[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-11394 SEPTEMBER 8, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 05-00085-CR-FTM-29-SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMIRO HERNANDEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 8, 2006)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Ramiro Hernandez appeals his 18-month sentence for possession
of a firearm by an illegal alien, in violation of 18 U.S.C. §§ 922(g)(5) and
924(a)(2), attacking the district court’s application of a four-level sentencing
enhancement, pursuant to U.S.S.G. § 2K2.1(b)(5), for use or possession of a
firearm in connection with two other felony offenses, namely: (1) “deriv[ing]
support or maintenance in whole or in part from what is believed to be the earnings
or proceeds of such person’s prostitution,” in violation of Fla. Stat. § 796.05(1);1
and (2) failing to file a written statement with the Commissioner of the
Immigration and Naturalization Service (“INS”) within five days of “keep[ing],
maintain[ing], control[ling], support[ing], or harbor[ing] in any house or place for
the purpose of prostitution . . . any individual, knowing or in reckless disregard of
the fact that the individual is an alien,” in violation of 18 U.S.C. § 2424(a).2
On appeal, Hernandez argues that the district court clearly erred in finding
that the shotgun he possessed was involved in the other felonies because: (1) he
was not shown to have actually gained earnings, support, or maintenance from
prostitution, as required by Florida state precedent interpreting § 796.05; (2) the
statute sanctions economic gain from prostitution rather than suggesting
punishment for weapons violations; and (3) section 2424(a) is only a ministerial
1
This violation is punishable up to five years imprisonment. See Fla. Stat. §§ 775.082(3)(d),
796.05(1).
2
This violation is punishable up to 10 years imprisonment. See 18 U.S.C. § 2424(a).
2
reporting requirement, and “[t]he temporary possession of the firearm by
[Hernandez] had nothing to do with the non-reporting to the INS and was therefore
not connected.” He also appears to argue for the first time on appeal that the
offenses under § 796.05(1) and § 2424(a) should have been combined, for
sentencing purposes and pursuant to U.S.S.G. § 3D1.2,3 with each other and with
the offense of conviction because these three offenses occurred contemporaneously
and “although legally distinct offenses, represent[] essentially the same wrongful
conduct[.]”
“This court reviews the district court’s application and interpretation of the
sentencing guidelines under the de novo standard of review, but reviews its
findings of fact for clear error.” United States v. Rhind, 289 F.3d 690, 693 (11th
Cir. 2002). The district court’s determination that the defendant use 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); see also United States v.
Gainey, 111 F.3d 834, 837 (11th Cir. 1997) (holding that district court’s factual
finding that the defendant possessed firearm “in connection with” his heroin
offense was not clearly erroneous). Because Hernandez did not raise an argument
under § 3D1.2 in the district court, we review this argument for plain error.
3
This guideline provides that “[a]ll counts involving substantially the same harm shall be
grouped together into a single Group.” U.S.S.G. § 3D1.2.
3
See United States v. Shelton, 400 F.3d 1325, 1328-29 (11th Cir. 2005).4
The Sentencing Guidelines provide that, for a defendant like Hernandez,
who was convicted under 18 U.S.C. § 922(g), the base offense level is 14. See
U.S.S.G. § 2K2.1(a)(6), comment. (n.3). “If the defendant used or possessed any
firearm or ammunition in connection with another felony offense; or possessed or
transferred any firearm or ammunition with knowledge, intent, or reason to believe
that it would be used or possessed in connection with another felony offense,” his
offense level is increased by 4 levels, or to a minimum of level 18. Id.
§ 2K2.1(b)(5). The Guidelines define the term “another felony offense” as
“offenses other than explosives or firearms possession or trafficking offenses.” Id.
§ 2K2.1, comment. (n.15).
Because the Guidelines do not define the phrase “in connection with” in
§ 2K2.1(b)(5), we have held that the phrase should be interpreted expansively, not
restrictively, and “merely reflects the context of [the defendant’s] possession of the
firearm.” See Rhind, 289 F.3d at 695 (brackets in original, quotations and citations
omitted). “[T]he firearm does not have to facilitate the underlying offense.” Id.
4
To establish plain error, Hernandez must show that there is: “(1) error, (2) that is plain, and
(3) that affects substantial rights. If all three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Shelton, 400 F.3d at 1328-29
(quotations and citations omitted).
4
Additionally, even if the “other” offense occurs contemporaneously with, and
without a distinction of conduct from, the offense of conviction, the four-level
enhancement may still be applied. See United States v. Jackson, 276 F.3d 1231,
1234 (11th Cir. 2001) (upholding enhancement where defendant pled guilty to
being a felon in possession of a firearm, which offense occurred
contemporaneously with the “other” state felony of assault and battery of police
officers). Further, firearm possession is “in connection with” other criminal
activity when the possession“embolden[s]” the defendant to undertake the other
criminal activity. See id. at 1234-35 (noting that when defendants’ possession of
firearms “len[t] support to an inference that the defendants would have, if
necessary, used their firearms in furtherance of their crimes[,]” this inference
permitted a finding that the possession was “in connection with” the crimes of
conviction).
The district court did not err, plainly or otherwise, in failing to group
Hernandez’s illegal conduct together or clearly err in finding that Hernandez
possessed the shotgun in connection with other offenses. First, Hernandez’s
argument that the two prostitution-related offenses each constituted just “any
other” and not “another” felony offense is without merit because the Guidelines
specifically provide that the term “another felony offense” includes “offenses other
5
than explosives or firearms possession or trafficking offenses.” U.S.S.G. § 2K2.1,
comment. (n.15). Hernandez’s “other offenses” were prostitution-related offenses,
which did not involve explosives, firearms, or trafficking. Likewise, no
“distinction of conduct” between the offense of conviction and the other felony
offense need exist. See Jackson, 276 F.3d at 1234.5
Additionally, Hernandez’s argument that these offenses should have been
grouped together, pursuant to U.S.S.G. § 3D1.2, is without merit. Section 3D1.2
provides that “[a]ll counts involving substantially the same harm shall be grouped
together into a single Group.” U.S.S.G. § 3D1.2 (emphasis added). Hernandez
was only charged with one count of firearm possession by an illegal alien.
Therefore, there were no counts to be grouped together. Cf. U.S.S.G. § 3D1.2,
comment. (n.6) (providing that firearms counts are to be grouped together when
“[t]he defendant is convicted of three counts of unlicensed dealing in firearms”)
(emphasis added). Thus, the district court did not commit error, plain or otherwise,
in applying the enhancement.
Furthermore, Hernandez’s argument that these offenses were not “in
5
Hernandez’s citation of United States v. Szakacs, 212 F.3d 344 (7th Cir. 2000) (persuasive
authority), is unpersuasive. In Szakacs, the defendants were convicted for conspiracy to steal
firearms from a licensed dealer, and the Seventh Circuit refused to apply § 2K2.1(b)(5)’s four-level
enhancement for the “other” state felony of conspiracy to commit burglary because “the state law
offense and the federal offense were essentially the same crime.” See id. at 349-50. Here, however,
Hernandez’s offense of conviction (firearm possession by an illegal alien) is substantively different
than the prostitution-related offenses underlying the enhancement.
6
connection with” his offense of conviction conduct also fails. Hernandez admitted
to the facts recalled in the presentence investigation report (“PSI”), which stated
that he worked for approximately six months at a house where he knew there was a
shotgun and loaded it on one occasion; and where he performed the duties of
protecting the house (possibly with the aid of the shotgun), and ensuring that
patrons paid in advance for sex with individuals whom Hernandez believed to be
illegal aliens.
Under our expansive view of the phrase “in connection with,” Hernandez’s
admissions provided facts upon which the district court could easily determine that
Hernandez’s shotgun possession occurred in connection with both: (1) his
derivation of support or maintenance from prostitution, in violation of Fla. Stat.
§ 796.05(1);6 and (2) his failure to file a written statement with the Commissioner
of the INS within five days of keeping, maintaining, controlling, supporting, or
harboring individuals he knew to be aliens in the house for the purpose of
prostitution, in violation of 18 U.S.C. § 2424(a). See Rhind, 289 F.3d at 695
(concluding that this Court expansively interprets the phrase “in connection with”).
6
Hernandez’s contention that the government did not show that he derived support from
prostitution is without merit because he admitted to working for six months as a doorman at a house
of prostitution. Cf. State v. Morris, 540 So.2d 226 (Fla. Dist. Ct. App. 1989) (holding that merely
getting support from someone known to engage in prostitution is insufficient for a conviction under
§ 796.05(1)).
7
Like the defendants discussed in Jackson, Hernandez’s shotgun possession, which
he admitted served to protect the prostitution house, emboldened him in
undertaking his other criminal activities of earning money from prostitution and
failing to report prostitution performed by illegal aliens. See Jackson, 276 F.3d at
1234-35 (defendants’ firearm possession “len[t] support to an inference that the
defendants would have, if necessary, used their firearms in furtherance of their
crimes”). Accordingly, the district court did not clearly err in applying the four-
level enhancement, and we affirm Hernandez’s sentence.
AFFIRMED.
8