FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 13, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-15392

Non-Argument Calendar

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D. C. Docket No. 07-00015-CR-6

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES LAVERN GORDON, JR.,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(August 13, 2009)

Before DUBINA, Chief Judge, TJOFLAT and BLACK, Circuit Judges.

PER CURIAM:
James Lavern Gordon, Jr., appeals his conviction for conspiracy to possess

with intent to distribute, and to distribute, 500 grams or more of cocaine, in

violation of 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2, and his 360-month

sentence. He raises three arguments on appeal. First, he argues the district court

violated Federal Rule of Evidence 404(b) by allowing the Government to introduce

evidence of his past drug convictions. Second, he contends there was insufficient

evidence to support his conviction. Finally, he maintains the district court

erroneously enhanced his sentence. We address each issue in turn, and affirm

Gordon’s conviction and sentence.

I.

We review the district court’s decision to admit or exclude evidence for

abuse of discretion. United States v. Matthews, 431 F.3d 1296, 1311 (11th Cir.

2005). The improper admission of evidence is harmless when there is substantial

evidence of the defendant’s guilt. United States v. Chavez, 204 F.3d 1305, 1317

(11th Cir. 2000). In addition, prejudice from improperly admitted evidence may be

mitigated by a limiting instruction to the jury. United States v. Edouard, 485 F.3d

1324, 1346 (11th Cir. 2007).

Federal Rule of Evidence 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove

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

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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).

We apply a three-part test when determining whether prior bad acts were

admissible under Rule 404(b): “First, the evidence must be relevant to an issue

other than the defendant’s character; Second, the act must be established by

sufficient proof to permit a jury finding that the defendant committed the extrinsic

act; Third, the probative value of the evidence must not be substantially

outweighed by its undue prejudice . . . .” Matthews, 431 F.3d at 1310–11. We do

not consider the second prong when, as here, the defendant does not challenge the

sufficiency of the evidence supporting the extrinsic act. Id. at 1311 n.14.

As to the first prong, “in every conspiracy case, a not guilty plea renders the

defendant’s intent a material issue. Evidence of such extrinsic evidence as may be

probative of a defendant’s state of mind is admissible unless the defendant

affirmatively takes the issue of intent out of the case.” Id. at 1311 (alterations and

internal quotation marks omitted). “[C]ircuit precedent regards virtually any prior

drug offense as probative of the intent to engage in a drug conspiracy . . . .” Id.

As to the third prong, “whether the probative value of Rule 404(b) evidence

outweighs its prejudicial effect depends upon the circumstances of the extrinsic

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offense.” Edouard, 485 F.3d at 1345 (alteration omitted). Relevant circumstances

include the “overall similarity between the extrinsic act and the charged offense, as

well as temporal remoteness.” United States v. Jernigan, 341 F.3d 1273, 1282

(11th Cir. 2003). “[T]emporal remoteness is an important factor to be considered

as it depreciates the probity of the extrinsic offense.” Matthews, 431 F.3d at 1311

(internal quotation marks omitted). We, “however, ha[ve] refrained from adopting

a bright-line rule with respect to temporal proximity because decisions as to

impermissible remoteness are so fact-specific that a generally applicable litmus test

would be of dubious value.” Id. (internal quotation marks omitted). Therefore, an

appellant “bears a heavy burden in demonstrating an abuse of the court’s broad

discretion in determining if an extrinsic offense is too remote to be probative.” Id.

(internal quotation marks omitted).

In this case, the district court did not abuse its discretion by permitting the

Government to introduce evidence of Gordon’s prior convictions. First, the

convictions, for sale and possession of cocaine, were relevant to Gordon’s intent.

Gordon put his intent at issue by pleading not guilty and failing to take any

affirmative step to remove intent as an issue, and also by asserting, in his opening

statement and closing argument, that his presence was not tied to the drugs. See

Matthews, 431 F.3d at 1311. Given this Circuit’s precedent that past drug offenses

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are “probative of the intent to engage in a drug conspiracy,” these convictions were

clearly relevant to the question of whether Gordon intended to participate in the

drug offense. See id.

Second, the probative value of these convictions was not substantially

outweighed by unduly prejudicial effect. The district court expressly considered

the temporal remoteness of Gordon’s prior convictions and repeatedly instructed

the jury that those convictions must not be considered when determining whether

Gordon committed the acts underlying the charged offense. These instructions

mitigated any prejudicial effect of introducing the convictions. Edouard, 485 F.3d

at 1346. Accordingly, the district court did not abuse its discretion in admitting his

prior convictions.

II.

A claim of insufficient evidence to convict is reviewed de novo. United

States v. Nolan, 223 F.3d 1311, 1314 (11th Cir. 2000). We view the evidence in

the light most favorable to the Government and affirm the conviction if, based on

this evidence, “any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” Id.

To obtain a conviction for conspiracy under 21 U.S.C. § 846, “the

government must prove that there is an agreement by two or more persons to

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violate the narcotics laws.” United States v. Parrado, 911 F.2d 1567, 1570 (11th

Cir. 1990). Thus, “the government must prove beyond a reasonable doubt that:

(1) a conspiracy existed; (2) appellants knew of the essential objectives of the

conspiracy; and (3) appellants knowingly and voluntarily participated in the

conspiracy.” United States v. Calderon, 127 F.3d 1314, 1326 (11th Cir. 1997).

“Although mere presence is inadequate to establish guilt . . . it is material, highly

probative, and not to be discounted.” United States v. Gamboa, 166 F.3d 1327,

1332 (11th Cir. 1999) (internal quotation marks omitted).

Here, sufficient evidence supported Gordon’s conviction. A rational trier of

fact could conclude there was a conspiracy to possess and distribute cocaine, as a

search of the hotel room in which Gordon and codefendant Debra Ann Vernon, his

common law wife, were staying revealed cocaine, bundles of cash, firearms,

packaging supplies, and drug paraphernalia. Considering Gordon’s inhabitation of

the hotel room, and also his past involvement in drug offenses, a rational trier of

fact could conclude Gordon knew of the conspiracy’s objective and knowingly

participated in it. Accordingly, we affirm Gordon’s conviction.

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III.

We review a district court’s interpretation of relevant statutes and

Sentencing Guidelines de novo. United States v. Johnson, 375 F.3d 1300, 1301

(11th Cir. 2004).

Both federal statutory law and the Sentencing Guidelines contain provisions

relating to a defendant’s prior convictions. Section 841(b)(1)(B) of Title 21

provides a defendant is subject to a mandatory minimum sentence of 10 years’

imprisonment and a maximum sentence of life imprisonment when he commits an

offense involving at least 500 grams of cocaine after a prior conviction for a felony

drug offense. For the increased punishments in § 841(b)(1)(B) to apply, the

Government must file an information, pursuant to 21 U.S.C. § 851, prior to trial.

See 21 U.S.C. § 851(a)(1).

The Guidelines provide that when a defendant qualifies as a career offender,

his offense level must be enhanced according to his “offense statutory maximum.”

U.S.S.G. § 4B1.1. A defendant is a career offender if, inter alia, he “has at least

two prior felony convictions of either a crime of violence or a controlled substance

offense.” U.S.S.G. § 4B1.1(a). When a career offender’s offense statutory

maximum is life imprisonment, his offense level becomes 37. U.S.S.G.

§ 4B1.1(b). The term “offense statutory maximum” is defined to include increases

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that apply “because of the defendant’s prior criminal record (such sentencing

enhancement provisions are contained, for example, in 21 U.S.C. § 841(b)(1)(A),

(B), (C), and (D)).” U.S.S.G. § 4B1.1, cmt. n.2. When a defendant is a career

offender under § 4B1.1, his criminal history category becomes VI, regardless of his

criminal history points. U.S.S.G. § 4B1.1(b).

Gordon maintains the district court erroneously enhanced his sentence, and

he raises several arguments to support his claim. First, Gordon asserts the district

court improperly “double enhanced” his sentence by using his 1993 conviction for

sale of cocaine both to apply the § 851 enhancement and to determine his criminal

history category. This argument is without merit, however, because Gordon’s

criminal history score was determined by his status as a career offender, and the

Guidelines expressly instruct the district court to determine a career offender’s

offense level after applying the increased penalties set forth in § 841(b)(1)(B). See

U.S.S.G. § 4B1.1, cmt. n.2.

Second, Gordon challenges the district court’s use of his 1990 conviction for

possession of cocaine and his 1998 conviction for driving under the influence and

obstruction of a law enforcement officer to classify him as a career offender. With

respect to his 1990 conviction, Gordon maintains he was not represented by

counsel and unaware of the consequences of his guilty plea. We, however, decline

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to address this challenge because the 1990 conviction was not a factor in Gordon’s

career offender status and the same statutory range would apply even without this

conviction. Regarding his 1998 conviction, Gordon argues he reasonably

believed—and the Georgia Bureau of Investigation (GBI) reported—his offense

was a misdemeanor and, even if it was a felony, it falls outside the “heartland” of

offenses that should be used to support a career offender designation. Both these

arguments are unpersuasive. Gordon offers no evidence in support of his

contention that the GBI considered this offense to be a misdemeanor. Nor does he

provide any argument in support of his contention that this offense falls outside the

“heartland” of offenses that should support a career offender designation.

Accordingly, we affirm Gordon’s sentence.

AFFIRMED.

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