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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10942
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRAE MARTINIZE CROOK,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 1:19-cr-00296-KOB-HNJ-1
____________________
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2 Opinion of the Court 22-10942
Before ROSENBAUM, JILL PRYOR, and HULL, Circuit Judges.
PER CURIAM:
Andrae Martinize Crook appeals his 100-month sentence for
possession of a firearm by a convicted felon. In January 2019, law
enforcement responded to a domestic disturbance between Crook
and his then-girlfriend, Twaneisha Morris. Victim Morris told law
enforcement that Crook hit her in the face with a firearm.
On appeal, Crook challenges the district court’s application
of a four-level increase under U.S.S.G. § 2K2.1(b)(6)(B) for
possession of a firearm in connection with another felony offense
(i.e., assault). Crook argues that the only evidence to support the
four-level increase was double hearsay because, at Crook’s
sentencing hearing, Corporal Adam Sorrell testified about what
Officer Martin told him that victim Morris said.
After careful review, we conclude that was not the only
evidence here. Also, the hearsay evidence was reliable. Thus, the
district court did not clearly err in applying the four-level increase
under U.S.S.G. § 2K2.1(b)(6)(B). Alternatively, the district court
stated it would impose the same sentence regardless of the
outcome of the guidelines issue, and we conclude any error in
increasing Crook’s offense level by four levels under U.S.S.G.
§ 2K2.1(b)(6)(B) was harmless. We affirm Crook’s sentence.
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22-10942 Opinion of the Court 3
I. FACTS
To set the stage, we begin with Corporal Sorrell’s testimony
at Crook’s sentencing hearing. We then explain the procedural
history of this case.
A. Corporal Sorrell’s Testimony
On January 13, 2019, Corporal Sorrell responded to a call
about a domestic dispute between Crook and Morris. While
Corporal Sorrell was traveling to the scene, dispatch informed him
that Crook had left the area and gave Corporal Sorrell a vehicle
description. Corporal Sorrell saw a vehicle he believed to be
Crook’s vehicle, so Corporal Sorrell initiated a traffic stop. Once
Corporal Sorrell pulled that vehicle over, he observed that Crook
was the lone occupant, and Corporal Sorrell recovered a firearm
from the vehicle.
Corporal Sorrell communicated with Officer Martin, who
was at the scene of the domestic disturbance. According to
Corporal Sorrell, Officer Martin told him Morris’s face was
“messed up.” Then, Officer Martin told Corporal Sorrell that
Morris told Officer Martin that (1) she and Crook had gotten into a
“physical altercation” and (2) Crook struck her in the face with a
firearm. In his report, Corporal Sorrell documented Officer
Martin’s statements about Morris’s statements.
The next morning, Corporal Sorrell went to see Morris, and
he observed that “[s]he had severe swelling on the left side of her
face, [and] her left eye was swollen shut and purple.” So Corporal
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4 Opinion of the Court 22-10942
Sorrell saw Morris’s injuries for himself. Furthermore, Morris said
to Corporal Sorrell, “[D]o you see what he did.” Corporal Sorrell
testified that, in his opinion, Morris’s injuries were consistent with
being hit in the face with a firearm. Thus, Morris told two officers
about the incident and her injuries corroborated her report.
B. Crook’s Indictment and Guilty Plea
In May 2019, Crook was indicted for being a convicted felon
in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1). In
July 2019, Crook pleaded guilty to that offense.
C. Crook’s Presentence Investigation Report (“PSR”) and
Objections
The probation officer prepared a PSR, which recommended
a base offense level of 24. The PSR also recommended that the
district court (1) increase the offense level by four levels under
U.S.S.G. § 2K2.1(b)(6)(B) for possession of a firearm in connection
with another felony offense 1 and (2) reduce the offense level by
1 The sentencing guidelines provide for a four-level increase to a defendant’s
base offense level for a firearm offense if the defendant “used or possessed any
firearm or ammunition in connection with another felony offense.” U.S.S.G.
§ 2K2.1(b)(6)(B). This increase applies if the firearm “facilitated, or had the
potential of facilitating, another felony offense.” Id. cmt. 14(A).
“Another felony offense” is defined for purposes of this guideline as “any
federal, state, or local offense, other than the explosive or firearms possession
or trafficking offense, punishable by imprisonment for a term exceeding one
year, regardless of whether a criminal charge was brought, or a conviction
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22-10942 Opinion of the Court 5
three levels under U.S.S.G. § 3E1.1(a) and (b) for acceptance of
responsibility and timely notification of Crook’s intention to plead
guilty. Thus, the adjusted offense level was 25.
Crook received a criminal history score of 11 points,
resulting in a criminal history category of V. Crook’s advisory
guidelines range was 100 to 125 months’ imprisonment. However,
Crook’s offense carried a statutory maximum term of 120 months’
imprisonment,
18 U.S.C. § 924(a)(2), so his guidelines range
became 100 to 120 months’ imprisonment.
Crook objected to the PSR’s recommendation that the
district court apply the four-level increase under U.S.S.G.
§ 2K2.1(b)(6)(B). Crook argued that he did not strike Morris in the
face with the firearm. Accordingly, Crook contended that the total
offense level should be 21 and the advisory guidelines range should
be 70 to 87 months’ imprisonment.
D. Crook’s Sentencing
At sentencing, Crook’s counsel reiterated his objection to
the four-level increase and the facts that triggered that increase.
Crook’s counsel denied the allegation that Crook used a gun to
strike Morris and claimed the gun was in his car, not the house
where the domestic dispute occurred. Crook’s counsel objected to
obtained.” Id. cmt. 14(C). Crook does not dispute that assault qualifies as
“another felony offense.”
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6 Opinion of the Court 22-10942
the fact that the allegation arose from a hearsay statement made by
victim Morris.
Next, the government called Corporal Sorrell to testify.
Before and throughout Corporal Sorrell’s testimony (outlined
above), Crook’s counsel objected to hearsay statements.
At one point, the district court asked why Officer Martin was
not present. The government responded that it did not think it was
necessary to have two officers present since hearsay was allowed
in sentencing proceedings.
After Corporal Sorrell testified, Crook’s counsel argued that
since the court admitted hearsay, it needed to evaluate the
reliability of the hearsay evidence. Crook’s counsel noted that
Corporal Sorrell never interacted with Officer Martin and the
multiple levels of hearsay mattered in the reliability determination.
The government argued that it met its burden because
Corporal Sorrell documented the hearsay statements in his report,
saw Morris’s injuries the morning after the domestic dispute, and
stated Morris’s injuries were consistent with being struck in the
face by a firearm.
The district court found Corporal Sorrell’s testimony—that
Officer Martin told him Morris said she was struck in the face with
a firearm—to be credible because it was corroborated by Sorrell’s
own observation the next morning. Specifically, the district court
said Corporal Sorrell’s observation the next morning “makes that
hearsay more reliable” given the evidence of bruising and swelling
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22-10942 Opinion of the Court 7
on Morris’s face. In so ruling, the district court implicitly found
Crook had a gun during the domestic dispute.
The district court thus overruled the objections to Corporal
Sorrell’s testimony based on reliability and then adopted the factual
statements and guidelines calculations in the PSR. Crook himself
did not testify at the hearing.
The district court sentenced Crook to 100 months’
imprisonment, followed by three years of supervised release. The
district court explicitly stated that it would have imposed the same
sentence regardless of how the guidelines issue was resolved.
Crook did not appeal. Crook filed a
28 U.S.C. § 2255 motion
to vacate his sentence, arguing his attorney was ineffective for
failing to file a notice of appeal. The district court granted Crook’s
motion to vacate, vacated his sentence, and set a new sentencing
hearing.
At the resentencing hearing, the district court restated the
advisory guidelines calculations and resentenced Crook to 100
months’ imprisonment, followed by three years of supervised
release. The district court adopted the same reasons it stated at the
original sentencing hearing. This appeal followed.
II. STANDARD OF REVIEW
We review for clear error a district court’s determination
that a defendant possessed a gun in connection with another felony
offense. United States v. Bishop,
940 F.3d 1242, 1250 (11th Cir.
2019). To be clearly erroneous, this Court must be left with the
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8 Opinion of the Court 22-10942
“definite and firm conviction” that the district court made a
mistake. United States v. Almedina,
686 F.3d 1312, 1315 (11th Cir.
2012).
III. DISCUSSION
On appeal, Crook argues that Corporal Sorrell’s testimony
that Officer Martin told him victim Morris said she was struck in
the face with a firearm was not sufficient to support the four-level
increase under U.S.S.G. § 2K2.1(b)(6)(B) because it is hearsay.
A sentencing court may enhance a sentence based on
hearsay if the evidence has “sufficient indicia of reliability, the court
makes explicit findings of fact as to credibility, and the defendant
has an opportunity to rebut the evidence.” United States v.
Ghertler,
605 F.3d 1256, 1269 (11th Cir. 2010) (quotation marks
omitted). These three elements were met.
First, Corporal Sorrell’s testimony that Officer Martin told
him Morris said she was struck in the face with a firearm has
sufficient indicia of reliability. Corporal Sorrell visited Morris the
morning after the domestic dispute and observed Morris’s injuries.
Corporal Sorrell then testified that those injuries appeared
consistent with being hit in the face with a firearm. Morris also told
Corporal Sorrell, “[D]o you see what he did.” Since Corporal
Sorrell’s observations corroborated Officer Martin’s statement that
Morris told him she was struck in the face with a firearm, the
district court found that the hearsay evidence was sufficiently
reliable.
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22-10942 Opinion of the Court 9
Second, the district court explicitly stated it found Corporal
Sorrell’s testimony that Officer Martin told him Morris said she was
struck in the face with a firearm to be credible because it was
corroborated by his own observations the next morning. Third,
Crook had the opportunity to rebut the evidence at his sentencing
hearing.
Alternatively, any error in increasing Crook’s offense level
by four levels under U.S.S.G. § 2K2.1(b)(6)(B) was harmless.
Under our precedent, a guidelines calculation error is
harmless if (1) the district court stated it would impose the same
sentence even if it decided the guidelines issue in the defendant’s
favor and (2) assuming an error occurred and the lower guidelines
range applied, the sentence resulting from consideration of the
18
U.S.C. § 3553(a) factors would still be reasonable. United States v.
Keene,
470 F.3d 1347, 1349–50 (11th Cir. 2006).
Here, the district court, in imposing the 100-month
sentence, stated on the record that it would have imposed the same
sentence regardless of the outcome of the guidelines issue.
Further, as explained below, the district court’s 100-month
sentence is substantively reasonable in light of the circumstances
and the § 3553(a) factors.
“We review the substantive reasonableness of a sentence for
abuse of discretion, considering the totality of the circumstances.”
United States v. Oudomsine, __ F.4th ___, No. 22-10924,
2023 WL
220349, at *2 (11th Cir. Jan. 18, 2023). “We will vacate a
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10 Opinion of the Court 22-10942
defendant’s sentence as substantively unreasonable only if we are
‘left with the definite and firm conviction that the district court
committed a clear error of judgment in weighing the § 3553(a)
factors by arriving at a sentence that lies outside the range of
reasonable sentences dictated by the facts of the case.’” Id. (quoting
United States v. Irey,
612 F.3d 1160, 1190 (11th Cir. 2010) (en
banc)).
Without the four-level increase under U.S.S.G.
§ 2K2.1(b)(6)(B), Crook’s total offense level would have been 21,
and his advisory guidelines range would have been 70 to 87
months. U.S.S.G. Ch. 5, Pt. A (table). The district court’s sentence
of 100 months’ imprisonment would have been a 13-month
upward variance.
We conclude the district court properly supported such a
variance through consideration of the § 3553(a) factors. 2 The
district court noted that the offense involved a domestic violence
dispute where a gun was present and stated that the presence of the
gun “exacerbate[d] the danger.” In other words, even if Crook did
2 Section 3553(a) directs the court to consider (1) thenature and circumstances
of the offense and the history and characteristics of the defendant; (2) the need
for the sentence to reflect the seriousness of the offense, promote respect for
the law, provide just punishment, deter criminal conduct, protect the public
from future crimes of the defendant, and provide the defendant with needed
educational or vocational training or medical care; (3) the kinds of sentences
available; (4) the applicable guidelines range; (5) the pertinent policy
statements of the Sentencing Commission; (6) the need to avoid unwarranted
sentence disparities; and (7) the need to provide restitution to victims.
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22-10942 Opinion of the Court 11
not strike Morris with the gun, the district court nonetheless found
the presence of the gun during a domestic dispute exacerbated the
danger. The district court also considered (1) Crook’s “extensive
criminal history,” including prior convictions for domestic violence
and assault, (2) “the seriousness of th[e] offense,” and (3) “the need
to promote respect for the law and afford deterrence to criminal
conduct.”
IV. CONCLUSION
For these reasons, we conclude the district court did not
clearly err in applying the increase under U.S.S.G. § 2K2.1(b)(6)(B).
Alternatively, any error in increasing Crook’s offense level by four
levels under U.S.S.G. § 2K2.1(b)(6)(B) was harmless. We affirm
Crook’s 100-month sentence.
AFFIRMED.
