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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-11248
Non-Argument Calendar
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D.C. Docket No. 9:11-cr-80078-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KERBY AURELHOMME,
WINSKY MONDESTIN,
Defendants-Appellants.
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Appeals from the United States District Court
for the Southern District of Florida
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(January 16, 2015)
Before MARTIN, JORDAN and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Kerby Aurelhomme and Winsky Mondestin challenge their 240-month
sentences of imprisonment, imposed after their convictions for Hobbs Act robbery,
conspiracy to commit Hobbs Act robbery, and making false statements of material
fact to investigators. Aurelhomme argues that the district court erred under
Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151 (2013), by applying a
firearms enhancement based on facts not found by a jury. He also argues that the
district court clearly erred by finding that the discharge of a firearm was reasonably
foreseeable, and that a victim was abducted—two findings that led to further
enhancements of his sentence. Mondestin argues that the district court clearly
erred by finding that the discharge of a firearm and the victim’s injuries were
reasonably foreseeable—two findings that led to enhancements of his sentence.
After careful review of the record, we affirm.
I.
We review de novo claims of Alleyne error. United States v. King, 751 F.3d
1268, 1279 (11th Cir.) (per curiam), cert. denied, 574 U.S. ___, 135 S. Ct. 389
(2014). In Alleyne, the Supreme Court concluded that a fact is an element of the
offense that must be found by a jury if it increases the range of sentences
authorized by statute. 570 U.S. at ___, 133 S. Ct. at 2162. Following Alleyne, this
Court has held that a district court may make guidelines calculations based on
judicial factfindings so long as those findings do not increase the statutory
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minimum or maximum authorized by facts determined in a guilty plea or jury
verdict. United States v. Charles, 757 F.3d 1222, 1225 (11th Cir. 2014).
The district court’s finding that a firearm was discharged during the robbery
did not increase the statutory minimum or maximum for any of Aurelhomme’s
convictions. Enhancing his sentence based on this judicial factfinding was
therefore not Alleyne error.
II.
Defendants challenge several other enhancements based on judicial
factfindings. We review the district court’s factfindings for clear error, its
application of the guidelines to the facts with due deference, United States v.
Garcia-Sandobal, 703 F.3d 1278, 1282 (11th Cir. 2013), and its determinations of
the applicable guidelines range de novo, United States v. McCrimmon, 362 F.3d
725, 728 (11th Cir. 2004) (per curiam). When a defendant challenges the factual
basis of his sentence, the government must prove disputed facts by a
preponderance of the evidence. United States v. Aguilar-Ibarra, 740 F.3d 587, 592
(11th Cir. 2014) (per curiam). The district court must make independent
factfindings supporting its guidelines calculations. United States v. Hamaker, 455
F.3d 1316, 1338 (11th Cir. 2006). Its findings may be based on evidence heard at
trial, undisputed statements in the PSR, or evidence presented at sentencing. Id.
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III.
A.
First, both defendants challenge the district court’s application of a seven-
level enhancement because a firearm was discharged during the robbery. See
United States Sentencing Guideline § 2B3.1(b)(2)(A). When a defendant is a party
in a criminal conspiracy, he is accountable for any conduct of his coconspirators
that is in furtherance of and reasonably foreseeable in connection with the jointly
undertaken criminal activity. United States v. Isaacson, 752 F.3d 1291, 1305 (11th
Cir. 2014). An act is reasonably foreseeable if it is a “necessary or natural
consequence of the unlawful agreement.” United States v. Cover, 199 F.3d 1270,
1275 (11th Cir. 2000) (per curiam), superseded by regulation on other grounds as
noted in United States v. Diaz, 248 F.3d 1065, 1107 (11th Cir. 2001). Reasonably
foreseeable acts may include those not expressly agreed to by the conspirators. Id.
The district court did not clearly err by finding that the discharge of a
firearm by defendants’ coconspirator was reasonably foreseeable to them.
Undisputed statements from the PSR show that defendants worked for a company
that transported money and other valuables in armored vehicles. Before robbing
one of those vehicles, they planned the robbery by discussing its security features
with their supervisor, and by making at least twenty phone calls to each other on
the morning of the robbery. Aurelhomme worked as an armored vehicle driver, so
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he and his coconspirators should have known that the guard in the vehicle was
usually armed. The discharge of a firearm is a necessary or natural consequence of
robbing an armored vehicle because an armored vehicle is usually guarded by
armed personnel. Further, discharging a firearm is assaultive conduct, which is
foreseeable given the nature of a robbery. USSG § 1B1.3 cmt. n.2. Applying the
firearm-discharge enhancement was not error.
B.
Second, Aurelhomme challenges the district court’s application of a four-
level enhancement because a person was abducted to facilitate the robbery. See id.
§ 2B3.1(b)(4). An abduction occurs when a victim is forced to accompany an
offender to a different location. Id. § 1B1.1 cmt. n.1(A).
The district court did not clearly err by finding that a guard in the armored
vehicle was abducted to facilitate the robbery. The victim testified that he was
thrown into the rear of the armored vehicle, and that his assailant forced him onto
the floor as the vehicle was driven away. The abduction facilitated the robbery
because the money in the vehicle was unloaded at the destination. Applying the
abduction enhancement was not error.
C.
Finally, Mondestin challenges the district court’s application of an
enhancement because a victim of the robbery suffered a bodily injury. See id.
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§ 2B3.1(b)(3). A defendant is accountable for all harm—including bodily injury,
id. § 1B1.3 cmt. n.4—resulting from his own acts and from reasonably foreseeable
acts of others in furtherance of a jointly undertaken criminal activity, id.
§ 1B1.3(a)(3).
The district court did not clearly err by finding that Mondestin was
accountable for the gunshot wound and heart attack that the victim suffered during
the robbery. Mondestin was accountable for the gunshot wound because it resulted
from his coconspirator’s discharge of a firearm, which was reasonably foreseeable
to Mondestin. See id. § 1B1.3(a)(3). And he was accountable for the heart attack
because it resulted from his coconspirator’s assault of the victim, which was
reasonably foreseeable conduct during a robbery. See id. § 1B1.3 cmt. n.2; see
also 18 U.S.C. § 1951(b)(1) (Hobbs Act robbery requires the use of actual or
threatened force, violence, or fear of injury to a person, his property, or the person
or property of a relative or family member or anyone in his company at the time).
Applying the injury enhancement to Mondestin’s sentence was not error.
AFFIRMED.
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