United States v. Woody Senat

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 24, 2008
No. 07-12623 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-60353-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WOODY SENAT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 24, 2008)
Before ANDERSON, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Woody Senat appeals his 115-month sentence for possession of a firearm by
a felon, in violation of 18 U.S.C. § 922(g)(1). When Senat was arrested on this
charge, a search of his car revealed a 9 mm pistol loaded with 17 rounds of
ammunition in a hidden, cut-out compartment in the back seat. Senat was
acquitted of a second charge which arose out of a traffic stop in which two
shotguns were found in the trunk of Senat’s car. At sentencing, the district court
applied a two-level increase for an offense involving three to seven firearms,
despite Senat’s acquittal on the charge pertaining to the two shotguns. The court
also applied a two-level increase for an offense involving a stolen firearm.
On appeal, Senat first argues that the district court’s application of the
enhancement for the number of firearms was erroneous because the district court
did not explicitly find, and the government did not prove, by a preponderance of
the evidence, that he possessed two of the three firearms, and, even assuming that
the government proved possession of the shotguns, that possession was acquitted
conduct that was not relevant to the offense of conviction. Second, Senat argues
that the district court erroneously applied an increase based on the unsupported
finding that the firearm was stolen. He notes that, while the government stated, at
a bench conference during the trial, that both the shotguns and the pistol were
stolen, it never presented any evidence to support the claim, even after he objected
at sentencing on the basis of lack of proof at trial. The government concedes error
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on this issue.
I.
We review a district court’s factual findings for clear error and its
application of the guidelines to those facts de novo. United States v. Kinard,
472 F.3d 1294, 1297 n.3 (11th Cir. 2006). Specific offense characteristic
§ 2K2.1(b)(1)(A) requires a two-level increase for an offense involving between
three and seven firearms. U.S.S.G. § 2K2.1(b)(1)(A). Once a defendant
challenges a presentence investigation report (“PSI”) statement, the government
bears the burden of proving the statement by a preponderance of the evidence, and,
if used in guideline calculations, the district court must make an explicit factual
finding as to the allegation. United States v. Lawrence, 47 F.3d 1559, 1566-67
(11th Cir. 1995).
In considering relevant conduct, the court must consider, inter alia, “all acts
and omissions committed . . . or willfully caused by the defendant . . . that occurred
during the commission 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)(A). The commentary to § 1B1.3 states that offenses may:
qualify as part of the same course of conduct if they are sufficiently
connected or related to each other as to warrant the conclusion that
they are part of a single episode, spree, or ongoing series of offenses.
Factors that are appropriate to the determinations of whether offenses
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are sufficiently connected or related to each other to be considered as
part of the same course of conduct include the degree of similarity of
the offenses, the regularity (repetitions) of the offenses, and the time
interval between the offenses. When one of the above factors is
absent, a stronger presence of at least one of the other factors is
required.
Id. cmt. (n.9(B)). We broadly interpret the provisions of the relevant conduct
guideline. United States v. Behr, 93 F.3d 764, 765 (11th Cir. 1996). In
determining relevant conduct, the district court may consider both uncharged and
acquitted conduct. United States v. Hamaker, 455 F.3d 1316, 1336 (11th Cir.
2006). Under our precedent, “nothing in Booker1 prohibits the courts from
considering relevant conduct when the Sentencing Guidelines are applied as
advisory.” United States v. Faust, 456 F.3d 1342, 1348 (11th Cir. 2006).
Upon review of the record, and upon consideration of the briefs, we discern
no reversible error as to this issue. Despite the fact that Senat was acquitted of the
count charging him with possession of two shotguns, because he was convicted of
possessing a pistol, and a preponderance of the evidence supported the finding that
he possessed the shotguns, we affirm the district court’s application of a two-level
increase for possessing three to seven firearms.
II.
We review a district court’s application of the guidelines to the facts de
1
United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
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novo. Kinard, 472 F.3d at 1297 n.3. “[O]nce the court of appeals has decided that
the district court misapplied the Guidelines, a remand is appropriate unless the
reviewing court concludes, on the record as a whole, that the error was harmless,
i.e., that the error did not affect the district court’s selection of the sentence
imposed.” Williams v. United States, 503 U.S. 193, 203-04, 112 S.Ct. 1112, 1120-
21, 117 L.Ed.2d 341 (1192).
As the government concedes, the district court improperly applied a two-
level enhancement based on the assumption, without any evidence presented by the
government, that the pistol was stolen, we vacate Senat’s sentence and remand for
resentencing without this enhancement.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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