                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                           JANUARY 25, 2007
                              No. 06-13284                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                   D. C. Docket No. 05-00110-CR-3-LAC

UNITED STATES OF AMERICA,


                                                         Plaintiff-Appellee,

                                   versus

JAMES CLINTON MCCORVEY,

                                                         Defendant-Appellant.


                        ________________________

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

                             (January 25, 2007)

Before BLACK, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

     James Clinton McCorvey appeals his convictions and sentences for
possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841, and

possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g).

After a thorough review of the record, we affirm.

                                   I. Background

      Prior to trial, the government gave notice of its intent to introduce evidence

of McCorvey’s 2002 conviction for a controlled substance offense and a 1994

conviction for possession of a firearm by a convicted felon prior convictions under

Fed. R. Evid. (“Rule”) 404(b).

      Also prior to trial, McCorvey moved to suppress evidence and to identify the

confidential informant who supplied information that formed the basis of the

search warrant for his residence that led to the discovery of the drugs and firearm.

According to the affidavit for the search warrant, police used a confidential

informant to engage in a controlled buy of drugs from McCorvey at McCorvey’s

home. McCorvey submitted a sworn affidavit denying any involvement in the

controlled buy. At a hearing, the officer who filed the affidavit testified about the

controlled buy, and the court found that there was no false statement in the

affidavit. The court then denied the motions to suppress and to identify the

informant.

      The evidence at trial established the following: as part of a drug



                                           2
investigation, Escambia County Sheriff’s Office narcotics investigator Reginald

Bruster executed a search warrant for McCorvey’s residence, which he was able to

identify based on bills for that address listed in McCorvey’s name. In the bedroom

of McCorvey’s house, police found McCorvey’s wallet, cash, and cans with false

bottoms. The cans contained little baggies like the ones used to store and package

drugs for distribution. Police also found cocaine and Mannitol, a cutting agent

used to dilute drugs, enabling sellers to increase profits. In the living room, police

found more baggies and electronic scales. In another room that appeared to be

used as storage, police found clothes, pill bottles with McCorvey’s name on them,

and a loaded firearm with two types of ammunition in a dresser drawer. The

amount of drugs found was 15.9 grams of cocaine.

      Bruster testified that his investigation did not uncover any legitimate source

of income for McCorvey. Defense counsel objected to the testimony, which the

court overruled. Counsel later clarified the basis for his objection - that Bruster’s

testimony concerning McCorvey’s lack of income was based on hearsay. Counsel

moved for a mistrial, which the court overruled, noting that counsel could have

cross-examined Bruster to determine the basis of his knowledge.

      The government reiterated that it intended to call a witness to testify to




                                           3
McCorvey’s prior convictions.1 Defense counsel objected to the testimony in

general, but specifically to the use of a witness to discuss the convictions. Counsel

also noted that the testimony would be irrelevant and prejudicial. The court

overruled the objection. ATF Agent Peter Bondjuk testified that McCorvey had

prior convictions for possession of cocaine in 2002 and possession of a firearm by

a convicted felon in 1994.

       McCorvey called a single witness and did not testify on his own behalf.

Lawrence Coker testified that his son had been living in the house with McCorvey.

After Coker’s son died, Coker never removed his son’s belongings.

       In preparing the jury instructions, defense counsel requested an instruction

on the lesser included offense of possession because the small amount of drugs was

consistent with personal use. The court denied the instruction, finding it

unnecessary because the jury could find McCorvey not guilty if it believed the

drugs were for personal use. In its instructions, the court informed the jury that the

prior convictions were admissible for the limited purposes of determining whether

McCorvey had the required intent and whether he acted without mistake or

accident. The jury convicted McCorvey of both counts.2

       1
           The parties stipulated that McCorvey had a prior felony conviction for purposes of the
instant § 922(g) charge. Expert testimony established that the firearm and ammunition found in the
house traveled in interstate or foreign commerce.
       2
           The court denied McCorvey’s motions for post-verdict judgment of acquittal.

                                                4
      Prior to sentencing, the government filed an information on enhanced

penalties under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), in

which it identified the following prior convictions: battery, battery on a law

enforcement officer, possession with intent to deliver, and sale of a controlled

substance.

      The probation officer prepared a presentence investigation report (“PSI”),

grouping the two counts together and assigning a base offense level of 20 under

U.S.S.G. § 2K2.1(a)(4) based on the prior battery conviction. The probation

officer then included a 4-level increase under U.S.S.G. § 2K2.1(b)(5) because

McCorvey possessed the firearm in connection with another felony offense, i.e. the

controlled substance offense in count one, and a 2-level increase for obstruction of

justice, U.S.S.G. § 3C1.1, based on the false affidavit McCorvey submitted in his

earlier motion to suppress. Under the ACCA, McCorvey’s adjusted offense level

was 34.

      The probation officer then detailed McCorvey’s lengthy criminal history,

which identified more than 20 prior convictions for assault and battery, controlled

substance offenses, and firearm offenses. Based on McCorvey’s status as a career

offender, his criminal history category was VI, which resulted in a guidelines range

of 262 to 327 months imprisonment. The probation officer recommended a



                                           5
sentence in the middle of the range, but did not recommend a fine because the

records indicated that McCorvey would be unable to pay a fine due to outstanding

debt and overdue child support.

       The court overruled McCorvey’s various objections to the enhancements and

adopted the PSI. Upon consideration of the sentencing factors in 18 U.S.C.

§ 3553(a), including McCorvey’s prior convictions, the court sentenced McCorvey

to 294 months imprisonment. The court also imposed a fine of $800, which was

below the guidelines range, finding that McCorvey would not be able to pay a fine

within the range, but that the opportunities he had in prison as well as upon release

would enable him to pay a smaller fine. McCorvey objected to the fine imposed.

       McCorvey now appeals, challenging the admission of his two prior

convictions, the testimony regarding his income, the failure to instruct the jury on

the lesser included offense, and the imposition of a fine.3

                                   II. McCorvey’s Appeal

       We review a district court’s decision to admit evidence for abuse of


       3
          McCorvey also challenges the conclusion that the firearm was “in connection with” drug
distribution and whether the court plainly erred in imposing a sentence that was sufficient and “a
greater sentence should not be necessary.” Upon review, we affirm without further discussion. See
United States v. Garcia-Delgado, 184 Fed. Appx. 851 (11th Cir. 2006) (unpublished) (holding that
the court’s statement that the sentence was “sufficient, and a greater sentence is not necessary” did
not contradict the requirements of § 3553(a)); United States v. Rhind, 289 F.3d 690, 695 (11th Cir.
2002) (holding that to apply the firearm enhancement, the firearm need only “reflect the context of
the defendant’s possession,” and the defendant’s ability to use the firearm to promote the controlled
substance offense).

                                                 6
discretion. United States v. Smith, 459 F.3d 1276, 1295 (11th Cir. 2006). A

district court’s refusal to give a particular jury charge also is reviewed for abuse of

discretion. United States v. Lee, 68 F.3d 1267, 1273 (11th Cir. 1995). We review

a district court’s determination that the defendant is able to pay the fine for clear

error. United States v. McGuinness, 451 F.3d 1302, 1307 (11th Cir. 2006); United

States v. Singh, 335 F.3d 1321, 1323 n.1 (11th Cir. 2003).

                    A. Admission of Prior Convictions

      McCorvey argues that the court misapplied Rule 404(b) and admitted

prejudicial and irrelevant evidence, leaving the jury to picture him as a violent

repeat offender. He contends that his prior convictions were not relevant to the

issue of intent because intent was not an element of the 922(g) offense. He further

notes that he stipulated that he had a prior felony conviction, and, therefore, the

prior convictions were not admissible to prove this element of his § 922 offense.

Although he acknowledged that this court permits evidence of a prior conviction to

show knowing possession of a firearm, he asserts that it was not probative in the

instant case because there was no information about the prior conviction and it is

unknown whether the prior conviction was similar. McCorvey admits that intent is

an element of his controlled substance offense, but he asserts that his prior

conviction for possession of a controlled substance is not probative of his intent to



                                            7
commit possession with intent to distribute, as the two offenses have different

elements.

       Under Rule 404(b), “[e]vidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity

therewith. It may, however, be admissible for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident . . . .” Fed. R. Evid. 404(b). The rule is one of “inclusion.”

United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003).

       As this court has explained, evidence is admissible under Rule 404(b) if:

“(1) it is relevant to an issue other than the defendant’s character; (2) the prior act

is proved sufficiently to permit a jury determination the defendant committed the

act; and (3) the evidence’s probative value cannot be substantially outweighed by

its undue prejudice, and it must satisfy Federal Rule of Evidence 403.”4 United

States v. Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006); Jernigan, 341 F.3d at 1280.

McCorvey does not challenge whether the prior convictions were proven

sufficiently; thus only the first and third prongs are at issue.

       As to the first prong, we conclude that the prior convictions were relevant to


       4
           Rule 403 provides, “[a]lthough relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.”

                                                 8
show intent and absence of mistake. McCorvey’s defense was that his prints were

not found on the evidence, that the evidence belonged to a previous resident of the

house, and that he did not knowingly possess the firearm. Based on this defense,

McCorvey placed his intent and lack of mistake at issue. Jernigan, 341 F.3d at

1281-82. Thus, the evidence was admissible to prove intent and absence of

mistake. Moreover, the fact that the prior conviction involved possession of a

controlled substance and that the instant offense involved possession with intent to

distribute does not render the prior conviction inadmissible. See United States v.

Matthews, 431 F.3d 1296, 1311 (11th Cir. 2005) (explaining that a prior conviction

for possession was relevant to the instant charge for possession with intent to

distribute); United States v. Butler, 102 F.3d 1191 (11th Cir. 1997). Furthermore,

evidence of a prior possession of a firearm is admissible to show knowledge in a

prosecution for knowingly possessing a similar weapon. Jernigan, 341 F.3d at

1281.

        With respect to the third prong, the probative value of the evidence

outweighed the prejudicial value. Despite McCorvey’s claim that the evidence

caused the jury to view him as a violent repeat offender, the jury only heard about

two prior convictions - one for controlled substances and one for firearm

possession. The jury did not learn any details of the convictions, or of McCorvey’s



                                           9
lengthy criminal history. Thus, the evidence was not prejudicial. Moreover, the

court instructed the jury that the evidence was admissible for the limited purpose of

showing intent and absence of mistake, and not to determine whether McCorvey

committed the instant offense. Jernigan, 341 F.3d at 1283. Therefore, the court

did not abuse its discretion by admitting the prior convictions.

      Even if the court erred, any error was harmless in light of the overwhelming

evidence against McCorvey. United States v. Gunn, 369 F.3d 1229, 1236 (11th

Cir. 2004); United States v. Harriston, 329 F.3d 779, 789 (11th Cir. 2003) (stating

that error is harmless “where there is overwhelming evidence of guilt” or “the error

had no substantial influence on the outcome and [other] sufficient evidence . . .

supports the verdict”). Police found drugs and drug paraphernalia in McCorvey’s

bedroom, in a house listed in McCorvey’s name, and on the bed with McCorvey’s

wallet. In light of this evidence, permitting the jury to hear about two prior

convictions was harmless.

                    B. McCorvey’s Income

      McCorvey next argues that the court improperly admitted testimony that

investigators found no legitimate source of income because there was no

foundation for the testimony as required by Rule 602 and 701.

      Under Rule 602, “[a] witness may not testify to a matter unless evidence is



                                          10
introduced sufficient to introduce a finding that the witness has personal

knowledge of the matter. Evidence to prove personal knowledge may, but need

not, consist of the witness’ own testimony.” Fed. R. Evid. 602. A witness’s lay

opinion is admissible if, inter alia, it is “rationally based on the perception of the

witness.” Fed. R. Evid. 701.

      Here, the court did not abuse its discretion. Bruster testified that he was

involved in the investigation and that he was unable to find any legitimate source

of income. Thus, Bruster had personal knowledge, based on his investigation, and

his testimony satisfied Rule 602.

      Moreover, even if there was error, that error was harmless because, as

discussed above, the evidence against McCorvey was overwhelming. Harriston,

329 F.3d at 789.

                    C. Jury Instructions

      In his next argument, McCorvey asserts that the court erred by refusing to

instruct the jury on the lesser included offense of possession because the evidence

was consistent with the offenses of simple possession and a rational juror could

have found him guilty of the lesser offense.

      A defendant is entitled to an instruction on a lesser included offense if “there

was a reasonable basis on which the jury could find the defendant guilty of [the



                                            11
lesser offense] beyond a reasonable doubt yet entertain a reasonable doubt [as to

the greater offense].” United States v. Catchings, 922 F.2d 777, 780 (11th Cir.

1991). As this court has explained, in the context of possession and distribution of

drugs, where the factual issues are the same for both the lesser offense of

possession and the greater offense of distribution, the instruction on possession is

not required. Id. at 780-81; United States v. Pirolli, 742 F.2d 1382, 1387 (11th Cir.

1984).

         Here, the facts involved in the two offenses were the same, and therefore, the

instruction was not required. See Lee, 68 F.3d at 1273. Moreover, McCorvey’s

reliance on United States v. Gibbs, 904 F.2d 52 (D.C. Cir. 1990), is misplaced. In

Gibbs, police found only about 15 grams of drugs, but did not find any drug

paraphernalia. In contrast, in this case, there was evidence that police found

baggies, scales, and cutting agents, which were consistent with drug distribution.

Moreover, there was no evidence in the instant case of personal use. Lee, 68 F.3d

at 1273. Accordingly, the court did not abuse its discretion by denying the

instruction.

                      D. Imposition of a Fine

         Finally, McCorvey argues that the court erroneously determined that he

would be able to pay a fine below the guidelines range because the record reflected



                                           12
his debt and the PSI recognized his inability to pay.

      Under U.S.S.G. § 5E1.2, “[t]he court shall impose a fine in all cases, except

where the defendant establishes that he is unable to pay and is not likely to become

able to pay any fine” “even with the use of a reasonable installment schedule.”

U.S.S.G. § 5E1.2(a) & (e)(1). McCorvey has the burden of proving inability to

pay. McGuinness, 451 F.3d at 1307; United States v. Hernandez, 160 F.3d 661,

665 (11th Cir. 1998).

      Here, the district court found that McCorvey would not be able to pay a fine

under the guidelines range, but that he was able to pay a smaller fine, which

contradicted the PSI’s findings. The court made no other factual findings except to

adopt the PSI.

      This court has held that the sentencing court is not required to make specific

findings of fact with respect to the Sentencing Guideline factors as long as “‘the

record reflect[s] the district court’s consideration of the pertinent factors prior to

imposing the fine.’” United States v. Lombardo, 35 F.3d 526, 530 (11th Cir.1994).

These factors include: the defendant’s income; earning capacity; financial

resources; the burden on the defendant and his dependents; pecuniary loss inflicted

on others as a result of the offense; whether restitution is ordered; the need to

deprive the defendant of illegal gains; and the need to promote respect for the law,



                                            13
provide just punishment, and adequate deterrence. U.S.S.G. § 5E1.2(d). If it is

unclear from the record as to the court’s reasons for imposing a fine, this court

should remand the case so that the court can make the necessary factual findings.

United States v. Rowland, 906 F.2d 621, 624 (11th Cir. 1990).

      Here, the court reviewed and adopted the PSI, but then found that

employment opportunities in prison and after release would enable McCorvey to

pay a fine in the amount of $800. McCorvey has offered nothing to show his

inability to pay this small amount. As the court noted, McCorvey is only 48 years

old, has a college education, and has no medical conditions that would prevent him

from being able to work while incarcerated and after release. Thus, it appears that

the court sufficiently considered the necessary factors before imposing a fine.

McCorvey has offered nothing other than the PSI’s findings of his outstanding debt

as evidence of his inability to pay.

                                   III. Conclusion

      For the foregoing reasons, we AFFIRM McCorvey’s convictions and

sentences.




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