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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-16125
Non-Argument Calendar
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D.C. Docket No. 7:15-cr-00022-HL-TQL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TAVARIS LAVON ROLLE,
a.k.a. Taz,
a.k.a. T,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(January 25, 2018)
Before WILLIAM PRYOR, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Tavaris Rolle appeals the 120-month, within-guideline sentence of
imprisonment he received after pleading guilty to possession of a firearm by a
convicted felon, in violation of
18 U.S.C. § 922(g)(1). Rolle raises several
challenges to the calculation of his guideline range, including whether he
possessed at least four firearms, see U.S.S.G. § 2K2.1(b)(1)(A), whether he
possessed a firearm in connection with another felony offense, see id.
§ 2K2.1(b)(6)(B), and whether the government proved that he had a prior state
felony conviction for sale of cocaine in 2003. After careful review, we affirm.
I.
By August 2012, Rolle was being investigated by law enforcement for
selling controlled substances from a residence in Abel, Georgia. After an
informant purchased cocaine from Rolle at the residence on August 3, law
enforcement obtained and executed a search warrant the following week. During
that search, officers found, among other things, drugs, over $10,000 in currency, a
Glock .40-caliber pistol, and ammunition. One week later, after learning that Rolle
possibly hosted dog fights at the residence, officers searched the surrounding area
and came across a red cooler, which held a backpack containing 366 grams of
marijuana and four additional firearms loaded with ammunition.
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After the initial search, state authorities arrested Rolle on state charges and a
state probation violation. His probation was revoked and he remained in state
custody until September 2014, when he was released on parole.
In November 2015, a federal grand jury indicted Rolle on one count of
possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1),
and he was arrested soon after. The indictment specifically charged him with
possession of the four firearms that were found in the red cooler outside of the
residence in 2012. In April 2016, a grand jury returned a superseding indictment
charging Rolle with additional offenses, including possession with intent to
distribute cocaine and marijuana, in violation of
21 U.S.C. § 841(a)(1), possession
of the same four firearms in furtherance of a drug-trafficking crime (possession
with intent to distribute marijuana), in violation of
18 U.S.C. § 924(c)(1)(A), and
use of a firearm during and in relation to a drug-trafficking crime (possession with
intent to distribute cocaine), in violation of § 924(c)(1)(A).
Shortly after he was arraigned on the superseding indictment, Rolle agreed
to plead guilty to the § 922(g)(1) offense contained in the original indictment,
without the benefit of a written agreement. During the plea colloquy, Rolle
admitted that he possessed the four firearms charged in the indictment. The
government represented at the plea hearing that it would move to dismiss the
superseding indictment at sentencing. It did not do so, however.
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Before sentencing, a U.S. Probation officer prepared Rolle’s presentence
investigation report (“PSR”) and ultimately recommended a guideline range of 120
months of imprisonment (reduced from 121 to 151 months due to the statutory
maximum) based on a total offense level of 29 and a criminal history category of
IV. The offense level included three enhancements relevant to this appeal: first,
an enhanced base offense level of 24 based on two prior state convictions for a
felony controlled-substance offense (sale of cocaine), U.S.S.G. § 2K2.1(a)(2);
second, a 2-level increase for possession of between three and seven firearms, id.
§ 2K2.1(b)(1)(A); and third, a 4-level increase for possession of a firearm in
connection with another felony offense, id. § 2K2.1(b)(6).
Rolle filed objections to the base-offense-level calculation and to the in-
connection-with enhancement. As for the base offense level, Rolle maintained that
the government failed to prove that he pled guilty to and was convicted of one of
the two sale-of-cocaine offenses (the “2003 conviction”). 1 As for the
§ 2K2.1(b)(6) enhancement, he argued that there was no evidence to support it,
since the firearms were found outside of the residence while he was in custody.
At sentencing, the district court heard testimony from a law-enforcement
agent involved in the search of the residence and considered state-court documents
1
Rolle also argued below that his prior convictions should not have counted because
adjudication of guilt was withheld under the Georgia First Offender Act, but he has abandoned
that issue on appeal by failing to raise it in his briefing to this Court. See United States v.
Jernigan,
341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (issues not briefed on appeal are deemed
abandoned).
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submitted by the government both before and during the sentencing hearing.
Based on these records and the agent’s testimony, the district court overruled
Rolle’s objections, adopted the PSR’s recommendations, and then sentenced Rolle
to the statutory maximum of 120 months of imprisonment. Rolle now brings this
appeal.
II.
Before addressing the merits of the appeal, we pause to consider the
significance of the superseding indictment. We asked the parties to address this
issue due to its potential effect on our jurisdiction. The government submits that
the superseding indictment remains pending but that we have jurisdiction because
Rolle’s appeal is from a final judgment on the original indictment. Rolle responds
that the superseding indictment is no longer pending, but he agrees with the
government that, even if it is, we have jurisdiction over this appeal.
Our review indicates that the superseding indictment against Rolle remains
pending before the district court. “A superceding indictment may be returned at
any time before a trial on the merits[,]” and “two indictments may be outstanding
at the same time for the same offense if jeopardy has not attached to the first
indictment.” United States v. Stricklin,
591 F.2d 1112, 1115 n.1 (5th Cir. 1979)2;
see United States v. Del Vecchio,
707 F.2d 1214, 1216 (11th Cir. 1983) (same).
2
This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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Under Rule 48, Fed. R. Crim. P., 48(a), the government must obtain leave of court
before dismissing an indictment. Because the government did not move to dismiss
the superseding indictment against Rolle, it remains pending below.
Although the superseding indictment remains pending, we agree with both
parties that we have jurisdiction over this appeal. Rolle has been convicted and
sentenced to a term of imprisonment on the original indictment. See United States
v. Muzio,
757 F.3d 1243, 1248 (11th Cir. 2014) (holding, where the issue of
restitution remained unresolved, that the criminal judgment was “final for purposes
of appeal because it sentenced [the defendant] to a term of imprisonment”);
id. at
1249 (“The Court has . . . plainly held that the sentence is the judgment for
purposes of permitting appeal.”). The judgment sentencing Rolle to a term of
imprisonment is sufficiently final to support our exercise of jurisdiction.
Furthermore, the government represents that, as reflected in its comments
during the plea hearing, it does not intend to prosecute Rolle on the charges set
forth in the superseding indictment. And it advises that, if we find that we lack
jurisdiction in this appeal, it “will move in the district court for dismissal of the
five counts of the superseding indictment as to Rolle.” We find that dismissal of
the superseding indictment is not necessary before we may resolve this appeal, but
we expect that the government will so move after the resolution of this appeal.
Accordingly, we turn to the merits of Rolle’s appeal.
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III.
When considering the district court’s resolution of guideline issues, we
review legal issues de novo, factual findings for clear error, and the court’s
application of the sentencing guidelines to the facts with “due deference.”
18
U.S.C. § 3742(e); United States v. Rothenberg,
610 F.3d 621, 624 (11th Cir. 2010);
United States v. Williams,
340 F.3d 1231, 1238–39 (11th Cir. 2003) (holding that
the deference that is due depends on the nature of the question presented). A
district court’s choice between two reasonable constructions of the evidence cannot
be clearly erroneous. United States v. Almedina,
686 F.3d 1312, 1315 (11th Cir.
2012). We will not disturb a district court’s factual findings unless we are firmly
convinced that a mistake has been made.
Id.
We review for clear error the district court’s determination that Rolle
possessed a firearm “in connection with” another felony offense because it
involves application of a legal standard to a specific fact pattern. See United States
v. Carillo-Ayala,
713 F.3d 82, 88 (11th Cir. 2013) (“[W]e generally review a
district court’s application of the [in-connection-with] standard to ‘a detailed fact
pattern’ for clear error.”); United States v. Whitfield,
50 F.3d 947, 949 & n.8 (11th
Cir. 1995) (“[T]he district court’s factual determination that the weapon was used
or possessed ‘in connection with’ the burglaries was not clearly erroneous.”
(emphasis omitted)).
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The district court may base its sentencing determinations on the defendant's
admissions during his guilty plea, undisputed statements in the PSR, or evidence
presented at the sentencing hearing. United States v. Wilson,
884 F.2d 1355, 1356
(11th Cir. 1989). The government bears the burden of establishing the facts
necessary to support a sentencing enhancement by a preponderance of the
evidence. Almedina, 686 F.3d at 1315. “The district court must ensure that the
Government carries its burden by presenting reliable and specific evidence.” Id.
IV.
Rolle argues that the district court erred in calculating his guideline range in
three ways. We address each in turn.
A.
Rolle first argues that the government failed to prove the existence of the
2003 conviction for felony sale of cocaine. That conviction both added criminal-
history points and was used to enhance his base offense level under U.S.S.G.
§ 2K2.1(a)(2), which provides for an enhanced base offense level of 24 if the
defendant has “at least two [prior] felony convictions of either a crime of violence
or a controlled substance offense.”
In determining the existence of a prior conviction, a sentencing court may
use any “sufficiently reliable” information to support its finding, regardless of its
admissibility at trial. United States v. Wilson,
183 F.3d 1291, 1301 (11th Cir.
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1999). The Federal Rules of Evidence do not apply to sentencing proceedings.
Fed. R. Evid. 1101(d)(3).
Here, the government produced substantial and sufficiently reliable evidence
indicating that Rolle had two prior Georgia convictions, including the 2003
conviction, for sale of cocaine, which is a felony. The documents submitted by the
government—including arrest reports, charging and plea documents, a judgment of
conviction, and related orders—establish with reasonable certainty that Rolle was
arrested on two different occasions for distinct acts of selling cocaine and that he
pled guilty to both offenses. The fact that the district court did not formally admit
these documents into evidence is irrelevant because the sentencing proceeding is
not a trial and it is not governed by the Federal Rules of Evidence. Accordingly,
the district court did not clearly err in determining that Rolle had two prior
convictions for sale of cocaine. As a result, the court properly included both
convictions, included the 2003 conviction, when calculating his guideline range.
B.
Rolle next contends that the evidence failed to show that he possessed a
firearm “in connection with” another felony offense. He maintains that he was in
state custody at the time the weapons were found and that “there was no evidence
linking Mr. Rolle to the firearms.”
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Section 2K2.1(b)(6)(B) provides for a four-level enhancement where the
defendant “used or possessed any firearm or ammunition in connection with
another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). Application Note 14
elaborates that subsection (b)(6)(B) applies “if the firearm or ammunition
facilitated, or had the potential of facilitating, another felony offense.” Id. § 2K2.1
cmt. n.14(A). The Guidelines specify that “in the case of a drug trafficking offense
in which a firearm is found in close proximity to drugs,” the application of
subsection (b)(6)(B) “is warranted because the presence of the firearm has the
potential of facilitating another felony offense.” Id. § 2K2.1 cmt. n.14(B).
As we explained in Carillo-Ayala, our case law is consistent with
Application Note 14 in the commentary to § 2K2.1 because we have “consistently
recognized that a firearm which facilitates or has the potential to facilitate an
offense is possessed ‘in connection with’ that offense.” Carillo-Ayala, 713 F.3d at
93 (applying a different guideline, U.S.S.G. § 5C1.2(a)(2), but broadly reviewing
our “cases interpreting guidelines that require a ‘connection’”). We have stated
that “[a] firearm found in close proximity to drugs or drug-related items simply
‘has’—without any requirement for additional evidence—the potential to facilitate
the drug offense.” Id. at 92. That is because “[a] firearm in proximity to drugs . . .
has the potential to be used as a weapon.” Id. at 95–96.
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Here, the district court did not clearly err in finding that Rolle possessed a
firearm in connection with another felony offense for purposes of the four-level
enhancement under § 2K2.1(b)(6)(B). Agent Jason Seacrist testified at the
sentencing hearing that law-enforcement officers found four loaded firearms and
366 grams of marijuana together in a red cooler outside of the residence where
Rolle was arrested for selling controlled substances. Seacrist also testified that
drugs, money, and another firearm were found inside the residence.
Rolle claims that “there was no evidence that [he] possessed the firearms in
the cooler.” But he admitted to that exact fact during his guilty plea. The court
was permitted to rely on that admitted conduct at sentencing. See Wilson,
884 F.2d
at 1356. Combined with the other evidence before the district court, Rolle’s
constructive possession of loaded firearms that were found in close proximity to a
large amount of marijuana was sufficient for the court to reasonably conclude that
Rolle possessed the firearms in connection with a felony drug-trafficking offense.
See Carillo-Ayala, 713 F.3d at 95–96; U.S.S.G. § 2K2.1 n.14(A).
C.
Finally, Rolle argues for the first time on appeal that the district court erred
in applying a two-level enhancement under U.S.S.G. § 2K2.1(b)(1)(A) based on a
finding that the offense involved between three and seven firearms. Because Rolle
admitted during his guilty plea that he unlawfully possessed four firearms, in
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violation of
18 U.S.C. § 922(g)(1), he cannot show that the court erred, plainly or
otherwise, in relying on that admission to apply the enhancement under
§ 2K2.1(b)(1)(A). The fact that the court did not specifically reference Rolle’s
admission is largely irrelevant, because “the record clearly reflects the basis for the
enhancement and supports it.” United States v. Taylor,
88 F.3d 938, 944 (11th Cir.
1996) (holding that, even where the court is required to make “individuaized
findings” to support an enhancement, a remand is not necessary where “the record
clearly reflects the basis for the enhancement and supports it”).
V.
For the reasons stated, the district court did not err in calculating Rolle’s
guideline range. Because Rolle does not otherwise challenge the reasonableness of
his 120-month sentence, we affirm.
AFFIRMED.
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