over the firearm. A defendant also has constructive

possession if he has the power and intention to exercise dominion or control. The

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defendant may exercise that dominion and control either directly or through

others.” United States v. Gunn, 369 F.3d 1229, 1235 (11th Cir. 2004) (citations

omitted). Further, we have held that “possession is a course of conduct . . . . Proof

of possession of a firearm as a convicted felon on one day within an alleged

continuous possession is sufficient to support a conviction.” United States v.

Rivera, 77 F.3d 1348, 1351 (11th Cir. 1996) (quotation omitted).

      At trial, Ubele stipulated that he was a convicted felon. Ubele and his

cousin, Chadwick Graham, purchased two gun safes from the Bass Pro Shop in

Savannah, Georgia for the purpose of storing their collected guns. Ubele

possessed the combination to access at least one of these safes. Ubele originally

stored the safes at Graham’s house and later moved the safes to a house belonging

to his girlfriend’s mother. Ubele accessed the safes to check and clean the guns.

Ubele also added another gun to the cache. None of the guns found in the safe

were manufactured in Georgia and all of the guns had traveled in interstate or

foreign commerce before Ubele took them into his possession. Further, the

evidence demonstrates Ubele knew the combinations needed to open the safes

through January 27, 2005, when he refused to disclose them to law enforcement

authorities. Accordingly, viewing the evidence in the light most favorable to the

Government, we conclude there was sufficient evidence to convict Ubele.

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D. Constructive Amendment

      Fourth, Ubele asserts the district court’s jury instruction permitted the jury

to find him guilty without finding the Government proved the element of

continuous possession beyond a reasonable doubt and impermissibly broadened

the bases for conviction beyond what was alleged in the indictment.

      We perform a de novo review of jury instructions when the objecting party

claims that prejudice was caused by instructions that either misstated the law or

misled the jury. United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002).

In determining whether the given instructions reflected the law accurately, we

afford the district court wide discretion as to the style and wording employed in

the instructions. Id. The examination we undertake is to determine whether the

court’s charge, “considered as a whole, sufficiently instructs the jury so that the

jurors understand the issues involved and are not misled.” United States v. Shores,

966 F.2d 1383, 1386 (11th Cir. 1992) (quotation omitted).

      “An amendment to an indictment occurs when the essential elements of the

offense contained in the indictment are altered to broaden the possible bases for

conviction beyond what is contained in the indictment.” United States v. Dennis,

237 F.3d 1295, 1299 (11th Cir. 2001) (quotation omitted). “A court’s jury

instruction that constructively amends an indictment constitutes reversible error

                                          8
per se because the instruction violates a defendant’s Fifth Amendment right to be

tried only on charges presented by a grand jury and creates the possibility that the

defendant may have been convicted on grounds that the indictment did not allege.”

United States v. Behety, 32 F.3d 503, 508 (11th Cir. 1994).

      The court properly instructed the jury the Government need only prove

beyond a reasonable doubt the offense was committed “on a date reasonably near

the date alleged” in the indictment, that is, January 27, 2005. On January 27,

2005, Ubele admitted to law enforcement authorities he knew the combinations

needed to open the safes and refused to disclose them. This fact supports a finding

on January 27, 2005, Ubele was able to access the guns stored in the safes and

exercised dominion and control over them. Accordingly, the district court’s

instruction to the jury did not constructively amend the indictment because it

would not have allowed the jury to convict Ubele on a charge other than those

alleged in the indictment.




                                          9
                               II. CONCLUSION

      The district court did not err in enhancing Ubele’s sentence pursuant to the

ACCA. Additionally, there was sufficient evidence to convict Ubele, and the

district court’s jury instruction was proper. We affirm Ubele’s convictions and

sentences.

      AFFIRMED.




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