United States v. Andre Russell Simmons , 186 F. App'x 894 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 26, 2006
No. 05-15730 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00441-CR-T-17-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRE RUSSELL SIMMONS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 26, 2006)
Before TJOFLAT, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Appellant Andre Russell Simmons appeals his 77-month sentence, imposed
at re-sentencing for possession of a firearm by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2). On appeal, Simmons argues that the district
court erred in applying a four-level enhancement under U.S.S.G. § 2K2.1(b)(5)
when his possession of the firearm was merely incidental to, not “in connection
with,” another felony offense. Simmons also argues that, because the Sentencing
Guidelines created legally binding maximum sentences when he committed his
offense, his sentence could be no higher than the maximum sentence provided for
under the guidelines and based on only the facts that were charged in the
indictment. Simmons further argues that the retroactive application of the advisory
guidelines violated his due process rights and ex post facto principles.
I.
We “review[] the district court’s application and interpretation of the
sentencing guidelines under a de novo standard of review, but review[] its findings
of fact for clear error.” United States v. Rhind, 289 F.3d 690, 693 (11th Cir. 2002)
(citation omitted). A district court may use facts admitted by a defendant to
enhance his sentence. United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir.
2005). Applying the advisory guidelines, a district court may use a preponderance
of the evidence standard to make factual findings beyond the charges in the
indictment or a defendant’s admissions. United States v. Chau, 426 F.3d 1318,
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1324 (11th Cir. 2005).
Section § 2K2.1(b)(5) provides for a four-level enhancement “[i]f the
defendant . . . possessed any firearm . . . in connection with another felony
offense.” U.S.S.G. § 2K2.1(b)(5). This section of the guidelines does not define
the phrase “in connection with.” See U.S.S.G. § 2K2.1, comment. (n. 1). A district
court’s determination that a firearm was possessed “in connection with” another
felony offense is a factual one. See United States v. Whitfield, 50 F.3d 947, 949 &
n. 8 (11th Cir. 1995). We have refused to adopt a more restrictive approach of
interpreting “in connection with” used in other courts. United States v. Young, 115
F.3d 834, 837-38 (11th Cir. 1997). We have considered the definition of “in
connection with” in other sections of the guidelines and have determined that the
phrase “merely reflects the context of the defendant’s possession of the firearm”
and the firearm “does not have to facilitate the underlying offense.” Rhind, 289
F.3d at 695 (citations omitted). The enhancement may be applied when the two
felony offenses are for different conduct, but are committed contemporaneously.
United States v. Jackson, 276 F.3d 1231, 1234 (11th Cir. 2001).
After reviewing the record, we conclude that the district court did not err in
making the factual finding that Simmons possessed a firearm in connection with
armed trespassing, nor in applying a four-level enhancement under § 2K2.1(b)(5).
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II.
When a defendant raises and then knowingly withdraws an objection to his
sentence, we deem the objection waived and will not review it on appeal. United
States v. Masters, 118 F.3d 1524, 1526 (11th Cir. 1997). “The doctrine of invited
error is implicated when a party induces or invites the district court into making an
error. Where invited error exists, it precludes a court from invoking the plain error
rule and reversing.” United States v. Silvestri, 409 F.3d 1311, 1327-28 (11th Cir.),
cert. denied, 126 S. Ct. 772 (2005) (citation and quotation omitted).
We have held that “the use of extra-verdict enhancements in an advisory
guidelines system is not unconstitutional.” United States v. Rodriguez, 398 F.3d
1291, 1301 (11th Cir.) cert. denied, 125 S. Ct. 2935 (2005). We have also held
that the retroactive application of the remedial holding in Booker does not violate
ex post facto principles. United States v. Duncan, 400 F.3d 1297, 1307-08 (11th
Cir.), cert. denied, 126 S. Ct. 432 (2005).
We conclude from the record that, as Simmons specifically withdrew his
Blakely objection at the re-sentencing hearing, he has waived any constitutional
error based on Blakely, and we will not review that issue. Also, Simmons sought
re-sentencing in light of Booker, and, thus, invited the error of which he now
complains concerning retroactive application. Moreover, we are bound by prior
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precedent holding that the use of extra-verdict enhancements in an advisory
guidelines systems is not unconstitutional and that the retroactive application of the
remedial holding in Booker does not violate ex post facto principles. Accordingly,
we affirm Simmons’s 77-month sentence.
AFFIRMED.
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