                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-2469
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Southern District of Iowa.
Anthony Thomas Claybourne,              *
                                        *
            Appellant.                  *
                                   ___________

                         Submitted: December 15, 2004
                             Filed: August 1, 2005
                                  ___________

Before LOKEN, Chief Judge, MORRIS SHEPPARD ARNOLD and RILEY, Circuit
      Judges.
                              ___________

RILEY, Circuit Judge.

      After a two-day jury trial, Anthony Claybourne (Claybourne) was convicted of
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
Finding Claybourne was an armed career criminal, see 18 U.S.C. § 924(e), U.S.S.G.
§ 4B1.4, the district court1 sentenced Claybourne to 235 months’ imprisonment. On
appeal, Claybourne claims (1) insufficient evidence supports his conviction, (2) the


      1
      The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
district court abused its discretion in admitting drug-related evidence, (3) the United
States Sentencing Guidelines (Guidelines) are unconstitutional, and (4) the district
court unconstitutionally enhanced Claybourne’s sentence based on the court’s
findings that Claybourne had three prior felony convictions. We affirm Claybourne’s
conviction and sentence.

I.     BACKGROUND
       On May 28, 2003, members of the Mid-Iowa Narcotics Task Force executed
a search warrant of Claybourne’s residence. Before police officers entered the
residence, Officer Joseph Torruella (Officer Torruella) looked through a window and
noticed someone moving inside the residence. Upon entering the residence, the
officers encountered Claybourne, who was the only person in the residence. The
officers also discovered the residence had only two small bedrooms. When officers
searched the bedroom where Officer Torruella had seen movement, they discovered
(1) an Iowa nondriver identification card for Claybourne; (2) Claybourne’s Social
Security card; (3) a wireless telephone bill in Claybourne’s name inside a shoe box;
(4) another identification card for Claybourne inside a box on the top shelf of the
closet; (5) a hand scale inside the closet; (6) a box of sandwich baggies; (7) a digital
scale buried under some socks inside a dresser drawer; and (8) $950 in cash wrapped
in a rubber band inside a sock in a clothes basket.

       The police also discovered a double extra large man’s t-shirt on the top shelf
of the closet. Concealed inside the t-shirt were an Intratec, Model TEC-9, 9mm,
semiautomatic pistol, its barrel, and its magazine containing twenty-nine rounds of
ammunition.2 No identifiable prints were discovered on the firearm.




      2
        At trial, the parties stipulated that Claybourne previously had been convicted
of a felony, the pistol and its ammunition had been manufactured outside of Iowa, and
the pistol functioned as a firearm on the day it was discovered.

                                          -2-
       The government charged Claybourne with being a felon in possession of a
firearm and ammunition. Claybourne pled not guilty. Granting, in part, Claybourne’s
motion in limine to exclude drug-related evidence, the district court allowed the
government only to submit evidence that the firearm “was found in the presence of
drug material, drug paraphernalia.” Evidence of other drug activities and related
investigations was not allowed.

       At trial, Claybourne called two witnesses–Nicole Cratty (Cratty) and Angel
Ball (Ball). Cratty, who had known Claybourne only since May 2003, testified the
firearm found in the closet did not belong to Claybourne: “I know that the weapon
was not his. . . . Because I’m the one that put it at the top of the cupboard in the
house.” Cratty testified she first discovered the firearm while she was packing to
move on May 4 or 5. Cratty said she found the firearm wrapped inside a gray t-shirt
above the kitchen cupboard at her apartment. Cratty said Claybourne had never been
to her apartment, but she had allowed a man from Omaha to stay at her apartment
from the end of April to the beginning of May. Cratty testified she did not know the
man’s full name, address or phone number. After consulting Ball, who was helping
her move, Cratty decided to take the firearm with her to her next residence. Cratty
did not stay long at that residence, and decided to move to another apartment on May
28. Before she moved into the apartment, Cratty stayed with Claybourne in his
bedroom on May 26 and 27. Cratty testified that, on May 27, she decided she wanted
to go to the bar and “didn’t want to get pulled over with [the firearm] in [her]
vehicle,” so she “put [the firearm wrapped inside the t-shirt] in the cupboard above
the closet in the first bedroom at [Claybourne]’s.” Cratty said she put the firearm and
the t-shirt in the closet about 9:00 p.m. Cratty testified “[n]obody was there when I
did it,” and she never told Claybourne she put the firearm in his closet. At
approximately 3:00 or 4:00 a.m. on May 28, Cratty, Claybourne and another friend
returned to Claybourne’s residence. After leaving the apartment on the morning of
May 28, Cratty never returned to Claybourne’s residence, never showed the firearm
to Claybourne, and never talked to Claybourne about the firearm.

                                         -3-
       Ball testified she has known Cratty since elementary school, but had never met
Claybourne. Ball testified she was the only person who helped Cratty move in early
May 2003, but had not talked to Cratty “for a long time” before that day. Ball stated
that, while she was in another room packing, Cratty “hollered for me to come into the
kitchen and had me get up on the counter to look, and there was a gun there.” Ball
identified the firearm at trial as the one she saw when she was helping Cratty move.
Ball also stated the firearm was wrapped in a gray t-shirt, but did not know if the t-
shirt produced at trial was “the exact one.” Although Ball first testified she had never
met Claybourne and did not visit Claybourne in jail, Ball later admitted–after the
government produced jail visitation records with Ball’s handwriting–she had visited
Claybourne while he was in jail.

      At the close of the government’s case and again at the close of all of the
evidence, Claybourne moved for judgment of acquittal. The district court denied the
motion both times. After the two-day trial, a jury convicted Claybourne on the felon-
in-possession charge.

      The United States Probation Office prepared a presentence investigation report
(PSR), which contained ten pages listing Claybourne’s adult convictions. The PSR
calculated a criminal history category of VI. Based on Claybourne’s prior
convictions for second-degree burglary, third-degree burglary, escape, and assault
with intent to inflict serious injury (two convictions for this offense), the PSR
concluded Claybourne should be sentenced as an armed career criminal under 18
U.S.C. § 924(e) and U.S.S.G. § 4B1.4. Claybourne lodged an objection to the PSR,
contending “he is not an armed career criminal,” because the predicate offenses are
not crimes of violence. Overruling Claybourne’s objections, the district court
concluded Claybourne’s two prior felony burglary convictions and felony escape
conviction required that Claybourne be sentenced as an armed career criminal.
Calculating an offense level of 33 and a criminal history category of VI, the district
court determined the Guidelines sentencing range was 235 to 293 months’

                                          -4-
imprisonment. When allowed “to address . . . the issue of where in the guideline
range sentencing is appropriate,” Claybourne’s attorney stated,

             We would ask the court to sentence my client to the low end of
      the range, the 235 months, Your Honor. The punishment is quite severe
      under the law. I believe that 235 months would not only serve as a
      deterrent to my client and to society, but it would be severe enough to
      satisfy any of the other sentencing factors that the court must take into
      account. . . . I believe, under the circumstances of my client’s–the
      characteristics of my client and his [young] life, that the 235 months
      would be certainly more than adequate to punish him in this matter,
      Your Honor.

      In sentencing Claybourne, the district court made the following statement:

             The court certainly recognizes that, under the circumstances of
      this case, the primary issues that would be in consideration in sentencing
      with regard to Mr. Claybourne would be the amount of his prior criminal
      activity and the fact that he’s had a lot of trouble with the law over a
      long period, but all of that has essentially been taken into consideration
      by the guidelines and by the applicable law which provided a situation
      in this case where he was found to be an armed career criminal.
      Therefore, the guidelines have certainly adequately, if not more than
      adequately, addressed any issues that are reasonably before the court.

              Under the circumstances, at the lowest possible end of the range,
      Mr. Claybourne is facing a significant amount of time based upon that
      prior criminal activity. Therefore, the court finds no reason here today
      to set the sentence anyplace other than at the bottom of the range.

Thus, the district court sentenced Claybourne to 235 months’ imprisonment.




                                         -5-
II.   DISCUSSION
      A.      Sufficiency of the Evidence
      Arguing the “government’s evidence at trial was equally strong to infer [his]
innocence . . . as to infer his guilt,” Claybourne contends the district court erroneously
denied his motions for judgment of acquittal. Claybourne confronts “a high hurdle”
when attacking the sufficiency of the evidence supporting a conviction, “as we must
employ a very strict standard of review on this issue.” United States v. Cook, 356
F.3d 913, 917 (8th Cir. 2004). “We must view the evidence in the light most
favorable to the government, resolving evidentiary conflicts in favor of the
government, and accepting all reasonable inferences drawn from the evidence that
support the jury’s verdict.” Id. (citation omitted). We will reverse only if we decide
no reasonable jury could have found Claybourne guilty. Id.

       To convict Claybourne under 18 U.S.C. § 922(g)(1),3 “the government had to
prove beyond a reasonable doubt that (1) [Claybourne] had previously been convicted
of a crime punishable by a term of imprisonment exceeding one year;
(2) [Claybourne] knowingly possessed a firearm; [and] (3) the firearm has been in or
has affected interstate commerce.” United States v. Maxwell, 363 F.3d 815, 818 (8th
Cir. 2004). Because the parties stipulated to the first and third elements, the
government had to prove only that Claybourne knowingly possessed a firearm.

       The government could prove Claybourne “knowingly possessed the firearm if
he had actual or constructive possession of the firearm, and possession of the firearm
could have been sole or joint.” United States v. Walker, 393 F.3d 842, 846-47 (8th
Cir. 2005). “Constructive possession of the firearm is established if the person has

      3
           Section 922(g)(1) makes it “unlawful for any person who has been convicted
in any court of, a crime punishable by imprisonment for a term exceeding one year
. . . to . . . possess in or affecting commerce, any firearm or ammunition; or to receive
any firearm or ammunition which has been shipped or transported in interstate or
foreign commerce.”

                                           -6-
dominion over the premises where the firearm is located, or control, ownership, or
dominion over the firearm itself.” United States v. Boykin, 986 F.2d 270, 274 (8th
Cir. 1993).

       Sufficient evidence supports Claybourne’s conviction. The evidence
discovered inside the small bedroom singularly pointed to Claybourne as the person
who exercised dominion over the bedroom where the firearm was discovered. Before
the police officers even entered the residence, Officer Torruella noticed movement
in the bedroom where the firearm was located. As Claybourne was the only person
inside the residence, he must have been the person inside the bedroom when the
police approached the residence. Claybourne’s Iowa nondriver identification card
and Social Security card were found in the bedroom, as was a telephone bill in
Claybourne’s name. Police also found another identification card for Claybourne on
the very shelf where they discovered the firearm. Even Cratty’s testimony revealed
Claybourne exercised dominion over his small bedroom where the firearm was
discovered. Cratty testified she stayed in Claybourne’s room on May 26 and 27,
revealing Claybourne had the authority to determine who stayed in his bedroom.

       It is also critical that the firearm was concealed inside a man’s shirt.
Concealing the firearm inside a piece of clothing was consistent with how the $950
in cash was concealed inside a sock in the same bedroom. In addition to recognizing
a pattern of concealing items, the jury also may have reasonably inferred the
movement Officer Torruella saw in the bedroom was Claybourne attempting to
conceal the firearm and cash.

       Although criminal defendants often argue the jury should not have believed the
government’s witnesses, see, e.g., Cook, 356 F.3d at 917; United States v. Espino,
317 F.3d 788, 794 (8th Cir. 2003), Claybourne contends the jury erroneously failed
to believe his witnesses. Claybourne argues his evidence “showed, step by step, how
the gun ended up in the cupboard without [his] knowledge.” Claybourne made this

                                        -7-
argument to the jury, which rejected it. We reiterate the jury “is always the ultimate
arbiter of a witness’s credibility, and this Court will not disturb the jury’s findings in
this regard.” Espino, 317 F.3d at 794. There can be no doubt the jury rejected
Cratty’s and Ball’s convenient testimony about how the firearm found its way into
Claybourne’s closet. We are in no better position to judge Cratty’s and Ball’s
credibility on their crucial testimony. The jury had sufficient circumstantial evidence
upon which to convict Claybourne.

       B.     Drug-Related Evidence
       Relying on Federal Rules of Evidence 4034 and 404(b)5, Claybourne argues
“the district court’s ruling permitting the admission of the evidence of drug
paraphernalia constitutes an abuse of discretion because the evidence was so
prejudicial that it far outweighed the probative value of the evidence and poisoned
the minds of the jurors.” “We review de novo the district court’s interpretation and
application of the rules of evidence, and review for an abuse of discretion the factual
findings supporting its evidentiary ruling.” United States v. Smith, 383 F.3d 700, 706
(8th Cir. 2004) (citing United States v. Blue Bird, 372 F.3d 989, 993 (8th Cir. 2004)).
Giving great deference “to the district court’s determination in balancing the
prejudicial effect and probative value of evidence of other crimes” or acts, we will
reverse the district court’s evidentiary decision “only when the evidence admitted
clearly has no bearing on any issue involved.” United States v. White, 356 F.3d 865,


      4
       “Although 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.” Fed. R. Evid. 403.
      5
        “Evidence 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).

                                           -8-
870 (8th Cir. 2004) (citation omitted). We also recognize “Rule 404(b) is a rule of
inclusion rather than exclusion and admits evidence of other crimes or acts relevant
to any issue in the trial, unless it tends to prove only criminal disposition.” United
States v. Simon, 767 F.2d 524, 526 (8th Cir. 1985) (citation omitted). The district
court acted within its sound discretion in admitting the drug-related evidence if
“(1) the evidence is relevant to an issue in question other than the defendant’s
character; (2) clear and convincing evidence exists that the defendant committed the
prior wrongful acts; and (3) the potential unfair prejudice of the evidence does not
substantially outweigh its probative value.” Id.

       Claybourne maintains he had no idea a firearm was in his bedroom. He then
argues the drug-related evidence found in his small bedroom should be excluded as
unfairly prejudicial. Similar to his contention concerning the firearm, Claybourne
makes the following argument: “The mere presence of the [drug-related] items in the
room where Mr. Claybourne stayed is not enough to show that he possessed them.”
We disagree with Claybourne’s circular reasoning and conclude the district court did
not err in admitting the evidence.

       Given Claybourne’s contention that Cratty secretly placed the firearm in
Claybourne’s closet next to his identification card and a scale, the jury was entitled
to hear evidence depicting Claybourne’s small bedroom as it existed the morning the
police discovered the firearm. Claybourne argued to the jury that he had no idea a
firearm was hidden inside a man’s t-shirt and placed inside his closet. To counter this
theory, the government presented the jury with plenty of non-drug-related evidence
to convict Claybourne, as we outlined above.

       The government also placed the concealed firearm in context, i.e., the firearm
was discovered in the same closet with Claybourne’s identification card and a hand
scale, and outside the closet was a digital scale. Consistent with discovering a
concealed firearm, the police also discovered a large sum of cash concealed inside a

                                         -9-
sock. By allowing the jury to hear how the small bedroom contained a firearm along
with Claybourne’s personal belongings, scales, and concealed cash, the government
was able to attack Claybourne’s theory that he is an innocent victim who
unknowingly allowed a female guest to stash a firearm in his bedroom closet. That
is, the jury was allowed to consider evidence revealing Claybourne had the motive,
opportunity, intent, and plan to possess a firearm to protect his drug-related items and
large stash of cash. See Fed. R. Evid. 404(b) (authorizing evidence of other wrongs
or acts to prove “motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident”); United States v. Conrad, 320 F.3d 851, 857-58
(8th Cir. 2003) (holding drug paraphernalia was “admissible under Rule 404(b) as
probative on the issue of motive to possess a firearm”); United States v. Fuller, 887
F.2d 144, 147 (8th Cir. 1989) (holding drug paraphernalia “was admissible under
Rule 404(b) to show [the defendant]’s motive [to possess a firearm], given the close
and well-known connection between firearms and drugs”); Simon, 767 F.2d at 526-27
(affirming district court’s decision to admit drug-related evidence in a felon-in-
possession case). The scales and large amount of concealed cash also tended to prove
the presence of the firearm in Claybourne’s small bedroom was no mistake or
accident. Id.

       If the jury had been precluded from hearing evidence of drug scales and large
amounts of concealed cash, i.e., unable to see the bedroom as it existed when the
firearm was discovered, Cratty’s story would have been powerfully deceptive. We
conclude the district court did not abuse its sound discretion in admitting evidence
of the scales and large amount of cash, which countered Claybourne’s theory that he
had no reason to possess a firearm and a conniving Cratty set him up by secretly
hiding a firearm in his small bedroom.

    C.    Sentencing Issues
    Conceding he “did not object at trial to his sentence on Fifth or Sixth
Amendment grounds,” Claybourne argues on appeal the district court violated the

                                         -10-
Sixth Amendment by using the Guidelines to enhance Claybourne’s sentence. Citing
Blakely v. Washington, 124 S. Ct. 2531 (2004) (holding Washington’s sentencing
system unconstitutional), Claybourne contends (1) he did not consent to the
application of the unconstitutional Guidelines, and (2) the district court violated the
Sixth Amendment by using the Guidelines to enhance Claybourne’s sentence based
on a finding Claybourne’s prior felony convictions for burglary and escape were
crimes of violence. Claybourne asks this court to hold Claybourne’s Sixth
Amendment rights were violated, remand this case for resentencing, and instruct the
district court to “view the Guidelines as nonbinding and advisory, and sentence Mr.
Claybourne within the statutory minimum and maximum under 18 U.S.C. § 922(g).”

       We no longer need to speculate whether Blakely applies to the Guidelines–it
does. See United States v. Booker, 125 S. Ct. 738, 755-56 (2005). Our court has
recognized Booker held “the guidelines scheme ran afoul of the Sixth Amendment
insofar as the scheme provided that based on certain facts found by the sentencing
judge, the judge was required to impose a more severe sentence than could have been
imposed based on the facts found by the jury or admitted by the defendant.” United
States v. Marcussen, 403 F.3d 982, 983 (8th Cir. 2005) (citing Booker, 125 S. Ct. at
750). In addition to this Sixth Amendment holding, the Supreme Court excised two
provisions of the Sentencing Reform Act of 1984, thereby effectively creating an
advisory Guidelines system requiring a sentencing court “to consider Guidelines
ranges,” but also “permit[ting] the court to tailor the sentence in light of other
statutory concerns as well.” Booker, 125 S. Ct. at 756-57 (citing 18 U.S.C.
§ 3553(a)).

       Claybourne argues the Sixth Amendment required the government to prove to
a jury beyond a reasonable doubt that Claybourne’s prior felony convictions for
burglary and escape constituted crimes of violence such that he could be sentenced
as an armed career criminal. Because armed career criminal enhancements are based
upon prior convictions, both the Supreme Court and our court have rejected the

                                         -11-
argument that juries, as opposed to sentencing judges, determine whether prior
convictions constitute crimes of violence. See Booker, 125 S. Ct. at 756 (“Any fact
(other than a prior conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or a jury verdict must
be admitted by the defendant or proved to a jury beyond a reasonable doubt.”);
Marcussen, 403 F.3d at 984 (holding the district court, and not a jury, determines
whether prior convictions subject a defendant to be sentenced as an armed career
criminal). Thus, the district court’s legal determination that Claybourne’s burglary
and escape convictions qualified him for armed career criminal status did not violate
the Sixth Amendment.

       We still must determine whether the district court’s application of the
Guidelines as mandatory, rather than merely advisory, entitles Claybourne to
resentencing. Because Claybourne failed to lodge this objection before the district
court, we review his sentence for plain error, United States v. Pirani, 406 F.3d 543,
549 (8th Cir. 2005) (en banc) (failure to preserve issue mandates plain-error review),
which is a demanding standard not easily met, United States v. Rodriguez-Ceballos,
407 F.3d 937, 940 (8th Cir. 2005) (citing United States v. Dominguez Benitez, 542
U.S. 74, __, 124 S. Ct. 2333, 2340 (2004)).

       To gain reversal of his sentence, Claybourne must satisfy the four-part, plain-
error test discussed in United States v. Olano, 507 U.S. 725, 732-36 (1993). To
establish plain error, Claybourne must establish “(1) error, (2) that is plain, and (3)
that affect[s] substantial rights.” Johnson v. United States, 520 U.S. 461, 467 (1997)
(internal quotations omitted) (alteration in original). If Claybourne establishes these
three conditions, our court may exercise its discretion to remand for resentencing “if
(4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” Id. (internal quotations omitted) (alteration in original).




                                           -12-
       The district court “committed Booker error by applying the Guidelines as
mandatory, and the error is plain, that is, clear or obvious, at this time,” in light of
Booker. Pirani, 406 F.3d at 550. The critical question is whether Claybourne has
established the third and fourth conditions–“whether the Booker error affected
[Claybourne]’s ‘substantial rights’ in a manner that ‘seriously affects the fairness,
integrity, or public reputation of judicial proceedings.’” Id. (quoting Johnson, 520
U.S. at 467). To satisfy the third Olano condition, Claybourne must establish “a
‘reasonable probability’ that the district court would have imposed a more favorable
sentence under the advisory sentencing guidelines regime mandated by Booker.” Id.
at 547.

       We conclude Claybourne has not met his burden to prove the district court
would have imposed a more favorable sentence had it known the Guidelines were
merely advisory. At sentencing, Claybourne argued he is not an armed career
criminal because his convictions for burglary and escape were not crimes of violence.
Claybourne did not contend he should not be sentenced as an armed career criminal
even if his predicate offenses properly classify him as an armed career criminal.
Thus, after the district court determined Claybourne’s burglary and escape
convictions constituted crimes of violence, Claybourne sought to be sentenced at the
low end of the applicable Guidelines range. Acknowledging Claybourne’s extensive
prior criminal activity over a long period of time, the district court accepted
Claybourne’s sentencing argument that he be sentenced to 235 months’
imprisonment–the low end of the Guidelines range. Sentencing Claybourne at the
low end of the Guidelines range does not alone indicate a reasonable probability the
district court would have issued a more favorable sentence under an advisory
Guidelines sentencing system. See id. at 553 (“But sentencing at the bottom of the
range is the norm for many judges, so it is insufficient, without more, to demonstrate
a reasonable probability that the court would have imposed a lesser sentence absent
the Booker error.”).



                                         -13-
       The only hint the district gave that it may have sentenced Claybourne more
leniently under an advisory Guidelines system occurred when the court made the
following statement: “Therefore, the guidelines have certainly adequately, if not more
than adequately, addressed any issues that are reasonably before the court.” Because
this statement has no context, the statement fails to support the relief Claybourne
seeks on appeal. Given Claybourne’s long criminal history, the ease with which the
district court classified Claybourne as an armed career criminal, and no clear
indication the district court wished to impose a more lenient sentence on Claybourne
than contemplated under the Guidelines, we conclude Claybourne has not established
a reasonable probability the district court would have imposed a more favorable
sentence under an advisory Guidelines system. Id. (stating that, “where the effect of
the [Booker] error on the result in the district court is uncertain or
indeterminate–where we would have to speculate–the appellant has not met his
burden of showing a reasonable probability that the result would have been different
but for the error”) (quoting United States v. Rodriguez, 398 F.3d 1291, 1301 (11th
Cir. 2005)).

III.   CONCLUSION
       For the foregoing reasons, we affirm Claybourne’s conviction and sentence.
                       ______________________________




                                        -14-
