The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14584 APRIL 27, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00035-CR-J-TEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLINTON GIVENS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 27, 2006)
Before DUBINA, CARNES and HULL, Circuit Judges.
PER CURIAM:
Clinton Givens appeals his 151 month sentence imposed after he pleaded
guilty to conspiracy to distribute a counterfeit substance alleged to be crack
cocaine in violation of 21 U.S.C. §§ 841(a)(2), 846. We affirm.
I.
Givens first argues that the district court erred by classifying him as a career
offender under United States Sentencing Guidelines § 4B1.1 (Nov. 1, 2004)
without requiring the government to allege his prior convictions and prove them to
a jury beyond a reasonable doubt. He urges us to disregard Almendarez-Torres v.
United States, 523 U.S. 224, 118 S. Ct. 1219 (1998), and to apply instead the
principles of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), to
find that the sentencing enhancement was unconstitutional.
We have rejected this argument several times. See, e.g., United States v.
Marseille, 377 F.3d 1249, 1257 & n.14 (11th Cir. 2004), cert. denied, 543 U.S.
1013, 125 S. Ct. 637 (2004); United States v. Thomas, 242 F.3d 1028, 1035 (11th
Cir. 2001), cert. denied, 533 U.S. 960, 121 S. Ct. 2616 (2001); United States v.
Guadamuz-Solis, 232 F.3d 1363, 1363 (11th Cir. 2000). We have done so even
after United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), and Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). See United States v. Gibson,
434 F.3d 1234, 1246 (11th Cir. 2006); United States v. Orduno-Mireles, 405 F.3d
960, 963 (11th Cir. 2005), cert. denied, __ U.S. __, 126 S. Ct. 223 (2005).
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Accordingly, because Givens’ sentence was not above the twenty-year
statutory maximum available, see 21 U.S.C. § 841(b)(1)(C), and because the prior
conviction exception is still good law, the district court did not err in using his
prior convictions to enhance his sentence under the advisory sentencing guidelines.
II.
Although Givens acknowledges that hearsay is admissible to support a
sentence enhancement, see, e.g., United States v. Baker, 432 F.3d 1189, 1254 n.68
(11th Cir. 2005), cert. denied, __ U.S. __, __ S. Ct. __ (2006), United States v.
Chau, 426 F.3d 1318, 1323 (11th Cir. 2005), United States v. Castellanos, 904 F.2d
1490, 1495–96 (11th Cir. 1990), he contends that the district court erred in
allowing the government to use testimonial hearsay to prove the existence of his
prior convictions without determining that the hearsay was reliable. See U.S.S.G.
§ 6A1.3(a) (“In resolving any dispute concerning a factor important to the
sentencing determination, the court may consider relevant information without
regard to its admissibility under the rules of evidence applicable at trial, provided
that the information has sufficient indicia of reliability to support its probable
accuracy.”). Givens also argues that the district erred in relying on testimonial
hearsay to establish that he was the same person named in the prior judgments and
convictions. “A challenge to the application of the sentencing guideline is a mixed
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question of law and fact.” United States v. Anderson, 326 F.3d 1319, 1326 (11th
Cir. 2003). “This Court reviews the district court’s findings of fact for clear error
and its application of the sentencing guidelines to those facts de novo.” Id.
Neither of Givens’ contentions has merit. The government produced
certified copies of Givens’ three prior convictions for cocaine-related offenses
committed by Givens in 1993, 1994, and 1998. See United States v. Wilson, 183
F.3d 1291, 1301 (11th Cir. 1999) (stating that the best approach to proving a prior
conviction is a certified copy of the conviction). The judgment in each of those
cases clearly indicates the nature of the offense as involving the sale or possession
of cocaine. Also, Baker County Sheriff’s Deputy Randy Crews testified at the
sentencing hearing that he was familiar with Givens, that he had learned of Givens’
arrest for the 1993 offense through his work, and that he had arrested Givens for
the 1998 offense. There is no indication that Crews’ testimony establishing Givens
as the same person involved in the prior offenses was unreliable. Moreover, the
district court correctly gave Givens “the opportunity to rebut the evidence or
generally to cast doubt upon its reliability.” See Castellanos, 904 F.2d at 1496.
Accordingly, the district court did not clearly err in finding that the evidence
established by a preponderance that Givens qualified as a career offender under the
sentencing guidelines. See United States v. Gay, 251 F.3d 950, 953 (11th Cir.
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2001) (“[T]he government must demonstrate all three elements [of U.S.S.G. §
4B1.1] by a preponderance of the evidence.”).
Finally, we note Givens’ contention that Shepard v. United States, 544 U.S.
13, 125 S. Ct. 1254 (2005), prohibits a sentencing court from considering hearsay
to establish the fact of a prior conviction or the identity of the person convicted. In
Shepard, the Supreme Court clarified the permissible scope of judicial fact-finding
by a court sentencing under the Armed Career Criminal Act, 18 U.S.C. § 924(e).
Id. at __, 125 S. Ct. at 1257–63. Even assuming Shepard applies in this guidelines
context, that decision allows a sentencing court to find the necessary facts about a
prior conviction from “conclusive records made or used in adjudicating guilt” in
the prior cases, id. at __, 125 S. Ct. at 1260, such as the charging instrument, the
plea agreement, any plea colloquy, and other “comparable judicial record,” id. at
__, 125 S. Ct. at 1263. Here, the necessary facts about Givens’ prior convictions
were found by the district court from the formal judgments of conviction in each of
those cases.
AFFIRMED.
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