USCA11 Case: 22-12985 Document: 35-1 Date Filed: 10/16/2023 Page: 1 of 16
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12985
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICK ABOITE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cr-20385-JLK-1
____________________
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2 Opinion of the Court 22-12985
Before JILL PRYOR, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Patrick Aboite appeals his 87-month sentence for one count
of possession of a firearm and ammunition by a convicted felon.
On appeal, Aboite first argues that the district court clearly erred in
imposing a four-level enhancement under United States Sentenc-
ing Guidelines Manual § 2K2.1(b)(6)(B) for using or possessing a
firearm in connection with another felony offense. Aboite argues
that this enhancement is clear error because the other offense in-
volved a different firearm than the one that he was convicted of
possessing. Second, he argues his 87-month sentence is substan-
tively unreasonable because the district court relied too heavily on
conduct outside the count to which he pleaded guilty. On both
fronts, Aboite’s arguments fail. Accordingly, we affirm the district
court’s sentence.
I.
After a shooting in Miami on March 29, 2021, law enforce-
ment agents watched surveillance footage and saw the shooter’s
vehicle. Aboite was pulled over the next day while driving a match-
ing vehicle nearby. During a pat-down search, agents discovered a
loaded .380 caliber pistol in Aboite’s waistband. Because Aboite
was a convicted felon, the agents arrested him for being a felon in
possession of a firearm and ammunition. They also obtained a
search warrant for Aboite’s vehicle. The search of Aboite’s vehicle
uncovered a loaded .40 caliber pistol that had been reported stolen
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22-12985 Opinion of the Court 3
and small amounts of cocaine and Eutylone. That .40 caliber pistol
was later determined to have been used to shoot the individual
(G.S.) on March 29.
Aboite was indicted and charged with two counts of pos-
sessing a firearm and ammunition as a convicted felon in violation
of
18 U.S.C. § 922(g)(1). Count 1 was related to the .40 caliber pis-
tol, which Aboite possessed between March 29, 2021, and April 1,
2021. Count 2 was related to the .380 caliber pistol—the pistol for
which he was initially arrested—which Aboite possessed on March
30, 2021, when he was arrested and which he told law enforcement
that he had purchased three to four months before he was stopped
by law enforcement.
The United States executed an oral plea agreement with
Aboite. Based on that plea agreement, Aboite pleaded guilty to
Count 2 (.380 caliber pistol possession), and the United States dis-
missed Count 1 (.40 caliber pistol possession). Aboite and the gov-
ernment also agreed that Aboite’s possession of the stolen .40 cali-
ber pistol made Aboite subject to U.S.S.G. § 2K2.1(b)(4)(A)’s stolen
firearm sentencing enhancement and that any sentence imposed
would run concurrently with any state sentence for offenses related
to possessing these firearms.
The district court found that the victim of the shooting had
identified Aboite as the shooter and found that both firearms were
in Aboite’s possession the day after the shooting. The district court
also found that possessing and using the .40 caliber firearm that
Aboite used to shoot G.S. was part of the same purpose and plan as
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4 Opinion of the Court 22-12985
that involved with the count to which he pleaded guilty. Moreover,
the district court found that the .40 caliber pistol was used in con-
nection with another felony offense. Thus, the district court im-
posed a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for
using or possessing a firearm in connection with another felony of-
fense. The district court calculated Aboite’s advisory Guidelines
range to be 70 to 87 months of imprisonment. And after consider-
ing the factors under
18 U.S.C. § 3553(a)—with an emphasis on the
need for deterrence and protection of the public—the district court
ultimately imposed an 87-month sentence. Aboite appeals.
II.
We review a district court’s legal interpretations and appli-
cation of the Guidelines to the facts de novo and review its factual
findings for clear error. See United States v. Zaldivar,
615 F.3d 1346,
1350 (11th Cir. 2010) (citing United States v. De La Cruz Suarez,
601
F.3d 1202, 1219 (11th Cir. 2010); United States v. Caraballo,
595 F.3d
1214, 1230 (11th Cir. 2010)). “A district court’s determination that
a defendant possessed a gun ‘in connection with’ another felony
offense is a finding of fact that we review for clear error.” United
States v. Bishop,
940 F.3d 1242, 1250 (11th Cir. 2019) (citing United
States v. Whitfield,
50 F.3d 947, 949 & n.8 (11th Cir. 1995)). Moreo-
ver, “[w]e review only for clear error the application of the relevant
conduct [G]uideline in § 1B1.3 to the facts of the case.” United States
v. Valladares,
544 F.3d 1257, 1267 (11th Cir. 2008) (citing United
States v. White,
335 F.3d 1314, 1319 (11th Cir. 2003)).
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22-12985 Opinion of the Court 5
For a factual finding to be clearly erroneous, we must be
“left with a ‘definite and firm conviction’” that the district court
made a mistake. United States v. Smith,
821 F.3d 1293, 1302 (11th
Cir. 2016) (quoting Anderson v. City of Bessemer City,
470 U.S. 564,
573 (1985)). A factual finding cannot be clearly erroneous just be-
cause the factfinder chose between two permissible views of the
evidence. See
id. (quoting Anderson, 470 U.S. at 574). Additionally,
when reviewing the substantive reasonableness of a sentence, we
apply a deferential abuse-of-discretion standard. See Gall v. United
States,
552 U.S. 38, 41, 51 (2007). Therefore, we review one aspect
of the question in Part III.A de novo and the other aspects for clear
error and review the question in Part III.B for an abuse of discre-
tion.
III.
A.
The Guidelines provide for a four-level enhancement “[i]f
the defendant . . . used or possessed any firearm or ammunition in
connection with another felony offense . . . .” U.S.S.G.
§ 2K2.1(b)(6)(B). First, we will examine the “any firearm or ammu-
nition” provision to see if the .40 caliber firearm falls under that
provision. Second, we will examine the “another felony offense”
provision. In this portion of the analysis, we must compare other
felonies—even those Aboite was not convicted of—to the felony
for which Aboite was convicted (felon in possession of a firearm
and ammunition related to the .380 caliber pistol). Third, we will
examine the “in connection with” provision. In this portion of the
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6 Opinion of the Court 22-12985
analysis, we must analyze whether the district court properly con-
nected the .40 caliber firearm to those other felonies. Based on the
record and our analysis, we conclude that the district court
properly applied the four-level enhancement.
1.
We have held that the term “‘any firearm’ truly means any
firearm.” United States v. Williams,
431 F.3d 767, 770 (11th Cir.
2005); see also
id. at 770–71 (citing United States v. Sutton,
302 F.3d
1226, 1227 (11th Cir. 2002)); Sutton,
302 F.3d at 1228 (finding that a
different “Guideline seems to use ‘the firearm’ to refer to the fire-
arm that the defendant is convicted of possessing” (quoting
U.S.S.G. § 4B1.4(b)(3)(A))). This case law resolves this part of the
dispute. The use of “any” in § 2K2.1(b)(6)(B) and our decision in
Williams that “any firearm’ truly means any firearm” establish that
the .40 caliber pistol could properly be considered by the district
court in Aboite’s Guidelines calculation if it was used or possessed
in connection with another felony offense within the meaning of
the Guidelines and our case law. Williams, 431 F.3d at 770; see also
id. at 772; U.S.S.G. § 2K2.1(b)(6)(B).
2.
Although any firearm can be used under § 2K2.1(b)(6)(B),
the firearm must be used or possessed in connection with “another
felony offense.” We have stated that, unless the Guidelines lan-
guage specifies otherwise, the default rule is that “other offenses
must be within the relevant conduct of the charged offense.”
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22-12985 Opinion of the Court
7
Williams, 431 F.3d at 772. After we stated this in Williams, the Sen-
tencing Commission added Application Notes 14(A) and 14(E) to
the United States Sentencing Guidelines Manual’s commentary—
which the parties discuss at length because it is ostensibly relevant.
The commentary explains that the enhancement at issue here ap-
plies if “the firearm or ammunition facilitated, or had the potential
of facilitating, another felony offense.” U.S.S.G. § 2K2.1,
cmt. n.14(A). Additionally, the commentary states that when the
firearm is not cited in the offense of conviction, “[i]n determining
whether subsection (b)(6)(B) applies, the threshold question for the
court is whether the two unlawful [use or] possession offenses . . .
were ‘part of the same course of conduct or common scheme or
plan.’” Id. § 2K2.1, cmt. n.14(E)(ii) (quoting id. § 1B1.3(a)(2)). How-
ever, we need not consider and do not defer to the Guidelines’
commentary if the Guidelines themselves are unambiguous. See
United States v. Dupree,
57 F.4th 1269, 1279 (11th Cir. 2023) (en
banc).
Because U.S.S.G. § 2K2.1(b)(6)(B) itself did not change and is
unambiguous, nothing undermines Williams’s continued force nor
requires our consideration of the more recently added text in the
commentary. The fact that it discusses a relevant topic does not
change this result. Therefore, we continue to apply Williams and
the Guidelines themselves to this question.
Determining whether the other offense was within the rele-
vant conduct involves examining the Guidelines’ application. We
review the functioning of the Guidelines de novo. See Zaldivar, 615
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8 Opinion of the Court 22-12985
F.3d at 1350 (citing De La Cruz Suarez,
601 F.3d at 1219; Caraballo,
595 F.3d at 1230). Given that § 2K2.1(b)(6)(B) does not specify oth-
erwise, the other offense must be within the relevant conduct of
the charged offense, and U.S.S.G. § 1B1.3 applies to determine
whether it is relevant conduct. See Williams, 431 F.3d at 772. Alt-
hough Williams was about § 2K2.1(c), this result is buoyed by the
fact that the four-level enhancement at issue here is categorized as
a “[s]pecific [o]ffense [c]haracteristic,” U.S.S.G. § 2K2.1(b), and the
fact that the relevant conduct Guideline (§ 1B1.3) explicitly states
that it applies to “specific offense characteristics,” id. § 1B1.3(a).
Therefore, just as we applied § 1B1.3 to determine relevant con-
duct with respect to § 2K2.1(c) in Williams, we apply that same pro-
vision of the Guidelines to determining relevant conduct under
§ 2K2.1(b)(6)(B). See Williams, 431 F.3d at 772; see also U.S.S.G.
§ 1B1.3(a).
The district court found that the use and possession of the
.40 caliber pistol was part of the same purpose and plan as the
charged felon-in-possession count related to the .380 caliber pistol.
Upon clear error review of the application of the relevant conduct
guideline to the facts, we agree. See Valladares,
544 F.3d at 1267 (cit-
ing White,
335 F.3d at 1319). There are two potential felonies pred-
icated on Aboite’s use and possession of the .40 caliber pistol: an-
other unlawful possession and attempted murder under Florida
law for the shooting of G.S. Both constitute relevant conduct with
respect to the unlawful possession conviction. As we illustrate be-
low, under either path, the enhancement applies.
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22-12985 Opinion of the Court 9
First, the two unlawful possession offenses were part of the
same course of conduct. We agree with our sister circuits that
“[w]hen a person prohibited from possessing firearms under fed-
eral law possesses other firearms in addition to the ones for which
he was charged, these other uncharged firearms can be ‘relevant
conduct’ under the Sentencing Guidelines.” United States v. Parlor,
2 F.4th 807, 812 (9th Cir. 2021) (citing United States v. Nichols,
464
F.3d 1117, 1123–24 (9th Cir. 2006)); see also United States v. Brum-
mett,
355 F.3d 343, 345 (5th Cir. 2003); United States v. Santoro,
159
F.3d 318, 321 (7th Cir. 1998); United States v. Windle,
74 F.3d 997,
1000–01 (10th Cir. 1996); United States v. Powell,
50 F.3d 94, 104 (1st
Cir. 1995) (“[T]he contemporaneous, or nearly contemporaneous,
possession of uncharged firearms is . . . relevant conduct in the con-
text of a felon-in-possession prosecution.” (citing United States v.
Sanders,
982 F.2d 4, 9–10 (1st Cir. 1992)). Section 1B1.3(a)(2) applies
to this dual felon-in-possession path because § 2K2.1 is listed within
§ 3D1.2(d)—which 1B1.3(a)(2) cross-references to establish the
types of crimes to which § 1B1.3(a)(2) applies. Therefore, relevant
conduct in the dual-possession path is that conduct which is “part
of the same course of conduct or common scheme or plan as the
offense of conviction.” U.S.S.G. § 1B1.3(a)(2).
And here, the possession of the .40 caliber pistol is relevant
conduct. Under these facts, the temporal and spatial proximities of
the two illegal firearms possessions are close enough to make pos-
session of the .40 caliber pistol within the relevant conduct of the
illegal possession of the .380 caliber pistol that Aboite was con-
victed of possessing. They were possessed at the same time—at the
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10 Opinion of the Court 22-12985
time of arrest. And they were possessed in effectively the same
place—in Aboite’s waistband when he was in the car (.380 caliber
pistol) versus in the car (.40 caliber pistol). These felonies are linked
closely enough for possession of the .40 caliber pistol to be relevant
conduct for purposes of the § 2K2.1(b)(6)(B) sentencing enhance-
ment of Aboite’s conviction for possessing the .380 caliber pistol.
Second, the .40 caliber firearm was used or possessed in con-
nection with the felony shooting—attempted murder under Flor-
ida law—which is relevant conduct with respect to the felon-in-
possession conviction related to the .380 caliber pistol. For the at-
tempted murder path, § 1B1.3(a)(2) does not apply. See U.S.S.G.
§ 1B1.3(a)(2); Williams, 431 F.3d at 772–73. Instead, the Guidelines
require establishing that the shooting “occurred during the com-
mission of the offense of conviction, in preparation for that offense,
or in the course of attempting to avoid detection or responsibility
for that offense.” U.S.S.G. § 1B1.3(a)(1).
Here, under the Guidelines, the use and possession of the .40
caliber pistol to commit attempted murder is relevant conduct
with respect to the conviction for being a felon in possession of the
.380 caliber pistol because it “occurred during the commission of
the offense of conviction.” Id. That is, it occurred during the felon-
in-possession act of having the .380 caliber pistol. We understand
the district court to have inferred that Aboite had the .380 caliber
pistol with him in the car at the time he shot G.S. with the .40 cali-
ber pistol. Aboite has not established that this inference is clear er-
ror, and our review of the record counsels against any such
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22-12985 Opinion of the Court 11
conclusion. Aboite had owned the .380 caliber pistol for three to
four months before he was stopped by law enforcement, and the
gun was with him the day after the shooting in the same car. Even
if we would not make the same inference, we cannot say that the
district court clearly erred in doing so. See Smith,
821 F.3d at 1302
(quoting Anderson, 470 U.S. at 574).
As a result, his felon-in-possession offense—the felony of-
fense of conviction—was ongoing at the time that he used the .40
caliber pistol to shoot G.S. Consequently, under the Guidelines, the
attempted murder of G.S. is relevant conduct with respect to the
felon-in-possession conviction for purposes of the § 2K2.1(b)(6)(B)
sentencing enhancement.
In short, there are two different felonies related to the .40
caliber pistol that are both relevant conduct for purposes of apply-
ing § 2K2.1(b)(6)(B) to Aboite’s felon-in-possession conviction.
Thus, the district court did not clearly err in applying this part of
the Guidelines.
3.
Finally, we address the district court’s “in connection with”
determination. Both the firearm and the other offense were
properly used under the Guidelines, but we must still determine
whether the district court clearly erred in determining that Aboite’s
firearm was “in connection with” that other felony offense. See
Bishop, 940 F.3d at 1250 (citing Whitfield,
50 F.3d at 949 & n.8). A
firearm is in connection with the other felony offense if it facilitates
or could facilitate that other felony offense. The district court
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12 Opinion of the Court 22-12985
found that the victim of the shooting had identified Aboite as the
shooter and found that both firearms were in Aboite’s possession
the day after the shooting. Consequently, the district court found
that the .40 caliber pistol was used in connection with another fel-
ony offense. Here, it is the case that the .40 caliber pistol was used
in connection with two other felony offenses: possession of that
firearm and the offense of shooting the victim.
The district court’s reasoned analysis of the application of
this enhancement is not entirely clear about for which of these two
felonies the enhancement was applied. Indeed, on appeal, Aboite
focuses on the shooting felony, while the government focuses on
the dual-possession theory. But we need not decide the exact felony
on which the district court based its application of the enhance-
ment because we would affirm based on either. See United States v.
Campbell,
26 F.4th 860, 879 (11th Cir. 2022) (en banc) (“[W]e have
‘discretion to affirm on any ground supported by the law and the
record that will not expand the relief granted below.’” (quoting Up-
per Skagit Indian Tribe v. Lundgren,
138 S. Ct. 1649, 1654 (2018)) (cit-
ing SEC v. Chenery Corp.,
318 U.S. 80, 88 (1943))). Moreover, it is
entirely possible that the district court referred to both, given that
there were in fact two different felonies in this case. We need only
decide whether the district court properly found that the .40 caliber
pistol was used in connection with another felony. It did. On this
record, Aboite has not established that the district court clearly
erred in this determination.
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22-12985 Opinion of the Court 13
***
The district court deliberated the applicability of the en-
hancement, properly applied it, and chose a permissible view of the
evidence. See Smith,
821 F.3d at 1302 (quoting Anderson, 470 U.S. at
574). Therefore, the district court did not err in imposing a four-
level enhancement under U.S.S.G. § 2K2.1(b)(6)(B).
B.
The party challenging a sentence bears the burden of prov-
ing that it is unreasonable based on the record and the
18 U.S.C.
§ 3553(a) factors. See United States v. Tome,
611 F.3d 1371, 1378 (11th
Cir. 2010) (citing United States v. Thomas,
446 F.3d 1348, 1351 (11th
Cir. 2006)). The § 3553(a) factors include (1) “the nature and cir-
cumstances of the offense and the history and characteristics of the
defendant”; (2) “the need for the sentence imposed” (A) “to reflect
the seriousness of the offense, to promote respect for the law, and
to provide just punishment for the offense”; (B) “to afford adequate
deterrence to criminal conduct”; (C) “to protect the public from
further crimes of the defendant”; and (D) “to provide the defendant
with needed educational or vocational training, medical care, or
other correctional treatment in the most effective manner”;
(3) “the kinds of sentences available”; (4) the Sentencing Guidelines
range; (5) the pertinent policy statements of the Sentencing Com-
mission; (6) “the need to avoid unwanted sentencing disparities
among defendants with similar records who have been found
guilty of similar conduct”; and (7) “the need to provide restitution
to any victims of the offense.”
18 U.S.C. § 3553(a). A district court
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14 Opinion of the Court 22-12985
must consider all § 3553(a) factors but need not give all factors
equal weight. See United States v. Rosales-Bruno,
789 F.3d 1249, 1254
(11th Cir. 2015) (citing United States v. Shaw,
560 F.3d 1230, 1237
(11th Cir. 2009)).
“A district court abuses its discretion when it (1) fails to af-
ford consideration to relevant factors that were due significant
weight, (2) gives significant weight to an improper or irrelevant fac-
tor, or (3) commits a clear error of judgment in considering the
proper factors.” United States v. Irey,
612 F.3d 1160, 1189 (11th Cir.
2010) (en banc) (quoting United States v. Campa,
459 F.3d 1121, 1174
(11th Cir. 2006) (en banc)). The district court may attach greater
weight to one § 3553(a) factor than others. See Rosales-Bruno, 789
F.3d at 1254 (quoting Gall, 552 U.S. at 57). Moreover, “[t]he deci-
sion about how much weight to assign a particular sentencing fac-
tor is ‘committed to the sound discretion of the district court.’” See
Rosales-Bruno, 789 F.3d at 1254 (quoting United States v. Williams,
526 F.3d 1312, 1322 (11th Cir. 2008)).
But it is still possible for the district court to balance the fac-
tors incorrectly: “a district court commits a clear error of judgment
when it considers the proper factors but balances them unreasona-
bly.” Irey, 612 F.3d at 1189 (citing Ameritas Variable Life Ins. Co. v.
Roach,
411 F.3d 1328, 1330 (11th Cir. 2005)). Thus, provided the
proper factors are considered, we consider a sentence substantively
unreasonable only if “we ‘are left with the definite and firm convic-
tion that the district court committed a clear error of judgment in
weighing the § 3553(a) factors by arriving at a sentence that lies
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22-12985 Opinion of the Court 15
outside the range of reasonable sentences dictated by the facts of
the case.” See id. at 1190 (quoting United States v. Pugh,
515 F.3d
1179, 1191 (11th Cir. 2008)) (citing Shaw,
560 F.3d at 1238; United
States v. McBride,
511 F.3d 1293, 1297–98 (11th Cir. 2007); United
States v. Clay,
483 F.3d 739, 743 (11th Cir. 2007)).
“We are not often ‘left with [that] definite and firm convic-
tion’ because, as we have explained, our examination of the sen-
tence is made ‘through the prism of abuse of discretion.’”
Id. (alter-
ation in original) (quoting Pugh,
515 F.3d at 1191). Additionally,
“although we do not automatically presume [that] a sentence
within the [G]uidelines range is reasonable, we ‘ordinarily . . . ex-
pect [it] . . . to be reasonable.’” See United States v. Hunt,
526 F.3d
739, 746 (11th Cir. 2008) (third alteration in original) (quoting
United States v. Talley,
431 F.3d 784, 788 (11th Cir. 2005)).
Here, Aboite fails to meet his burden to establish that his 87-
month sentence was substantively unreasonable. The district court
considered the § 3553(a) factors as required. See Rosales-Bruno, 789
F.3d at 1254. It was within its discretion to weigh the factors of de-
terrence and protection of the public more seriously than other fac-
tors. See id. It was also permitted to consider the seriousness of the
offense conduct, including the conduct beyond the count to which
Aboite pleaded guilty. See id. Furthermore, Aboite’s sentence fell
within the Guidelines range—an indicator of reasonableness. See
Hunt,
526 F.3d at 746. Based on these facts, the sentence of 87-
months’ imprisonment is not unreasonable. In conclusion, because
the district court did not abuse its discretion in weighing the
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16 Opinion of the Court 22-12985
§ 3553(a) factors and considering the facts surrounding this offense,
Aboite’s total sentence was not substantively unreasonable.
IV.
For the reasons discussed above, we AFFIRM the district
court’s imposition of Aboite’s 87-month sentence.
