[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16385 ELEVENTH CIRCUIT
SEPTEMBER 3, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 08-80043-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SERGIO E. RIVERA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 3, 2009)
Before BLACK, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Sergio E. Rivera appeals his 60-month sentence, imposed after he pled guilty
to attempted bank robbery in violation of 18 U.S.C. §§ 2, 2113(a). At sentencing,
the district court applied a six-level increase to his offense level pursuant to §
2B3.1(b)(2)(B) of the U.S. Sentencing Guidelines (“Guidelines”) for the
“otherwise use[]” of a firearm.1 Rivera raises three arguments: (1) the district court
clearly erred by finding that he used a firearm during the offense, arguing that he
actually possessed a cigarette lighter that resembled a gun; (2) the district court
erroneously concluded that he “otherwise used,” as opposed to “brandished,” the
firearm, because he did not make any threats during the robbery and merely
pointed the weapon in the teller’s direction; and (3) the district court plainly erred
by resolving these issues under a preponderance of the evidence standard, rather
than a reasonable doubt standard.
I. Firearm versus dangerous weapon
Rivera contends that the district court erred in finding that he used an actual
firearm during the attempted bank robbery. “[W]e review the factual findings
underlying the district court’s sentencing determination for clear error.” United
States v. Williams, 527 F.3d 1235, 1247 (11th Cir. 2008) (citation omitted).
If a defendant challenges one of the factual bases for his sentence, the
government must prove the disputed fact by a preponderance of the evidence.
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The Probation Officer recommended a four-level enhancement pursuant to Guidelines §
2B3.1(b)(2)(D) for the “otherwise use[]” of a dangerous weapon.
2
United States v. Cataldo, 171 F.3d 1316, 1321 (11th Cir. 1999). The district court
may consider reliable hearsay evidence at sentencing, so long “as the evidence has
sufficient indicia of reliability, the [district] court makes explicit findings of fact as
to credibility, and the defendant has an opportunity to rebut the evidence.” United
States v. Zlatogur, 271 F.3d 1025, 1031 (11th Cir. 2001) (per curiam) (quotations
marks and citation omitted). In addition, “the appellate court shall give due regard
to the opportunity of the sentencing court to judge the credibility of the witnesses. .
. .” United States v. Glinton, 154 F.3d 1245, 1259 (11th Cir. 1998) (quotation
marks, alteration, and citation omitted).
Pursuant to the Guidelines, the term “[f]irearm” means a weapon that is
designed “to expel a projectile.” U.S. S ENTENCING G UIDELINES § 1B1.1 cmt.
n.1(G). The term “[d]angerous weapon” encompasses “an object that is not an
instrument capable of inflicting death or serious bodily injury but (I) closely
resembles such an instrument; or (II) the defendant used the object in a manner that
created the impression that the object was such an instrument . . . .” Id. at § 1B1.1
cmt. n.1(D)(ii).
The evidence presented during sentencing included: (1) testimony from the
bank teller that the object Rivera held during the robbery appeared to be a real gun
and that Rivera, an employee of the bank, previously boasted of owning a gun; (2)
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testimony from the investigating officer that Rivera’s co-defendant asserted that
the gun was real and that Rivera stated, en route to the robbery, that he hoped to be
able to shoot a particular bank employee; and (3) recent receipts documenting
Rivera’s purchases from a hunting/fishing shop with a shooting range. Given this
evidence, Rivera has failed to meet his burden and to establish that the district
court clearly erred by finding that Rivera possessed an actual firearm during the
robbery.
II. Otherwise use versus brandished or possessed
Rivera next contends that the district court erred in concluding that his
conduct constituted “otherwise us[ing]” a firearm as opposed to “brandish[ing]” a
firearm. U.S. S ENTENCING G UIDELINES § 1B1.1 cmt. n.1(C), (I). Our review is de
novo. See United States v. Cover, 199 F.3d 1270, 1278 (11th Cir. 2000) (per
curiam).
In calculating a defendant’s robbery offense level, Guidelines § 2B3.1(b)(2)
provides, inter alia, that:
(B) if a firearm was otherwise used, increase by 6 levels;
(C) if a firearm was brandished or possessed, increase by
5 levels;
(D) if a dangerous weapon was otherwise used, increase
by 4 levels;
(E) if a dangerous weapon was brandished or possessed,
increase by 3 levels . . . .
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U.S. S ENTENCING G UIDELINES § 2B3.1(b)(2)(B)-(E). The Guidelines provide that
“otherwise used” means that “the conduct did not amount to the discharge of a
firearm but was more than brandishing, displaying, or possessing a firearm or other
dangerous weapon.” U.S. S ENTENCING G UIDELINES § 1B1.1 cmt. n.1(I).
“Brandished” means “that all or part of the weapon was displayed, or the presence
of the weapon was otherwise made known to another person, in order to intimidate
that person, regardless of whether the weapon was directly visible to that person.”
Id. at § 1B1.1 cmt. n.1(C). We have held that “the use of a firearm to make an
explicit or implicit threat against a specific person constitutes ‘otherwise use’ of
the firearm.” Cover, 199 F.3d at 1278.
The evidence showed that Rivera pointed his gun at the bank teller while
instructing her to get the keys to the bank’s vault and escorting her to the vault
area. Accordingly, Rivera did more than make the presence of his gun known to
the teller – he used it to obtain her compliance with his requests. The district court
correctly concluded that Rivera used the gun to implicitly threaten the teller, and it
properly increased his offense level for his “otherwise use[]” of a firearm.
III. Standard of Proof
Lastly, Rivera contends that the district court applied the incorrect standard
of proof. Because Rivera did not raise this issue before the district court, we
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review it only for plain error. See United States v. Martinez, 407 F.3d 1170, 1173
(11th Cir. 2005).
Pursuant to Apprendi v. New Jersey, facts that would increase a crime’s
penalty beyond the statutory maximum must be found by a jury beyond a
reasonable doubt. 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000).
Post-Apprendi, the Supreme Court held, in United States v. Booker, 543 U.S. 220,
232-44, 125 S. Ct. 738, 749-56 (2005), that “the Sixth Amendment right to trial by
jury is violated where under a mandatory guidelines system a sentence is increased
because of an enhancement based on facts found by the judge that were neither
admitted by the defendant nor found by the jury.” United States v. Smith, 480 F.3d
1277, 1281 (11th Cir. 2007) (citation omitted). We have held that “[w]hen the
district court applies the Guidelines in an advisory manner, nothing in Booker
prohibits district courts from making, under a preponderance-of-the-evidence
standard, additional factual findings that go beyond a defendant’s admissions.” Id.
“Moreover, the district court’s factual findings for purposes of sentencing may be
based on, among other things, . . . evidence presented during the sentencing
hearing.” Id. (quotation marks, alteration, and citation omitted).
As Rivera acknowledges, his argument is foreclosed by precedent because
his 60-month sentence was less than the statutory maximum, and the district court
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applied the Guidelines in an advisory manner. Accordingly, there was no Apprendi
or Booker error.
IV. Conclusion
Upon review of the record and consideration of the parties’ briefs, we
affirm.
AFFIRMED.
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