United States v. Lorenzo Lance Boles , 317 F. App'x 961 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 4, 2009
No. 08-13939 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00382-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LORENZO LANCE BOLES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(March 4, 2009)
Before CARNES, BARKETT and KRAVITCH, Circuit Judges
PER CURIAM:
Lorenzo Lance Boles challenges his 30-month sentence for possession of an
unregistered short-barreled shotgun, pursuant to 26 U.S.C. § 5861(d). Specifically,
Boles contends that the district court erred in enhancing his sentence under
U.S.S.G. §2K2.1(b)(4)(A) by finding that the gun was stolen.
The sentencing guidelines provide for an increase in a defendant’s base
offense level by two points if the offense involved a stolen firearm. U.S.S.G.
§ 2K2.1(b)(4)(A). At his sentencing hearing, Boles objected to that enhancement.
“When a defendant objects to a factual finding that is used in calculating his
guideline sentence, the government bears the burden of establishing the disputed
fact by a preponderance of the evidence.” United States v. Moriarty, 429 F.3d
1012, 1022 (11th Cir. 2005) (quotation and alterations omitted). Here the district
court found, based on a preponderance of the evidence, that Boles’ sawed-off
shotgun had been stolen. We review that finding only for clear error. United
States v. Rodriguez-Lopez, 363 F.3d 1134, 1136-37 (11th Cir. 2004) (quotation
omitted).
Boles contends that the district court clearly erred because the government
did not prove the gun was stolen. We disagree. We need look no further than
Boles’ own statements. In a post-arrest interview, Boles told Agent Luis Valoze
that the man who sold him the gun had said that the gun was stolen. Boles also
told the agent that he purchased the gun for $10. Agent Valoze testified to those
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facts at the sentencing hearing. Boles argues that his statements are insufficient to
establish that the gun was stolen because they are hearsay and otherwise unreliable.
Even if Boles’ statements contain hearsay, they may be considered during
sentencing because they contain “sufficient indicia of reliability.” United States v.
Gordon, 231 F.3d 750, 760 (11th Cir. 2000); see also U.S.S.G. § 6A1.3(a). Boles’s
statements were made during a videotaped interview shortly after his arrest. He
described in detail how he acquired the weapon and he told the officers that the
man who sold it to him had stolen the weapon from another man’s house on the
west side of Savannah, Georgia. The district court did not err in relying on those
statements. Based on Boles’ testimony and the extremely low purchase price for
the gun—$10—we are not left with a “definite and firm conviction that a mistake
has been committed” in the district court’s findings of fact. See United States v.
Foster, 155 F.3d 1329, 1331 (11th Cir. 1998). The district court properly enhanced
Boles sentence under U.S.S.G. § 2K2.1(b)(4)(A).
AFFIRMED.
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