United States v. Dupree Woodard

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10743 ELEVENTH CIRCUIT
Non-Argument Calendar SEPTEMBER 10, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:09-cr-00015-LGW-JEG-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
DUPREE WOODARD,
l lllllllllllll llllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(September 10, 2010)
Before TJOFLAT, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Dupree Woodard appeals his 112-month sentence, imposed after pleading
guilty to possession of a firearm as a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). On appeal, Woodard argues that the district court improperly applied
a four-level increase under U.S.S.G. § 2K2.1(b)(6) for his possession of a firearm
in connection with another felony offense because the state charge for aggravated
assault that triggered the enhancement was dismissed.
We review a district court’s application and interpretation of the guidelines
de novo, and its factual findings for clear error. United States v. Rhind, 289 F.3d
690, 693 (11th Cir. 2002). The district court’s determination that the defendant
used a firearm “in connection with” another felony offense is reviewed for clear
error. United States v. Whitfield, 50 F.3d 947, 949 & n.8 (11th Cir. 1995)
(involving the substantively identical U.S.S.G. § 2K2.1(b)(5) (1994)). “For a
factual finding to be clearly erroneous, this court, after reviewing all of the
evidence, must be left with a definite and firm conviction that a mistake has been
committed.” United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir.
2004) (internal quotations omitted).
Under the Sentencing Guidelines, a four-level increase is applied if a felon
possesses a firearm “in connection with another felony offense.” U.S.S.G.
§ 2K2.1(b)(6). “In connection with” is defined by the guidelines to mean the
firearm “facilitated, or had the potential of facilitating, another felony offense.”
U.S.S.G. § 2K2.1, comment. (n.14(A)). “Another felony offense” is “any federal,
2
state, or local offense . . . punishable by imprisonment for a term exceeding one
year, regardless of whether a criminal charge was brought, or a conviction
obtained.” Id., comment. (n.14(C)).
In Georgia, an assault occurs when a person either “(1) [a]ttempts to commit
a violent injury to the person of another; or (2) [c]ommits an act which places
another in reasonable apprehension of immediately receiving a violent injury.”
O.C.G.A. § 16-5-20(a) (2010). Aggravated assault occurs when a person assaults
“[w]ith a deadly weapon or with any object, device, or instrument which, when
used offensively against a person, is likely to or actually does result in serious
bodily injury.” O.C.G.A. § 16-5-21(a)(2) (2010). The minimum penalty for this
felony offense is one year. Id. § 16-5-21(b).
Upon review of the record and consideration of the parties’ briefs, we affirm
as the district court did not clearly err in finding that Woodard possessed a firearm
“in connection with” another felony offense. Because Woodard did not object to
the PSI’s narration of Woodard displaying a gun to Hill and yelling threatening
statements at another person, the district court did not clearly err in finding that
those facts constitute aggravated assault under Georgia law. Therefore, the district
court properly applied the § 2K2.1(b)(6) enhancement. Accordingly, we affirm the
sentence.
3
AFFIRMED.
4