         Case: 14-13990     Date Filed: 07/02/2015   Page: 1 of 11


                                                      [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-13990
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 9:14-cr-80048-DMM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

KEITH TAYLOR,

                                                          Defendant-Appellant.

                       ________________________

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

                               (July 2, 2015)
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Before HULL, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM:

         Keith Taylor appeals his convictions and 276-month total sentence for being

a felon in possession of a firearm and ammunition, and possession of cocaine with

intent to distribute. He raises five issues on appeal, which we address in turn.

After review, we affirm Taylor’s convictions and sentence.

                                    I. DISCUSSION

         As the parties are familiar with the facts of this case, we will not recount

them in detail. We include only those facts necessary to the discussion of each

issue.

A. Motion to Suppress

         First, Taylor contends the district court erred by denying his request for an

evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), because

he sufficiently alleged the warrant affidavit omitted information about the

reliability of a confidential informant (CI). He also asserts the affidavit did not

adequately distinguish which unit in the duplex was the target of the search.

         “A Franks hearing is warranted where a defendant ‘makes a substantial

preliminary showing’ that an affiant made intentionally false or recklessly

misleading statements (or omissions), and those statements are ‘necessary to the

finding of probable cause.’” United States v. Barsoum, 763 F.3d 1321, 1328 (11th


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Cir. 2014) (quoting Franks, 438 U.S. at 155-56). Generally, if an informant is

mentioned in a warrant affidavit, “the affidavit must also demonstrate the

informant’s veracity and basis of knowledge.” United States v. Martin, 297 F.3d

1308, 1314 (11th Cir. 2002) (quotation omitted).

      While it is true the warrant affidavit did not contain any information

regarding the past reliability of the CI used to conduct the controlled buys, it was

not required to include this information because the CI’s report about purchasing

the cocaine was independently corroborated. See Martin, 297 F.3d at 1314 (stating

if an informant’s tip is sufficiently independently corroborated, no need exists to

establish the veracity of the informant). Each controlled buy was monitored by

law enforcement officers, who searched the CI ahead of time and conducted audio

surveillance of each buy.

      Additionally, the affidavit contained a detailed description of the building

and the unit within the building that was the target of the investigation: the

northern-most unit of the northern-most building with a white door, red step, and

north facing secondary entrance. Further, Taylor did not make any allegation,

much less a substantial showing, that any alleged omissions were intentional or

reckless. Accordingly, the district court did not abuse its discretion in declining to

hold a Franks hearing, see Barsoum, 763 F.3d at 1328 (explaining abuse of

discretion review is appropriate in reviewing a district court’s denial of a Franks


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hearing), or err in denying Taylor’s motion to suppress, United States v. Watkins,

760 F.3d 1271, 1282 (11th Cir. 2014) (“We review a district court's denial of a

motion to suppress evidence for clear error as to factual findings and de novo as to

its application of the law.”).

B. 404(b)

      Second, Taylor contends the district court erred by allowing into evidence

his prior drug trafficking conviction. He asserts the conviction was not probative

of intent, and was, therefore, inadmissible character evidence. He argues the

evidence was more prejudicial than probative, particularly because the conviction

was nine years old, and there was no limiting instruction given.

      “Evidence of a crime, wrong, or other act is not admissible to prove a

person’s character in order to show that on a particular occasion the person acted in

accordance with the character.” Fed. R. Evid. 404(b)(1). But such evidence “may

be admissible for another purpose, such as proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

Id. 404(b)(2). To be admissible, evidence of a prior act must (1) be relevant to an

issue other than the defendant’s character, (2) be sufficiently proven to allow a jury

to find the defendant committed the prior act, and (3) have probative value that is

not substantially outweighed by the risk of unfair prejudice. United States v.




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Sanders, 668 F.3d 1298, 1314 (11th Cir. 2012). Rule 404(b) is a rule of inclusion

allowing “extrinsic evidence unless it tends to prove only criminal propensity.” Id.

       Extrinsic evidence is relevant to show intent—thus satisfying the first prong

of Rule 404(b) admissibility—if the state of mind required for the charged and

extrinsic offenses is the same. United States v. Edouard, 485 F.3d 1324, 1345

(11th Cir. 2007). A conviction is sufficient proof that a defendant committed the

extrinsic act and satisfies the second prong of the test. United States v. Jernigan,

341 F.3d 1273, 1282 (11th Cir. 2003). In making a determination on the final

prong, the district court has broad discretion to make “a common sense assessment

of all the circumstances surrounding the extrinsic offense, including prosecutorial

need, overall similarity between the extrinsic act and the charged offense, [and]

temporal remoteness.” Id. (quotation omitted).

      Taylor pleaded not guilty to charges of possession with intent to distribute,

and made his intent a material issue. See Edouard, 485 F.3d at 1345 (entering a

not guilty plea “makes intent a material issue” and “imposes a substantial burden

on the government to prove intent, which it may prove [using] qualifying Rule

404(b) evidence absent affirmative steps by the defendant to remove intent as an

issue”). Evidence of his prior conviction was highly probative of intent, see

Sanders, 668 F.3d at 1314 (stating evidence of prior drug dealings is highly

probative of intent to distribute a controlled substance), and evidence of the prior


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conviction was unlikely to incite the jury to make an irrational decision, see United

States v. Delgado, 56 F.3d 1357, 1366 (11th Cir. 1995) (finding evidence of prior

drug offenses does not tend to incite a jury to an irrational decision). Determining

the prior conviction was not too remote in time to have probative value was a

proper exercise of discretion by the district court. See Jernigan, 341 F.3d at 1282;

see also United States v. Lampley, 68 F.3d 1296, 1300 (11th Cir. 1995) (holding a

district court did not abuse its discretion in admitting other acts evidence as much

as 15 years old). Accordingly, the district court did not abuse its discretion in

admitting the prior conviction. See Delgado, 56 F.3d at 1363 (reviewing a district

court’s admission of evidence under Federal Rule of Evidence 404(b) for an abuse

of discretion).

C. Jury’s questions

      Third, Taylor asserts the district court misled the jury in its responses to a

series of jury questions. We review a district court’s response to a jury question

for an abuse of discretion. United States v. Wright, 392 F.3d 1269, 1279 (11th Cir.

2004). Where a party has agreed with a proposed answer to a jury’s question,

however, that party may not then challenge that answer on appeal because “[i]t is a

cardinal rule of appellate review that a party may not challenge as error a ruling or

other trial proceeding invited by that party.” United States v. Fulford, 267 F.3d

1241, 1246-47 (11th Cir. 2001) (quotation omitted) (holding defense invited error


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regarding court’s response to a jury’s question by saying, “the instruction is

acceptable to us”). The district court has considerable discretion in answering a

jury question, so long as the answer does not misstate the law or confuse the jury.

United States v. Lopez, 590 F.3d 1238, 1247-48 (11th Cir. 2009). Any such

supplemental instruction is considered in light of the entire jury charge, and we

will not reverse unless “left with a substantial and ineradicable doubt as to whether

the jury was properly guided in its deliberations.” Id. at 1248 (quotation omitted).

      Taylor only makes a specific argument on appeal concerning the court’s

response to one of the jury questions, specifically the one which asked the court to

clarify the definition of “possession.” When the court presented its proposed

answer, however, Taylor responded, “That sounds fine, Your Honor.” Under the

doctrine of invited error, his agreement with the court’s answer foreclosed any

challenge to that answer on appeal. See Fulford, 267 F.3d at 1246-47. He also

agreed with the court’s proposed answer to the jury’s questions about what

constituted knowing possession, and accordingly waived any challenge to the

court’s responses. See id.

      Taylor did object to one sentence in the court’s answer regarding whether

“possessed and possession” had the same meaning. He argues on appeal, without

elaboration, that this answer misled the jury. The court’s answer, however, was

addressing the jury’s question involving the past tense of “possess,” and so appears


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to have been designed to assist, rather than confuse the jury. In any event, the

response was not a misstatement of the law, and did not impair the jury’s

deliberations. See Lopez, 590 F.3d at 1247-48.

D. Sufficiency of the evidence

      Fourth, Taylor contends there was insufficient evidence of intent to support

his conviction for possession of cocaine with intent to distribute. To support a

conviction under 21 U.S.C. § 841(a)(1), the government must prove three

elements: “(1) knowledge; (2) possession; and (3) intent to distribute.” 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.

      The only element that Taylor argues lacked sufficient evidence is the

element of intent to distribute. The Government was entitled to prove intent

circumstantially by adducing evidence of the amount of cocaine, the existence of

implements commonly associated with distribution, and Taylor’s prior drug

trafficking conviction. See id.; see also United States v. Pollock, 926 F.2d 1044,

1050 (11th Cir. 1991) (stating a jury may consider a defendant’s prior conviction

for a drug trafficking offense as evidence of intent). At trial, the evidence

established Taylor had approximately 16 grams of cocaine, some of which was in


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small containers, as well as digital scales and a firearm. An expert witness testified

the amount of cocaine, the way it was stored, the presence of digital scales, and the

possession of a firearm were all indicia of sales. See United States v. Wilson, 183

F.3d 1291, 1299 (11th Cir. 1999) (considering seven grams of cocaine indicative of

intent to distribute). The expert witness also testified the amount of cocaine

involved and the presence of digital scales indicated the cocaine was not simply for

personal use. In light of all this, there was sufficient evidence for a jury reasonably

to conclude beyond a reasonable doubt that Taylor intended to distribute the

cocaine. See Poole, 878 F.2d at 1391 (stating we review the sufficiency of the

evidence de novo, and view the evidence in the light most favorable to the

government to decide whether the jury could reasonably have found the defendant

guilty beyond a reasonable doubt).

E. Sentence

      Finally, Taylor asserts his total sentence is substantively unreasonable. The

district court must impose a sentence “sufficient, but not greater than necessary to

comply with the purposes” listed in 18 U.S.C. § 3553(a), including the need to

reflect the seriousness of the offense, promote respect for the law, provide just

punishment for the offense, deter criminal conduct, and protect the public from the

defendant’s future criminal conduct. See 18 U.S.C. § 3553(a)(2). In imposing a

particular sentence, the district court must also consider the nature and


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circumstances of the offense, the history and characteristics of the defendant, the

kinds of sentences available, the applicable guideline range, the pertinent policy

statements of the Sentencing Commission, the need to avoid unwarranted

sentencing disparities, and the need to provide restitution to the victim. 18 U.S.C.

§ 3553(a)(1), (3)-(7). The weight given to any specific factor is committed to the

discretion of the district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir.

2007).

      The district court stated it had considered the required sentencing factors,

including the Guidelines range, and recognized the driving factor was Taylor’s

criminal past, which would have placed him in criminal history category VI even if

he were not classified as a career offender. The court’s attachment of greater

weight to the Guidelines and Taylor’s extensive criminal history, and lesser weight

to his personal history, was not unreasonable. See United States v. Williams, 526

F.3d 1312, 1322 (11th Cir. 2008) (stating the court’s attachment of great weight to

a single factor is not necessarily unreasonable, although a district court’s

unjustified reliance upon any single § 3553(a) factor may be a “symptom” of an

unreasonable sentence). The court ultimately selected a total sentence within the

Guidelines range, which we ordinarily expect to be reasonable. See United States

v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). Finally, the fact the 276-month total

sentence was below the 30-year statutory maximum also suggests that the sentence


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was reasonable. See United States v. Dougherty, 754 F.3d 1353, 1362 (11th Cir.

2014), cert. denied, 135 S. Ct. 1186 (2015). For these reasons, the district court

did not abuse its discretion and imposed a substantively reasonable total sentence.

See Gall v. United States, 552 U.S. 38, 51 (2007) (reviewing the reasonableness of

a sentence under a deferential abuse of discretion standard).

                                II. CONCLUSION

      For the foregoing reasons, Taylor’s convictions and total sentence are

AFFIRMED.




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