The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 2, 2007
THOMAS K. KAHN
No. 06-13079
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 05-00012-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONALD LEE UBELE,
a.k.a. Duck,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(February 2, 2007)
Before BLACK, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Donald Lee Ubele appeals his convictions and sentences for possession of
firearms by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and
924(e)(1), and possession of an unregistered machine gun, in violation of 26
U.S.C. §§ 5861(d) and 5871. Ubele asserts four grounds for appeal, which we
address in turn.
I. DISCUSSION
A. Sixth Amendment
First, Ubele contends the district court erred in enhancing his sentence
pursuant to the Armed Career Criminal Act (ACCA) based on prior convictions
that were neither charged in the indictment nor proven to a jury beyond a
reasonable doubt, in violation of his Sixth Amendment rights.
We review properly preserved constitutional claims de novo, but reverse
only for harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).
In Almendarez-Torres v. United States, 118 S. Ct. 1219 (1998), the Supreme Court
held prior convictions could be considered and used to enhance a defendant’s
sentence without having been alleged in the indictment or proven beyond a
reasonable doubt. 118 S.Ct. at 1231-33. Subsequent decisions, namely, Apprendi
v. New Jersey, 120 S. Ct. 2348 (2000), Blakely v. Washington, 124 S. Ct. 2531
(2004), and United States v. Booker, 125 S. Ct. 738 (2005), have not disturbed that
2
holding. United States v. Camacho-Ibarquen, 410 F.3d 1307, 1316 (11th
Cir.), cert. denied, 126 S. Ct. 457 (2005). “Although recent decisions, including
Shepard v. United States, 125 S. Ct. 1254 (2005), may arguably cast doubt on the
future prospects of Almendarez-Torres’s holding regarding prior convictions, the
Supreme Court has not explicitly overruled Almendarez-Torres. As a result, we
must follow Almendarez-Torres.” Camacho-Ibarquen, 410 F.3d at 1316 n.3.
The district court did not violate Ubele’s Sixth Amendment rights when it
enhanced his sentence based on his prior convictions. Whether a district court can
enhance a sentence based on prior convictions neither alleged in the indictment
nor proven beyond a reasonable doubt survives on the continued vitality of
Almendarez-Torres.
B. Qualifying Prior Convictions
Second, Ubele asserts the district court erred in designating him as an armed
career offender because the record did not support that he had three prior
convictions to qualify him as an armed career criminal. Specifically, Ubele argues
that two of the alleged qualifying prior convictions do not constitute separate
offenses. According to Ubele, therefore, the Government failed to prove the
existence of the prior convictions by a preponderance of the evidence.
3
As an initial matter, we note Ubele’s objection was to the fact of having
three convictions, not to the character of the convictions. Thus, Shepard v. United
States, 125 S. Ct. 1254 (2005), which limits the sources a district court may
consider when looking at the underlying facts of a prior conviction, does not
apply. See United States v. Cantellano, 430 F.3d 1142, 1147 (11th Cir. 2005),
cert. denied, 126 S. Ct. 1604 (2006). By contrast, “[t]he fact of a prior conviction
clearly may be found by the district court.” Id. (emphasis added). Thus, the
district court did not err in relying on the PSI to determine whether Ubele had
three prior convictions.
To qualify as an armed career criminal, the defendant must violate 18
U.S.C. § 922(g) and have “three previous convictions by any court . . . for a
violent felony or a serious drug offense, or both, committed on occasions different
from one another.” 18 U.S.C. § 924(e)(1). Enhancement under the statute requires
three temporally distinct crimes, but convictions need not be obtained on separate
occasions. United States v. Jackson, 57 F.3d 1012, 1018 (11th Cir. 1995). “[S]o
long as predicate crimes are successive rather than simultaneous, they constitute
separate criminal episodes for purposes of the ACCA.” United States v. Pope, 132
F.3d 684, 692 (11th Cir. 1998).
4
A preponderance of the evidence supports that Ubele had three separate
convictions for the purposes of the ACCA. According to the PSI, Ubele’s
indictment showed that Ubele was charged with distributing cocaine on January
13, 1989, and with trafficking in cocaine on January 19, 1989.1 The PSI further
stated that pursuant to a plea agreement, Ubele was ultimately allowed to plead
guilty to two counts of possession of a controlled substance with intent to
distribute. Ubele submitted no evidence to rebut the PSI. Although the January
13, 1989, and January 17, 1989, crimes were charged in the same indictment and
sentenced at the same time, they are two separate criminal episodes for purposes of
the ACCA because the crimes were successive rather than simultaneous. See
Pope, 132 F.3d at 692, Jackson, 57 F.3d at 1018. Thus, a preponderance of the
evidence supports there were two separate crimes and the district court did not err
in applying the ACCA to enhance Ubele’s sentence.
C. Continuous Possession
Third, Ubele contends the evidence presented at trial was not sufficient to
establish he had dominion and control over the firearms alleged in the indictment
1
Ubele does not contest the third conviction used in determining his eligibility for the
ACCA.
5
and he did not possess the firearms through January 27, 2005, or at any time
reasonably near that date, as alleged in the indictment.
“[W]e review de novo whether there is sufficient evidence to support the
jury’s verdict.” United States v. Ortiz, 318 F.3d 1030, 1036 (11th Cir. 2003). We
will affirm the jury’s verdict “if a reasonable trier of fact could conclude that the
evidence establishes guilt beyond a reasonable doubt.” Id. (quotation omitted). On
review, the evidence is viewed “in the light most favorable to the government,
with all reasonable inferences and credibility choices made in the government’s
favor.” Id. (quotation omitted).
“Under 18 U.S.C. § 922(g)(1), it is unlawful for a felon to possess a firearm.
Section 922(g)(1) required the government to prove ‘three distinct elements:’
(1) that [Ubele] was a convicted felon; (2) that [Ubele] knew he was in possession
of a firearm; and (3) that the firearm affected or was in interstate commerce.”
United States v. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004). “Possession can
be shown by circumstantial as well as direct evidence. . . . [and] . . . can be either
actual or constructive[.]” United States v. Crawford, 906 F.2d 1531, 1535 (11th
Cir. 1990). “A defendant has constructive possession if he exercises ownership,
dominion, or control over the firearm. A defendant also has constructive
possession if he has the power and intention to exercise dominion or control. The
6
defendant may exercise that dominion and control either directly or through
others.” United States v. Gunn, 369 F.3d 1229, 1235 (11th Cir. 2004) (citations
omitted). Further, we have held that “possession is a course of conduct . . . . Proof
of possession of a firearm as a convicted felon on one day within an alleged
continuous possession is sufficient to support a conviction.” United States v.
Rivera, 77 F.3d 1348, 1351 (11th Cir. 1996) (quotation omitted).
At trial, Ubele stipulated that he was a convicted felon. Ubele and his
cousin, Chadwick Graham, purchased two gun safes from the Bass Pro Shop in
Savannah, Georgia for the purpose of storing their collected guns. Ubele
possessed the combination to access at least one of these safes. Ubele originally
stored the safes at Graham’s house and later moved the safes to a house belonging
to his girlfriend’s mother. Ubele accessed the safes to check and clean the guns.
Ubele also added another gun to the cache. None of the guns found in the safe
were manufactured in Georgia and all of the guns had traveled in interstate or
foreign commerce before Ubele took them into his possession. Further, the
evidence demonstrates Ubele knew the combinations needed to open the safes
through January 27, 2005, when he refused to disclose them to law enforcement
authorities. Accordingly, viewing the evidence in the light most favorable to the
Government, we conclude there was sufficient evidence to convict Ubele.
7
D. Constructive Amendment
Fourth, Ubele asserts the district court’s jury instruction permitted the jury
to find him guilty without finding the Government proved the element of
continuous possession beyond a reasonable doubt and impermissibly broadened
the bases for conviction beyond what was alleged in the indictment.
We perform a de novo review of jury instructions when the objecting party
claims that prejudice was caused by instructions that either misstated the law or
misled the jury. United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002).
In determining whether the given instructions reflected the law accurately, we
afford the district court wide discretion as to the style and wording employed in
the instructions. Id. The examination we undertake is to determine whether the
court’s charge, “considered as a whole, sufficiently instructs the jury so that the
jurors understand the issues involved and are not misled.” United States v. Shores,
966 F.2d 1383, 1386 (11th Cir. 1992) (quotation omitted).
“An amendment to an indictment occurs when the essential elements of the
offense contained in the indictment are altered to broaden the possible bases for
conviction beyond what is contained in the indictment.” United States v. Dennis,
237 F.3d 1295, 1299 (11th Cir. 2001) (quotation omitted). “A court’s jury
instruction that constructively amends an indictment constitutes reversible error
8
per se because the instruction violates a defendant’s Fifth Amendment right to be
tried only on charges presented by a grand jury and creates the possibility that the
defendant may have been convicted on grounds that the indictment did not allege.”
United States v. Behety, 32 F.3d 503, 508 (11th Cir. 1994).
The court properly instructed the jury the Government need only prove
beyond a reasonable doubt the offense was committed “on a date reasonably near
the date alleged” in the indictment, that is, January 27, 2005. On January 27,
2005, Ubele admitted to law enforcement authorities he knew the combinations
needed to open the safes and refused to disclose them. This fact supports a finding
on January 27, 2005, Ubele was able to access the guns stored in the safes and
exercised dominion and control over them. Accordingly, the district court’s
instruction to the jury did not constructively amend the indictment because it
would not have allowed the jury to convict Ubele on a charge other than those
alleged in the indictment.
9
II. CONCLUSION
The district court did not err in enhancing Ubele’s sentence pursuant to the
ACCA. Additionally, there was sufficient evidence to convict Ubele, and the
district court’s jury instruction was proper. We affirm Ubele’s convictions and
sentences.
AFFIRMED.
10