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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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Nos. 17-11943; 17-11949
Non-Argument Calendar
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D.C. Docket Nos. 1:11-cr-00043-CG-B-1; 1:16-cr-00231-CG-N-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROY DARWOOD RAY,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Alabama
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(December 29, 2017)
Before WILLIAM PRYOR, JULIE CARNES, and ANDERSON, Circuit Judges.
PER CURIAM:
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In 2011, Defendant Roy Ray was convicted of being a felon in possession of
a firearm and sentenced to 70 months’ imprisonment. Defendant was released in
2016 and before expiration of his three-year term of supervised release, he pled
guilty to being a felon in possession of ammunition. He was sentenced to 134
months’ imprisonment, consisting of 110 months’ imprisonment on the new felon-
in-possession conviction and a consecutive 24-month sentence for violating the
terms of his supervised release. On appeal, Defendant challenges a four-level
enhancement he received under U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm
or ammunition in connection with another felony offense. He also argues that his
sentence is substantively unreasonable. After careful review, we affirm.
I. BACKGROUND
A. Facts1
On June 21, 2016, Detective Vincent Gazzier of the Mobile County Sheriff’s
Office responded to a dispatch call regarding two robberies that had occurred in the
North Ann Street and Saint Stephens Area. The first robbery occurred around
10:30 PM in the area of North Ann. The victim reported that a bald, black male
with facial hair had approached him with a semiautomatic handgun and demanded
money. The victim described the suspect as being five-foot-eleven-inches,
1
The facts are taken from the testimony presented at the sentencing hearing. See United States
v. Polar,
369 F.3d 1248, 1255 (11th Cir. 2004) (“The district court’s factual findings for
purposes of sentencing may be based on, among other things, evidence heard during [the] trial,
undisputed statements in the [PSR], or evidence presented during the sentencing hearing.”).
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between 230 to 250 pounds, and wearing a red shirt and dark pants. The second
robbery occurred three blocks away approximately ten minutes later. That victim
reported that he was on his bicycle when a black male pointed what looked like a
.40-caliber semiautomatic weapon at him and demanded the bicycle. This victim
provided the same description of the robbery suspect as the victim in the first
robbery.
Approximately one hour after the robberies, an officer patrolling the area
observed an individual matching the description of the robbery suspect.
Specifically, the individual, later identified as Defendant, appeared to be five-foot-
eleven-inches, was wearing a red shirt and dark pants, and was heavy-set, bald, and
had a beard. When the officer approached, Defendant fled and a brief foot-chase
ensued. Defendant was subsequently apprehended. Both robbery victims were
shown a photo lineup. One victim identified Defendant; the other victim was not
able to identify anyone in the lineup. Following Defendant’s arrest, he was found
in possession of nine-millimeter ammunition. Neither a firearm nor a bicycle was
recovered from the scene.
B. Procedural History
In light of the events discussed above, the probation officer filed a petition in
district court seeking to revoke Defendant’s supervised release. According to the
petition, Defendant violated the conditions of his supervised release by: (1)
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admitting to consuming alcohol; (2) being found in possession of ammunition on
June 21, 2016; and (3) being arrested and charged with two counts of first-degree
robbery on June 21, 2016.
A federal grand jury subsequently charged Defendant with being a felon in
possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). Defendant pled
guilty without a plea agreement. The district court scheduled a combined
sentencing and revocation hearing.
Prior to that hearing, the probation officer prepared a Presentence
Investigation Report (“PSR”). The PSR assigned Defendant a base offense level of
24 under U.S.S.G. § 2K2.1(a)(2). He also received a four-level enhancement
under § 2K2.1(b)(6)(B) because he used or possessed a firearm or ammunition in
connection with another felony offense. With a three-level reduction for
acceptance of responsibility, Defendant’s total offense level was 25. Based on a
total offense level of 25 and a criminal history category of VI, Defendant’s
guideline range was 110 to 137 months’ imprisonment. However, because the
offense carried a 120-month statutory maximum sentence, the guideline range
became 110 to 120 months’ imprisonment. Defendant objected to the four-level
enhancement under § 2K2.1(b)(6)(B) for possessing a firearm or ammunition in
connection with another felony offense.
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At the combined sentencing and revocation hearing, the Government
presented testimony to support the § 2K2.1(b)(6)(B) enhancement. Detective
Vincent Gazzier testified about the details of the two robberies that occurred on
June 21, 2016. Defendant’s probation officer, Thomas Cost, testified that
Defendant denied participating in the robberies but admitted to having possessed
the nine-millimeter ammunition. Defendant told Cost that a “crackhead” had
offered him a box of nine-millimeter ammunition and he purchased it for his uncle
who works as a security guard.
Following the witness testimony, Defendant argued that the
§ 2K2.1(b)(6)(B) enhancement was not applicable because the Government had
not demonstrated that the ammunition he possessed facilitated another felony
offense. Specifically, Defendant was found in possession of nine-millimeter
ammunition but one of the victims had alleged that Defendant possessed a .40-
caliber firearm. Because the ammunition did not match the firearm—and
Defendant was not even found in possession of a firearm—the Government could
not establish that the ammunition facilitated another felony offense.
The district court rejected Defendant’s argument and concluded that the
Government had established by a preponderance of the evidence that the four-level
enhancement under § 2K2.1(b)(6)(B) applied. The court explained that the
robbery victim could have easily mistaken a semiautomatic firearm for a .40-
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caliber firearm and that the ammunition possessed by Defendant would fit a
semiautomatic firearm. The court found Defendant’s explanation that he had
purchased the ammunition from a “crackhead” to be improbable. Moreover, the
court stated that Defendant’s clothing matched the description provided by the
victims and that Defendant “somehow ditched” the firearm between the time of the
robberies and when he was arrested.
As to the § 922(g) violation, the district court calculated a guideline range of
110 to 120 months’ imprisonment and noted that a high-end sentence was
appropriate. However, the court credited Defendant with the time spent in custody
for a related offense and sentenced him to 110 months’ imprisonment. As to the
violation of supervised release, the district court sentenced Defendant to 24
months’ imprisonment to be served consecutively to the 110-month sentence
imposed on the § 922(g) violation. [Id.] This appeal followed.2
II. DISCUSSION
A. U.S.S.G. § 2K2.1(b)(6)(B) Enhancement
We review the district court’s application of the Sentencing Guidelines de
novo and its factual findings for clear error. United States v. Perez-Oliveros,
479
F.3d 779, 783 (11th Cir. 2007). When reviewing for clear error, we will not
disturb a district court’s findings unless we are left with a definite and firm
2
We granted Defendant’s motion to consolidate the new criminal case and the revocation
proceedings on appeal.
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conviction that a mistake has been committed. United States v. Dimitrovski,
782
F.3d 622, 629 (11th Cir. 2015). The Government has the burden of establishing
the facts necessary to support a sentencing enhancement by a preponderance of the
evidence. United States v. Aguilar-Ibarra,
740 F.3d 587, 592 (11th Cir. 2014).
Pursuant to U.S.S.G. § 2K2.1(b)(6)(B), a defendant receives a four-level
enhancement if he “used or possessed any firearm or ammunition in connection
with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). The application notes
state that the enhancement applies if the firearm or ammunition “facilitated, or had
the potential of facilitating, another felony offense.”
Id. § 2K2.1(b)(6)(B),
comment. (n.14(A)). We have explained that “in connection with” should be given
its ordinary and natural meaning and we have explicitly rejected a restricted
interpretation of the term. United States v. Smith,
480 F.3d 1277, 1280 (11th Cir.
2007) (analyzing § 2K2.1(b)(6)(B)’s prior version set forth in
§ 2K2.1(b)(5)(2005)).
Defendant argues that the district court erred by applying the
§ 2K2.1(b)(6)(B) enhancement because insufficient evidence supports the finding
that he possessed a gun or that a gun was used during the robberies. In other
words, he asserts that the district court erred by finding that he committed the
armed robberies. We disagree and conclude that the Government established by a
preponderance of the evidence that Defendant committed the robberies using a
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firearm and that the ammunition facilitated or had the potential to facilitate those
robberies.
The consistent description of the suspect by both robbery victims and the
fact that the robberies occurred in close proximity to each other suggested that one
perpetrator committed both robberies. Given the number of details linking
Defendant to the robberies, the district court could infer that Defendant committed
the robberies. United States v. Chavez,
584 F.3d 1354, 1367 (11th Cir. 2009)
(indicating that a district court may make reasonable inferences so long as they are
not so speculative as to be clearly erroneous). Indeed, Defendant’s physical
characteristics and attire matched both victims’ descriptions. Officers encountered
Defendant in the same general area as the robberies approximately one hour after
they occurred and he fled when an officer approached him. Notably, Defendant
was found in possession of ammunition that could have been used in a
semiautomatic handgun. Moreover, one of the victims positively identified
Defendant in a subsequent photo lineup. In short, the Government presented
enough consistent information to provide a reliable and sufficient basis for the
district court to find by a preponderance of the evidence that Defendant committed
the two robberies using a firearm and that the ammunition facilitated or potentially
facilitated those robberies. See United States v. Askew,
193 F.3d 1181, 1183 (11th
Cir. 1999) (“It is the district court’s duty to ensure that the Government carries [its]
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burden by establishing a sufficient and reliable basis for its request for an
enhancement.”).
We are not persuaded by Defendant’s arguments to the contrary. It is true
that one of the victims was unable to identify Defendant from the photo lineup as
the perpetrator. But that victim never ruled out Defendant or identified anyone
else. Thus, the first victim’s positive identification of Defendant has never been
contradicted. Defendant also makes much of the fact that the nine-millimeter
ammunition found in his possession would not have been compatible with a .40-
caliber handgun, which the second robbery victim attributed to the perpetrator.
However, we have previously indicated that a firearm need not be operable to
warrant the four-level enhancement for possessing a firearm or ammunition in
connection with another felony offense. See United States v. Rhind,
289 F.3d 690,
695 (11th Cir. 2002) (“We know of no requirement that the firearms be loaded or
operable to meet the ‘in connection with’ requirement.”). Moreover, as Detective
Gazzier explained at the sentencing hearing, the second victim could have
mistakenly identified the firearm as being 40-caliber, given that a nine-millimeter
and .40-caliber weapon are both semiautomatic and have the same frame and size.
Finally, while it is true that Defendant was not found in possession of a
firearm or a bicycle at the time of his arrest, the district court noted that he would
have had enough time after the second robbery to abandon the weapon and bicycle.
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In short, although Defendant identifies some conflicting evidence about his
involvement, that evidence did not negate the possibility that he carried out both
robberies and does not outweigh the district court’s finding that it was more
probable than not that he committed the robberies using a firearm and that the
ammunition facilitated or had the potential to facilitate the robberies. See
Dimitrovski, 782 F.3d at 628 (“Under the preponderance of the evidence standard,
the trier of fact must find the existence of a fact is more probable than not.”).
Accordingly, the district court did not err by applying the four-level enhancement
under § 2K2.1(b)(6)(B).
B. Substantive Reasonableness
We review the reasonableness of a district court’s sentence for an abuse of
discretion. United States v. Cubero,
754 F.3d 888, 892 (11th Cir. 2014); United
States v. Sweeting,
437 F.3d 1105, 1106–07 (11th Cir. 2006) (reviewing a sentence
imposed upon revocation of supervised release for reasonableness).
When reviewing the reasonableness of a sentence, we first look to whether
the district court committed any significant procedural error.
Cubero, 754 F.3d at
892. Once we have determined that the sentence is procedurally reasonable, then
we examine whether the sentence is substantively reasonable in light of the totality
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of the circumstances and the 18 U.S.C. § 3553(a) factors. 3
Id. The party
challenging the sentence bears the burden of showing that it is unreasonable.
United States v. Pugh,
515 F.3d 1179, 1189 (11th Cir. 2008).
Defendant has not met his burden of showing that his 134-month sentence is
substantively unreasonable. The district court’s imposition of the 110-month
sentence as to the § 922(g) conviction was reasonable in light of the totality of the
circumstances. As noted by the district court, the sentence was necessary to
address several § 3553(a) factors, including Defendant’s criminal history, “the
seriousness of the offense and the sentencing objectives of punishment, deterrence,
and incapacitation.” See 18 U.S.C. § 3553(a)(1), (2). Indeed, Defendant
committed two armed robberies and possessed ammunition only three months after
being released from a 70-month sentence imposed for being a felon in possession
of a firearm. Although Defendant argues that the district court assigned too much
weight to his criminal history, the weight assigned to each factor is entirely within
the discretion of the district court. See United States v. Clay,
483 F.3d 739, 743
3
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
education or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission;
(9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution
to victims. 18 U.S.C. § 3553(a).
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(11th Cir. 2007) (stating that the district court has “sound discretion” when
determining the weight to assign each § 3553(a) factor).
We turn next to the 24-month sentence imposed for the violation of
supervised release.4 Revocation was mandatory based on the district court’s
finding that Defendant committed the armed robberies and thus necessarily
possessed a firearm and ammunition. See 18 U.S.C. § 3583(e), (g)(2). Further, we
have held that a district court is not required to consider § 3553(a) factors under
such circumstances. United States v. Brown,
224 F.3d 1237, 1241–42 (11th Cir.
2000) (“[W]hen revocation of supervised release is mandatory under 18 U.S.C.
§ 3583(g), the statute does not require consideration of the § 3553(a) factors.”
(emphasis omitted)), abrogated in part on other grounds as recognized in United
States v. Vandergrift,
754 F.3d 1303, 1309 (11th Cir. 2014). Even so, Defendant’s
24-month sentence was supported by the § 3553(a) factors, which factors the
district court discussed. Moreover, the 24-month sentence was within the
applicable statutory maximum for the underlying Class C felony—possession of a
4
The Government asserts in passing that Defendant waived his right to appeal the 24-month
sentence imposed upon revocation of his supervised release. However, because the Government
does not argue that the district court questioned Defendant about the sentence appeal waiver
during the plea colloquy or that Defendant otherwise understood the full significance of the
waiver, we address the merits of Defendant’s argument. See United States v. Bushert,
997 F.2d
1343, 1350–51 (11th Cir. 1993) (explaining that in order for an appeal waiver to be enforceable,
the Government must show that (1) the district court specifically questioned the defendant about
the appeal waiver, or (2) it is “manifestly clear from the record” that the defendant understood
the full significance of the waiver).
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firearm by a convicted felon—that resulted in Defendant’s supervised release. See
18 U.S.C. § 3583(e)(3).
We also cannot say that the district court acted unreasonably by ordering
consecutive sentences. Indeed, the imposition of consecutive sentences took into
account the fact that Defendant’s conduct implicated two different statutory
prohibitions: a violation of the terms of his supervised release, as well as the
commission of a new criminal offense. Further, the imposition of consecutive
sentences was consistent with the relevant Guidelines’ policy statement. See
U.S.S.G. § 7B1.3(f) (“Any term of imprisonment imposed upon revocation of
probation or supervised release shall be ordered to be served consecutively to any
sentence of imprisonment that the defendant is serving, whether or not the sentence
of imprisonment being served resulted from the conduct that is the basis of the
revocation of probation or supervised release.”).
III. CONCLUSION
Based on the foregoing reasons, Defendant’s sentence is AFFIRMED.
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