[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                     FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              December 28, 2007
                              No. 07-10396                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                      D. C. Docket No. 05-00031-CR-6

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

ERVIN MINCEY,
a.k.a. Debo,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Southern District of Georgia
                      _________________________

                            (December 28, 2007)

Before BARKETT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Ervin Mincey appeals his conviction and 360-month sentence for
distribution of crack cocaine under 21 U.S.C. § 841(a)(1). On appeal, Mincey

argues first that the district court erroneously denied his motion to suppress

statements that he made during a post-indictment interview with Agent Kent

Munsey. Second, Mincey argues that the district court erred by admitting evidence

of his prior convictions under Federal Rule of Evidence 404(b). Finally, Mincey

appeals his 360-month sentence as unreasonable. For the reasons stated below, we

affirm both his conviction and sentence.

                                1. Motion to Suppress

      We review the district court’s denial of a defendant’s motion to suppress

under a mixed standard of review, examining the district court’s findings of fact

for clear error and the district court’s application of law to those facts de novo.

United States v. Ramirez, 

, 1235-36 (11th Cir. 2007), cert. denied,

(2007). The court’s factual findings are construed in the light most

favorable to the prevailing party. 

undisputed that during his arraignment, Mincey requested court-

appointed counsel. Where an accused invokes his right to counsel, government

authorities may not subject him to further interrogation “until counsel has been

made available to him, unless the accused himself initiates further

communications, exchanges, or conversations with the police.” Edwards v.



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Arizona, 

, 484-85 (1981); see also Michigan v. Jackson, 

, 630-32 (1986). However, “after a knowing and voluntary waiver of the

Miranda rights, law enforcement officers may continue questioning until and

unless the suspect clearly requests an attorney.”1 Davis v. United States, 

, 461 (1994).

       Upon close review of the record and the parties’ briefs, we discern no error

with respect to the denial of Mincey’s motion to suppress. In this case, the district

court found that although Mincey requested the assistance of counsel at his

arraignment, it was Mincey that initiated the interview with Agent Munsey. The

videotape of the interview depicts Agent Munsey beginning by asking Mincey, “So

what’s up?” When Mincey began talking, Agent Munsey stopped him to read him

his Miranda rights.2 Agent Munsey paused after each one and asked Mincey if he

understood. Mincey never indicated that he did not understand nor that he wished

to invoke his right to the presence of counsel, nor did he ever request to terminate

the interview. Mincey indicated that he was interested in finding out how he could

cooperate with police investigations to lower his own sentence, and he freely

       1
           Miranda v. Arizona, 

(1966).
       2
           Although on appeal Mincey asserts both his Fifth and Sixth Amendment rights to
counsel, where Miranda warnings are provided at a post-indictment, custodial interrogation, as is
the case here, a knowing and voluntary waiver of his Miranda right to counsel operates as a valid
waiver of his Sixth Amendment right to have counsel present at the interrogation. See Patterson
v. Illinois, 

, 292-300 (1988).

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discussed his knowledge of and experience in the drug trade.

      Moreover, Mincey does not allege that he was subjected to any physical or

psychological pressure, or that the interview was unduly long. Although Mincey

alleges that “certain statements made by [Agent Munsey] implied that ‘he would

go to bat’ for [Mincey] in exchange for information of assistance to their

investigations,” Mincey has not offered any evidence that Agent Munsey coerced

or deceived him.

      Finally, Mincey testified that he did not understand the nature of his Miranda

rights, and that he “thought [Agent Munsey] was like an attorney.” However,

Mincey had seven prior arrests and four felony convictions, and therefore, he was

“no novice to law enforcement procedures.” United States v. Gaddy, 

, 1312 (1990). More importantly, when asked by the government if he

discussed his involvement in the drug trade with Agent Munsey, Mincey replied, “I

ask for my Fifth Amendment on that.” Given Mincey’s background and conduct at

trial, the district court did not err in concluding that Mincey had the requisite

knowledge of his rights and knowingly waived his right to counsel during the

videotaped interview. Accordingly, we affirm the denial of his motion to suppress.

                          2. Evidence of Prior Convictions

      Mincey argues that the district court erred in admitting evidence of his prior



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convictions under Federal Rule of Evidence 404(b). Because Mincey failed to

challenge the government’s use of his prior convictions under Rule 404(b) in either

his motion in limine or at trial, we will review only for plain error. United States v.

Jernigan, 

, 1280 (11th Cir. 2003).

       Rule 404(b) provides that evidence of other acts “is not admissible to prove

the character of a person. . .” but that such evidence “may be admissible for other

purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake . . . .”

      Mincey argues that the district court plainly erred in admitting evidence of

his prior convictions under Rule 404(b) because the “prejudicial impact of this

evidence far outweighed its negative probative value.” However, the evidence

was probative on the issue of intent, and the court twice gave the jurors instructions

to limit the prejudicial effect. As a result, we conclude that the district court did

not plainly err in admitting evidence of his prior convictions under Rule 404(b).

We also find meritless Mincey’s cursory challenge to the introduction of the video

taped interview.

                     3. Reasonableness of 360-Month Sentence

      Mincey argues that his sentence of 360 months is unreasonable. He also

asserts that the Supreme Court’s decision in Almendarez-Torres v. United States,



                                            5


(1998), authorizing the use of prior convictions under a penalty

enhancement provision without alleging them in the indictment nor proving them

to the jury, is no longer good law. Finally, Mincey argues that we should revisit

and replace the reasonableness standard of reviewing sentences.

      As an initial matter, we have held that we will continue to follow

Almendarez-Torres “unless and until the Supreme Court expressly overrules [it].”

United States v. Greer, 

, 1273 (11th Cir. 2006). Furthermore, the

Supreme Court held in United States v. Booker, 

, 261 (2005), that

appellate courts are to apply a reasonableness standard in reviewing sentences, and

we deny Mincey’s request that we revisit and replace that standard in reviewing his

sentence. Based on the record, we find Mincey’s 360-month sentence, at the low-

end of the appropriate guidelines range, reasonable.

AFFIRMED.




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