FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEBRUARY 8, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-12715

Non-Argument Calendar

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D. C. Docket No. 03-00073-CR-OC-10-GRJ

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

GREGORY MCKINNIES, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Middle District of Florida

_________________________

(February 8, 2006)

Before TJOFLAT, ANDERSON and WILSON, Circuit Judges.

PER CURIAM:

Gregory McKinnies appeals his conviction for conspiracy to distribute
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cocaine base (crack), in violation of 21 U.S.C. § 846, arguing that: (1) he suffered

reversible error as a result of the district court admitting into evidence his coconspirator’s statement to a non-co-conspirator; and (2) 21 U.S.C. §§ 841 and 846

are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120

S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny. 

I. Admission of Co-Conspirator’s Statement

McKinnies argues on appeal that the district court erred in admitting into

evidence co-conspirator Aaron Bostic’s (Aaron’s) statement to non-co-conspirator

Erica Young, because it was allegedly not made in furtherance of the conspiracy. 

Aaron’s statement was: “Yeah ‘cause luckily that thing is I guess they didn’t find it

you know what I’m talking about?” 

We review the district court’s evidentiary rulings for a “clear abuse of

discretion.” United States v. Tinoco, 304 F.3d 1088, 1119 (11th Cir. 2002). There

is no reversible error where the disputed evidence established the same facts from

testimony already properly admitted into the record. See United States v. Hock,

995 F.2d 195, 197 (11th Cir. 1993). 

Further, we review the district court’s factual finding that a statement was

made in furtherance of a conspiracy under the clearly erroneous standard. United

States v. Tokars, 95 F.3d 1520, 1538 (11th Cir. 1996). A district court’s factual
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finding that a statement was made in furtherance of the conspiracy is clearly

erroneous if, after reviewing the record, we are “left with a definite and firm

conviction that a mistake has been committed.” United States v. Van Hemelryck,

945 F.2d 1493, 1498 n.3 (11th Cir. 1991) (internal quotations and citation

omitted). Although otherwise inadmissible as hearsay, a statement by a coconspirator is admissible if the government proves, by a preponderance of the

evidence, that the statement was made during the course of, and in furtherance of,

the conspiracy. Fed.R.Evid. 801(d)(2)(E); Van Hemelryck, 945 F.2d at 1497-98. 

The district court did not clearly err in finding that Aaron’s statement to

Young was made in furtherance of the conspiracy because Aaron testified that the

statement was about the crack that he had loaned, or “fronted,” McKinnies. See

Tinoco, 304 F.3d at 1119; Van Hemelryck, 945 F.2d at 1497-98. Additionally, the

statement was merely cumulative of other evidence establishing that McKinnies

had kept the crack in his impounded rental car, as Aaron testified about two

conversations that he had with McKinnies in which McKinnies told him that the

police had not found the crack in the impounded car. See Hock, 995 F.2d at 197. 

Accordingly, the district court’s admission of this statement was not an abuse of

discretion constituting reversible error. 

II. Constitutionality of §§ 841 and 846
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McKinnies further argues that we erred, in United States v. Sanchez, 269

F.3d 1250 (11th Cir. 2001) (en banc), in holding that § 841(b) is not facially

unconstitutional in light of Apprendi and its progeny. He urges us, instead, to

adopt the Ninth Circuit’s reasoning in United States v. Buckland, 259 F.3d 1157,

1163-68 (9th Cir. 2001), reversed, 289 F.3d 558 (9th Cir. 2002) (en banc), and

asserts that Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403

(2004), strengthens his argument. 

We typically review constitutional issues de novo, but where, as here, the

defendant failed to raise his constitutional claim in the district court, we have

discretion whether to address the issue. See United States v. Wright, 392 F.3d

1269, 1280 (11th Cir. 2004), cert. denied, 125 S.Ct. 1751 (2005). A prior panel

decision is binding precedent that only can be overturned by our Court sitting en

banc. Morrison v. Amway Corp., 323 F.3d 920, 929 (11th Cir. 2003).

In Apprendi, the Supreme Court held that any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must be submitted to a jury

and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. at

2362-63. In Sanchez, we limited the scope of Apprendi to when judge-decided

facts increase a sentence above the statutory maximum, stating that “§ 841 is

impacted by Apprendi but only to the limited extent that judge-decided facts
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actually increase a defendant’s sentence above the prescribed statutory maximum.” 

See Sanchez, 269 F.3d at 1268. We also relied on Sanchez to reject a facial

challenge to 21 U.S.C. § 960 in United States v. Tinoco, 304 F.3d 1088, 1098-99

(11th Cir. 2002). 

We reject McKinnies’s request to declare §§ 841 and 846 unconstitutional. 

First, McKinnies’s sentence was imposed based upon the jury’s finding that he

conspired with intent to distribute 50 grams or more of crack. Second, Sanchez

and Tinoco–our prior decisions that §§ 841 and 960 are constitutional after

Apprendi–are binding precedent. See Morrison, 323 F.3d at 929. For all of these

reasons, McKinnies’s argument that §§ 841 and 846 are unconstitutional must fail. 

Upon review of the record and upon consideration of both parties’ briefs, we

find no reversible error. 

AFFIRMED.