United States v. Carlos Montes , 523 F. App'x 634 ( 2013 )

Case: 12-16058 Date Filed: 07/15/2013 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-16058
Non-Argument Calendar
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D.C. Docket No. 9:12-cr-80126-DMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS MONTES Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 15, 2013)
Before CARNES, BARKETT and BLACK, Circuit Judges.
PER CURIAM:
Case: 12-16058 Date Filed: 07/15/2013 Page: 2 of 3
After pleading guilty to one count of being a felon in possession of a firearm
and ammunition in violation of 18 U.S.C. § 922(g)(1), Carlos Montes appeals his
48-month sentence. Montes claims the district court clearly erred in applying a
two-level sentencing enhancement pursuant to U.S.S.G. § 2K2.1(b)(4)(A), which
applies to offenses involving a stolen firearm.
We review the district court’s factual findings for clear error, and application
of the sentencing guidelines to those facts de novo. United States v. Gupta, 572
F.3d 878, 887 (11th Cir. 2009). To find clear error, we must have a definite and
firm conviction, after viewing all the evidence, that a mistake has been made.
United States v. Foster, 155 F.3d 1329, 1331 (11th Cir. 1998).
When a defendant objects to a factual finding that forms the basis of a
sentencing decision, the Government bears the burden of establishing the disputed
fact by a preponderance of the evidence. United States v. Agis-Meza, 99 F.3d
1052, 1055 (11th Cir. 1996). The preponderance standard requires the trier of fact
to believe the existence of the disputed fact is more probable than the fact’s
nonexistence. United States v. Almedina, 686 F.3d 1312, 1315 (11th Cir. 2012). It
is the district court’s role, as factfinder, to evaluate the credibility of witnesses.
See United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). We view
the district court’s credibility determinations with great deference. United States v.
Gregg, 179 F.3d 1312, 1316 (11th Cir. 1999).
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Case: 12-16058 Date Filed: 07/15/2013 Page: 3 of 3
The district court did not clearly err in concluding that the firearm was
stolen. The Government’s witness testified that a firearm she owned was stolen,
that she reported the theft to the police, and that she still did not have the gun on
the date of the sentencing hearing. Moreover, a records check revealed that the
gun in Montes’s possession at the time of his arrest had been reported as stolen by
the Government’s witness. Although Montes presented evidence that the police
did not believe the witness’s report of the theft, that evidence primarily concerned
whether or not the witness’s boyfriend stole the gun. The district court
acknowledged the issues regarding the witness’s credibility, but reasoned that the
inconsistencies did not concern whether the gun was in fact stolen. The district
court chose to accept the witness’s in-court testimony that the gun was stolen, and
this testimony was not improbable or unreasonable. See Ramirez-Chilel, 289 F.3d
at 749 (noting that we must accept credibility assessments of the district court
unless the testimony it credits is “so inconsistent or improbable on its fact that no
reasonable factfinder could accept it”). Accordingly, the district court did not
clearly err in finding it was more likely than not that the firearm was stolen, such
that the two-level enhancement under U.S.S.G. § 2K2.1(b)(4)(A) was proper.
AFFIRMED.
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