United States v. Jose Enrique Rodriguez

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 19, 2006
No. 05-14833 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 04-80006-CR-DTKH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE ENRIQUE RODRIQUEZ,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(June 19, 2006)

Before DUBINA, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
Appellant Jose Enrique Rodriguez appeals his 92-month sentence, imposed

after he pled guilty to possession of firearms and rounds of ammunition by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1). On appeal, Rodriguez first

argues that, in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160

L.Ed.2d 621 (2005), the district court violated his Sixth Amendment rights by

imposing sentence enhancements under U.S.S.G. § 2K2.1(b)(5) and § 3A1.2(b)(1)

based on facts that were neither charged in the indictment, nor admitted by him.

We review a preserved Booker claim on appeal de novo, but reverse only for

harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).

In Booker, the Supreme Court (1) held that sentence enhancements based

solely on judicial fact-finding pursuant to the mandatory Sentencing Guidelines

violated the Sixth Amendment, and (2) excised the provisions of the Sentencing

Reform Act that made the guidelines mandatory-18 U.S.C. §§ 3553(b)(1) and

3742(e) - thereby effectively rendering the Sentencing Guidelines advisory only.

Booker, 543 U.S. at 233-35, 259-60, 125 S.Ct. at 749-51, 764-65. A Booker

constitutional error is “the use of extra-verdict enhancements to reach a guidelines

result that is binding on the sentencing judge.” United States v. Mathenia, 409

F.3d 1289, 1291 (11th Cir. 2005) (internal quotations and citations omitted). The

use of extra-verdict enhancements in an advisory guidelines scheme, however, is

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not unconstitutional. United States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir),

cert. denied, 125 S.Ct. 2935 (2005). The right to appeal a sentence based on

Booker grounds may be waived pursuant to a plea agreement. United States v.

Grinard-Henry, 399 F.3d 1294, 1297 (11th Cir.), cert. denied, 544 U.S. 1041, 125

S. Ct. 2279 (2005).

As an initial matter, Rodriguez expressly waived his right to challenge the

Sentencing Guidelines under the Constitution. Even if Rodriguez had not waived

this right, the district court did not violate Booker because, although it found facts

supporting extra-verdict enhancements, it sentenced Rodriguez under an advisory

guidelines scheme.

Next, Rodriguez argues that the district court erred in applying §

2K2.1(b)(5) predicated on his possession of the firearms and ammunition being in

connection with the felony crimes of assault, battery, and resisting arrest with

violence. First, Rodriguez contends that the crime of assault is a misdemeanor, and

thus is irrelevant to the application of § 2K2.1(b)(5). Second, Rodriguez contends

that the government did not show that he committed a battery under Florida law

because the testimony adduced at sentencing indicated that the arresting officers

made contact with him, and not vice-versa. Third, he argues that the government

cannot show that he resisted arrest with violence because the testimony established

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that, although he was attempting to squirm away from the officers, he was pinned

in such a manner that he was incapable of doing violence. Additionally, Rodriguez

argues that there was no evidence to establish that the firearm in his waistband was

possessed “in connection with” any of the above felonies.

We review the district court’s factual findings for clear error, and the court’s

application of the guidelines to a given set of facts de novo. United States v.

Jackson, 276 F.3d 1231, 1233 (11th Cir. 2001). Section 2K2.1(b)(5) provides for

an increase of four levels if the defendant used or possessed a firearm “in

connection with another felony offense.” U.S.S.G. § 2K2.1(b)(5). The “other

offense” can be a federal, state, or local offense. U.S.S.G. § 2K2.1, comment.

(n. 7). We give the phrase “in connection with” an expansive definition. United

States v. Matos-Rodriguez,188 F.3d 1300, 1308-09 (11th Cir. 1999). A firearm is

used “in connection with” an offense under the guidelines if the defendant

possessed the firearm “with intent to use it to facilitate the commission of a felony

offense, or with intent to use it should it become necessary to facilitate that crime.”

Jackson, 276 F.3d at 1234-35.

Because the record demonstrates that Rodriguez, in the process of resisting

arrest, reached for a firearm in his possession while he was fleeing, and then

struggled with law enforcement officers when apprehended, we conclude that the

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district court did not err in applying an enhancement pursuant to § 2K2.1(b)(5).

Next, Rodriguez argues that the district court erred in assessing a three-point

increase in his base offense level pursuant to § 3A1.2(b)(1). He argues that his

conduct was neither the cause in fact, nor the proximate cause, of an officer’s

gunshot wound because that wound was the direct result of another officer’s failure

to follow his training in keeping his hand off of the trigger.

Section 3A1.2(b)(1) provides for a three-point increase to a defendant’s base

offense level if the defendant committed an assault against a law enforcement

officer during the course of an offense, or the flight therefrom, creating a

substantial risk of serious bodily injury. U.S.S.G. § 3A1.2(b)(1). The district court

may apply this guideline if the defendant acts in such a manner as to endanger the

lives of police officers who are attempting to arrest him. United States v. Stanley,

24 F.3d 1314, 1322 (11th Cir. 1994) (upholding the § 3A1.2(b)(1) enhancement

where a police officer rammed into the defendant’s fleeing car in order to protect

his fellow officers). We repeatedly have held that, after Booker, a district court

may continue to determine enhancements under the guidelines based on a

preponderance of the evidence, so long as it only considers the guidelines as

advisory. See, e.g., Rodriguez, 398 F.3d at 1297.

We conclude that the district court did not err in applying an enhancement

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pursuant to § 3A1.2(b)(1) because Rodriguez’s actions created a substantial risk of

serious bodily injury.

For the above-stated reasons, we affirm Rodriguez’s sentence.

AFFIRMED.