                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                      FILED
                         ________________________          U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                  July 19, 2006
                               No. 05-15061                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                   D. C. Docket No. 04-00281-CR-1-MHS-1

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

WILLIE ROY ALLEN,

                                                            Defendant-Appellant.


                         ________________________

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

                                (July 19, 2006)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     A Northern District of Georgia jury convicted appellant of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g), and the district court,

acting pursuant to 18 U.S.C. § 924(e) (the “Armed Career Criminal Act”),

sentenced him to prison for the mandatory minimum prison term prescribed by that

statute, 180 months. He now appeals his conviction and sentence, raising the

following claims of error:

      1. Section 922(g) constitutes an unconstitutional exercise of Congressional

authority under the Commerce Clause; therefore, the district court should have

dismissed the indictment;

      2. The district court admitted the hearsay testimony of two witnesses in

derogation of the hearsay rule and Crawford v. Washington, 541 U.S. 36, 124 S.Ct.

1354, 158 L.Ed.2d 177 (2005); and

      3. The district court erred in refusing to strike from the indictment the

reference to § 924(e), and in sentencing appellant under that statute because a jury

(in the instant case) had not found the crimes (that made up his criminal history)

beyond a reasonable doubt.

      We find no merit in these claims and accordingly affirm appellant’s

conviction. Appellant’s first ground for reversal is foreclosed by our decision in

United States v. McAllister, 77 F.3d 387 (11th Cir. 1996).

      Appellant’s second ground for reversal concerns the testimony of Lt. Mann



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of the Atlanta Police Department and the expert opinion testimony of Special

Agent Torp of the Bureau of Alcohol, Tobacco, Firearms, and Explosives. On

direct-examination, Lt. Mann testified that during his confrontation with appellant,

a pistol, which appellant pulled out of his pocket, flew out of appellant’s hand onto

the sidewalk. On cross-examination, appellant’s counsel had Mann read from the

narrative section of the report of the incident written by Officer Magrum (who

arrived at the scene following appellant’s apprehension) after interviewing Mann

and others. Mann read the following: “The arrestee attempted to throw the gun

over toward the witnesses.” Mann asserted that he did not know where Magrum

got that information, so he could not testify to its accuracy. On re-direct, the

prosecutor asked Mann to read the last sentence of the narrative section of the

report, which showed that Magrum’s conclusion that appellant had thrown the gun

was based on statements from witnesses, none of whom was Lt. Mann. Appellant

objected, arguing that the last sentence of the report constituted hearsay and thus

was barred by Crawford. The court overruled the objection, and the challenged

sentence was read to the jury. The sentence was not hearsay; it was not being used

to prove that appellant threw the pistol but, instead, to show that Magrum’s report

was based on Magrum’s interview of several witnesses, not Lt. Mann.

      Agent Torp testified as an expert witness, basing his opinion on his



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education, training, knowledge, and personal experience. Appellant objected on

hearsay and Crawford grounds to Torp’s opinion as to where the pistol was

manufactured because the opinion was based in part on the statement of another

ATF special agent – who had consulted the records the manufacturer of the pistol

had placed on file with the ATF. The court overruled appellant’s objection. We

find no error. Experts may rely on hearsay if it is of the type of evidence

reasonably relied on by experts in the particular field. In this instance, it was

reasonable for Torp to rely on what the other agent told him. But that is not all that

Torp relied on to say that the pistol had traveled in interstate commerce. He based

his opinion as well on the markings on the gun, his personal knowledge concerning

the manufacture and distribution of guns, and his review of industry-wide

publications, including The Blue Book of Gun Values.

      Appellant’s third claim is based on the notion that the Sixth Amendment

required that his prior convictions – which the court used to classify appellant as an

armed career criminal – be alleged in the indictment and established by the jury

beyond a reasonable doubt. His position has been rejected by a host of decisions

from the Supreme Court and the courts of appeals. Moreover, he concedes that a

prior panel has ruled explicitly against his position. See United States v. Gipson,

434 F.3d 1234 (11th Cir. 2006). In sum, he recognizes, as he must, that he was



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sentenced under an advisory guidelines system to a mandatory minimum sentence

that was below the guidelines sentence range and that the Sixth Amendment did

not bar the district court from using his prior convictions to treat him as a armed

career criminal.

      AFFIRMED.




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