            Case: 17-10910   Date Filed: 11/09/2017   Page: 1 of 6


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 17-10910
                          Non-Argument Calendar
                        ________________________

                   D.C. Docket No. 3:16-cr-00025-MCR-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                    versus

DEANGELO A. ROME,

                                                          Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                     for the Northern District of Florida
                       ________________________

                             (November 9, 2017)

Before MARCUS, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:

     Appellant Deangelo Alquan Rome appeals his sentence after pleading guilty
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to three counts of possession of a firearm or ammunition, or both, by a convicted

felon. He argues that the district court improperly considered unreliable hearsay

evidence when determining his base offense level under the Sentencing Guidelines.

Because the district court did not err in considering the hearsay evidence

introduced at sentencing, we affirm Rome’s sentence.

                                           I.

      In 2016, Rome was indicted on three counts of possession of a firearm and

ammunition by a convicted felon. The first count stemmed from an incident in

which an officer found Rome in his car with marijuana, a nine-millimeter pistol,

and ammunition. The second count arose after police responded to a “shots fired”

call and investigators found, in the backyard of the shooting victim’s house, a

loaded magazine with Rome’s fingerprint. The third count was premised on the

fact that officers, responding to a call of armed individuals in the area, found a rifle

with Rome’s palm print and DNA evidence inside a vehicle and Rome hiding in

the house where the vehicle was parked.

      Rome pled guilty to all three counts, and the district court sentenced him

according to its calculation of the Sentencing Guidelines. Relevant to the current

appeal, the district court calculated Rome’s base offense level after finding that the

ammunition Rome possessed in the second count was connected to an offense of

attempted first-degree murder under Sentencing Guideline § 2X1.1’s cross-


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reference to the separate offense with which the ammunition was connected.

      The district court’s decision to apply the cross reference for attempted first-

degree murder relied, in part, on testimony from Officer Amber Bernard, who

investigated the second count. Bernard testified that after the incident underlying

Rome’s second count, investigators found an extended magazine loaded with

ammunition in the shooting victim’s backyard, and the magazine had Rome’s

fingerprint on it. She also testified that the shooting victim, after seeing a photo

array, identified Rome as the shooter; in a separate interview, the victim also told

Bernard that Rome shot him from the backyard. The victim explained to Bernard

that Rome may have shot him because they had a “beef.” In her testimony,

Bernard theorized that Rome shot first from the backyard to drive the victim to the

front door, where other shooters were waiting.

                                         II.

      Now, on appeal, Rome argues that the district court erred when it calculated

his base offense level with a cross reference of attempted first-degree murder. He

argues the only evidence that he had a premeditated intent to kill—an element of

first-degree murder—is hearsay evidence of the shooting victim’s out-of-court

statements introduced through Bernard’s testimony. Rome asserts that this hearsay

testimony is unreliable, and therefore reasons that the district court should not have

relied on it to conclude that he had attempted first-degree murder.


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      We typically review for clear error the district court’s findings of fact based

on hearsay evidence admitted at a sentencing hearing. United States v. Query, 928

F.2d 383, 384-86 (11th Cir. 1991). But as Rome acknowledges, “defense counsel

did not object to the introduction of hearsay evidence at sentencing.” Blue Br. 16.

Therefore, the objection was waived, and this court reviews the district court’s

decision for plain error. 1 See United States v. Parrish, 427 F.3d 1345, 1347 (11th

Cir. 2005). “To prevail under a plain error standard, [Appellant] must prove that

(1) there is an error; (2) that is plain; and (3) that affects substantial rights.” Id. at

1348. If a defendant establishes all three requirements, we may choose to exercise

our discretion to correct a forfeited error, but only if “the error serious affects the

fairness, integrity, or public reputation of judicial proceedings.” United States v.

Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003) (citation, internal quotation marks,

and alterations omitted).

      A district court does not commit an error in relying on hearsay evidence at

sentencing “as long as the evidence has sufficient indicia of reliability, the court

makes explicit findings of fact as to credibility, and the defendant has an

opportunity to rebut the evidence.” United States v. Anderton, 136 F.3d 747, 751


      1
         Rome argues that we should review the decision below de novo, citing United States v.
 Ghertler, 605 F.3d 1256 (11th Cir. 2010). But Ghertler considered the sufficiency of the
 district court’s explanation for the sentence it imposed. Here, Rome does not challenge the
 sufficiency of the evidence supporting the district court’s explanation for its sentence, but
 rather the court’s reliance on hearsay evidence underlying its explanation for its sentence.

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(11th Cir. 1998). Here, no error occurred.

      Bernard’s testimony about the shooting victim’s statements, and the

shooting victim’s statements themselves as reported by Bernard, were sufficiently

reliable. In fact, Bernard simply repeated the victim’s statements as transcribed in

a recorded interview, which defense counsel introduced. Indeed, the district court

made an explicit finding of fact noting this and finding Bernard’s testimony

credible.   It stated Bernard’s testimony was “consistent with what’s in the

transcript” that defense counsel read during sentencing.

      As for the reliability of the victim’s statements, they are supported by the

fact that the victim was actually shot, the discovery of the ammunition magazine

with Rome’s fingerprint in the backyard and Rome’s own admission that he had

been in the backyard. In addition, the court made findings of fact and cited

evidence that Rome and the other shooters “traveled to the victim’s residence, they

traveled with loaded firearms, they positioned themselves strategically in order to

carry out this homicide, and they planned an escape” to support its finding that the

attempted murder was premeditated. Considering the undisputed factual record

here, it is difficult to reach any other conclusion than that Rome acted with

premeditation.

      Defense counsel also had an opportunity to rebut Bernard’s testimony: she

cross-examined Bernard. Anderton, 136 F.3d at 751. Thus, the district court did


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not commit error—either plain or otherwise—in relying on Bernard’s hearsay

testimony because her testimony had sufficient indicia of reliability, the court

made explicit findings of facts as to the reliability of the testimony, and Rome had

the opportunity to rebut the evidence.

                                           III.

         For these reasons, the district court did not plainly err in calculating Rome’s

base offense level using a cross reference to attempted first-degree murder under

Sentencing Guideline § 2X1.1. We therefore affirm the sentence of the district

court.

         AFFIRMED.




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