                    Case: 12-11838         Date Filed: 01/28/2013   Page: 1 of 4

                                                                        [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                     ________________________

                                             No. 12-11838
                                         Non-Argument Calendar
                                       ________________________

                                D.C. Docket No. 4:11-cr-10017-JEM-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellee,

                                                versus

STEVEN RICHARD KOCIS,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                      ________________________

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

                                           (January 28, 2013)

Before CARNES, MARCUS, and KRAVITCH, Circuit Judges.

PER CURIAM:
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      After a jury trial, Steven Kocis was convicted of one count of conspiring to

encourage or induce an alien to unlawfully enter the United States for the purpose

of commercial advantage or private financial gain, in violation of 8 U.S.C. § §

1324(a)(1)(A)(iv), (A)(v)(I), and (B)(i), and two counts of alien smuggling for the

purpose of commercial advantage or private financial gain, in violation of 8 U.S.C.

§ 1324(a)(2)(B)(ii). He challenges on appeal his sentence of 36 months

imprisonment.

                                          I.

      The district court applied United States Sentencing Guidelines § 2L1.1

(Nov. 2011) to calculate Kocis’ base offense level of 12. The court then applied a

2-level enhancement based on Kocis’ role as “an organizer, leader, manager, or

supervisor” in criminal activity, U.S.S.G. § 3B1.1(c), resulting in a total offense

level of 14. Combined with a criminal history category of I, the applicable

guidelines range was 15 to 21 months imprisonment. However, the fact that Kocis

committed his offenses “for the purpose of commercial advantage or private

financial gain” triggered a 36-month mandatory minimum sentence, 8 U.S.C. §

1324(a)(2)(B)(ii), which made his guidelines range 36 months imprisonment. See

U.S.S.G. § 5G1.1(b). The district court sentenced Kocis to the statutory minimum

of 36 months imprisonment.

                                          II.


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      Kocis contends that the district court erred by imposing the statutory

minimum sentence of 36 months because the verdict form did not specifically ask

the jury to indicate whether it found that he committed the charged offenses “for

the purpose of commercial advantage or private financial gain”—the fact that

triggered the 36-month mandatory minimum. According to Kocis, that is contrary

to United States v. O’Brien, — U.S. —, 130 S. Ct. 2169 (2010), and Apprendi v.

New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). Because Kocis did not make

that argument at sentencing, we review only for plain error. United States v.

Dudley, 463 F.3d 1221, 1227 (11th Cir. 2006).

                                          III.

      In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” 530 U.S. at 490, 120 S. Ct. at 2362–63. In O’Brien, the Court stated that

“judge-found sentencing factors cannot increase the maximum sentence a

defendant might otherwise receive based purely on the facts found by the jury.”

130 S. Ct. at 2175. However, neither Apprendi nor O’Brien requires a particular

format for the verdict form. All that is required is that the jury, not the judge,

makes the factual finding that is used to enhance the defendant’s sentence.




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      Here, the district court instructed the jurors that to find Kocis guilty of

counts two and three, they “must find that the Government has proved . . . beyond

a reasonable doubt . . . that the defendant’s motive was commercial advantage or

private financial gain.” After deliberations, the jury returned a verdict of guilty on

both of those counts. We presume that the jurors followed the instructions the

court gave them. Evans v. Sec’y, Fla. Dep’t of Corr., 699 F.3d 1249, 1253 (11th

Cir. 2012). If the jury had not found that Kocis’ motive was commercial

advantage or private financial gain, it could not have returned a guilty verdict on

counts 2 and 3. The fact that the jury returned a guilty verdict on those counts can

mean only one thing—that it found that Kocis’ motive was commercial advantage

or private financial gain. Accordingly, the district court did not err—much less

plainly err—by sentencing Kocis to 36 months imprisonment based on that fact.

      AFFIRMED.




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