United States v. Chetanand Kumar Sewraz ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 26, 2007
No. 06-15379 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-14005-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHETANAND KUMAR SEWRAZ,
a.k.a. Ashley Sewraz,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 26, 2007)
Before TJOFLAT, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Chetanand Sewraz appeals his concurrent 115-month sentences imposed for
possession of a destructive device by an alien, in violation of 18 U.S.C.
§ 922(g)(5), and possession of an unregistered destructive device, in violation of
26 U.S.C. § 5861(d). On appeal, Sewraz argues that the district court improperly
calculated the guideline range when it granted a two-level upward departure based
on the risk of death or serious bodily injury created by the device pursuant to
U.S.S.G. § 2K2.1, comment. (n.8).
Based on this record, we conclude that the district court did not err in relying
on the risk of injury created by the location of the destructive device to grant a
departure because it was an encouraged factor not already accounted for in the
applicable guideline. Furthermore, the facts established at the sentencing hearing
were sufficient to support the district court’s finding that Sewraz’s conduct posed a
substantial risk of serious bodily injury. Because Sewraz did not object to any of
the factual finding in the PSI, the district court did not commit error, plain or
otherwise, in relying on those facts. See United States v. Smith, 480 F.3d 1277,
1281 (11th Cir.), cert. denied, (No. 06-11901) (Oct. 1, 2007) (undisputed factual
matters in the PSI are deemed admitted and may be relied upon by the district court
in determining the defendant's sentence). The undisputed facts reveal that Sewraz
placed the device in a public parking lot occupied by several cars, and he left the
device at a time when patrons of a nearby hotel and restaurant would be using the
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lot. Sewraz had constructed the device so it would ultimately explode, creating a
fire and releasing shrapnel. The district court, having concluded that Sewraz’s
actions created an increased risk injury based on the location of the device, did not
abuse its discretion in finding that such a risk warranted an upward departure.
Moreover, the extent of departure is not unreasonable given the nature and
seriousness of the offense.
AFFIRMED.
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