United States v. Woody Senat , 274 F. App'x 854 ( 2008 )


Menu:
  •                                                           [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT                    FILED
    ________________________         U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    April 24, 2008
    No. 07-12623                  THOMAS K. KAHN
    Non-Argument Calendar                 CLERK
    ________________________
    D. C. Docket No. 06-60353-CR-JIC
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    WOODY SENAT,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    _________________________
    (April 24, 2008)
    Before ANDERSON, BARKETT and HULL, Circuit Judges.
    PER CURIAM:
    Woody Senat appeals his 115-month sentence for possession of a firearm by
    a felon, in violation of 
    18 U.S.C. § 922
    (g)(1). When Senat was arrested on this
    charge, a search of his car revealed a 9 mm pistol loaded with 17 rounds of
    ammunition in a hidden, cut-out compartment in the back seat. Senat was
    acquitted of a second charge which arose out of a traffic stop in which two
    shotguns were found in the trunk of Senat’s car. At sentencing, the district court
    applied a two-level increase for an offense involving three to seven firearms,
    despite Senat’s acquittal on the charge pertaining to the two shotguns. The court
    also applied a two-level increase for an offense involving a stolen firearm.
    On appeal, Senat first argues that the district court’s application of the
    enhancement for the number of firearms was erroneous because the district court
    did not explicitly find, and the government did not prove, by a preponderance of
    the evidence, that he possessed two of the three firearms, and, even assuming that
    the government proved possession of the shotguns, that possession was acquitted
    conduct that was not relevant to the offense of conviction. Second, Senat argues
    that the district court erroneously applied an increase based on the unsupported
    finding that the firearm was stolen. He notes that, while the government stated, at
    a bench conference during the trial, that both the shotguns and the pistol were
    stolen, it never presented any evidence to support the claim, even after he objected
    at sentencing on the basis of lack of proof at trial. The government concedes error
    2
    on this issue.
    I.
    We review a district court’s factual findings for clear error and its
    application of the guidelines to those facts de novo. United States v. Kinard,
    
    472 F.3d 1294
    , 1297 n.3 (11th Cir. 2006). Specific offense characteristic
    § 2K2.1(b)(1)(A) requires a two-level increase for an offense involving between
    three and seven firearms. U.S.S.G. § 2K2.1(b)(1)(A). Once a defendant
    challenges a presentence investigation report (“PSI”) statement, the government
    bears the burden of proving the statement by a preponderance of the evidence, and,
    if used in guideline calculations, the district court must make an explicit factual
    finding as to the allegation. United States v. Lawrence, 
    47 F.3d 1559
    , 1566-67
    (11th Cir. 1995).
    In considering relevant conduct, the court must consider, inter alia, “all acts
    and omissions committed . . . or willfully caused by the defendant . . . that occurred
    during the commission of the offense of conviction, in preparation for that offense,
    or in the course of attempting to avoid detection or responsibility for that offense.”
    U.S.S.G. § 1B1.3(a)(1)(A). The commentary to § 1B1.3 states that offenses may:
    qualify as part of the same course of conduct if they are sufficiently
    connected or related to each other as to warrant the conclusion that
    they are part of a single episode, spree, or ongoing series of offenses.
    Factors that are appropriate to the determinations of whether offenses
    3
    are sufficiently connected or related to each other to be considered as
    part of the same course of conduct include the degree of similarity of
    the offenses, the regularity (repetitions) of the offenses, and the time
    interval between the offenses. When one of the above factors is
    absent, a stronger presence of at least one of the other factors is
    required.
    Id. cmt. (n.9(B)). We broadly interpret the provisions of the relevant conduct
    guideline. United States v. Behr, 
    93 F.3d 764
    , 765 (11th Cir. 1996). In
    determining relevant conduct, the district court may consider both uncharged and
    acquitted conduct. United States v. Hamaker, 
    455 F.3d 1316
    , 1336 (11th Cir.
    2006). Under our precedent, “nothing in Booker1 prohibits the courts from
    considering relevant conduct when the Sentencing Guidelines are applied as
    advisory.” United States v. Faust, 
    456 F.3d 1342
    , 1348 (11th Cir. 2006).
    Upon review of the record, and upon consideration of the briefs, we discern
    no reversible error as to this issue. Despite the fact that Senat was acquitted of the
    count charging him with possession of two shotguns, because he was convicted of
    possessing a pistol, and a preponderance of the evidence supported the finding that
    he possessed the shotguns, we affirm the district court’s application of a two-level
    increase for possessing three to seven firearms.
    II.
    We review a district court’s application of the guidelines to the facts de
    1
    United States v. Booker, 
    543 U.S. 220
    , 
    125 S.Ct. 738
    , 
    160 L.Ed.2d 621
     (2005).
    4
    novo. Kinard, 
    472 F.3d at
    1297 n.3. “[O]nce the court of appeals has decided that
    the district court misapplied the Guidelines, a remand is appropriate unless the
    reviewing court concludes, on the record as a whole, that the error was harmless,
    i.e., that the error did not affect the district court’s selection of the sentence
    imposed.” Williams v. United States, 
    503 U.S. 193
    , 203-04, 
    112 S.Ct. 1112
    , 1120-
    21, 
    117 L.Ed.2d 341
     (1192).
    As the government concedes, the district court improperly applied a two-
    level enhancement based on the assumption, without any evidence presented by the
    government, that the pistol was stolen, we vacate Senat’s sentence and remand for
    resentencing without this enhancement.
    AFFIRMED IN PART, VACATED AND REMANDED IN PART.
    5