           Case: 13-13543   Date Filed: 08/25/2014   Page: 1 of 5


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-13543
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:13-cr-20219-CMA-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

RONALD ROGERS,

                                                         Defendant-Appellant.

                      ________________________

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

                            (August 25, 2014)

Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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      The District Court sentenced Ronald Rogers to prison for 92 months on a

plea of guilty to possession of a firearm and ammunition by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1). He now appeals his sentence, arguing that the

District Court erred in enhancing the base offense level for his offense by four

levels pursuant to U.S.S.G. § 2K2.1(b)(6)(B) for using or possessing a firearm in

connection with another felony offense, aggravated assault. Rogers contends that

he did not commit the assault because he was acting in the defense of himself and

his property under Florida law.

      We review the District Court’s findings of fact supporting a sentencing

enhancement, including an enhancement for possessing a firearm in connection

with another felony offense, for clear error. United States v. Jackson, 276 F.3d

1231, 1233 (11th Cir. 2001). We review the District Court’s application of the

facts to justify a Sentencing Guidelines sentencing enhancement de novo. United

States v. Spriggs, 666 F.3d 1284, 1286 (11th Cir. 2012). Under clear error review,

we will affirm the District Court’s determination if it is “plausible in light of the

record reviewed in its entirety.” United States v. Ladson, 643 F.3d 1335, 1341

(11th Cir. 2011) (quotation mark and citation omitted).

      Under the Sentencing Guidelines, a four-level enhancement applies where a

defendant “used or possessed any firearm or ammunition in connection with

another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). “Another felony offense” is


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“any federal, state, or local offense . . . punishable by imprisonment for a term

exceeding one year, regardless of whether a criminal charge was brought, or a

conviction obtained.” Id. § 2K2.1 cmt. n.14(C). When the Government asks the

court to apply an Guidelines enhancement over the defendant’s objection that the

relevant facts do not support the enhancement, the Government has the burden of

establishing such facts by a preponderance of the evidence. United States v.

Washington, 714 F.3d 1358, 1361 (11th Cir. 2013).

      Under Florida law, an assault is aggravated when it is committed “[w]ith a

deadly weapon without intent to kill” or “[w]ith an intent to commit a felony.” Fla.

Stat. § 784.021(1) (2013). Assault, in turn, is “an intentional, unlawful threat by

word or act to do violence to the person of another, coupled with an apparent

ability to do so, and doing some act which creates a well-founded fear in such

other person that such violence is imminent.” Id. § 784.011(1).

      Florida law states that a person is justified in using non-deadly force against

another when he “reasonably believes that such conduct is necessary to defend . . .

against the other’s imminent use of unlawful force.” Id. § 776.012. Further, a

person is justified in using deadly force, and does not have a duty to retreat, if he

“reasonably believes that such force is necessary to prevent imminent death or

great bodily harm” or to “prevent the imminent commission of a forcible felony.”




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Id. § 776.012(1). A person is presumed to have held a reasonable fear of imminent

peril of death or great bodily harm when using deadly defensive force if

      (a) The person against whom the defensive force was used was in the
      process of unlawfully and forcefully entering, or had unlawfully and
      forcibly entered, a dwelling, residence, or occupied vehicle . . . and

      (b) The person who uses defensive force knew or had reason to
      believe that an unlawful and forcible entry or unlawful and forcible
      act was occurring or had occurred.

Id. § 776.013(1). Also, a person who is not engaged in unlawful activity and is

attacked in a place where he has a right to be has no duty to retreat and may use

deadly force if he “reasonably believes it is necessary to do so to prevent death or

great bodily harm” or to “prevent the commission of a forcible felony.” Id.

§ 776.013(3).

      The District Court did not clearly err in finding that Rogers committed acts

that constitute an aggravated assault under Florida law. There was ample evidence

to support the court’s finding that during a telephone call with his ex-girlfriend,

Trina Williams, Rogers threatened to shoot their daughter, who was staying at

Rogers’s home; and that when Williams arrived to retrieve the daughter, he

displayed a firearm and ordered her to back off. Therefore, the court had sufficient

evidence before it to find that Rogers intentionally and unlawfully threatened to do

violence to Williams, that he had the apparent ability to carry it out, that he created




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a well-founded fear in her that violence was imminent, and that his behavior was

aggravated. See Fla. Stat. §§ 784.011(1), 784.021(1).

      Nor did the court clearly err in finding that Rogers’s actions were not

justified under Florida law. Rogers presented no evidence and never claimed that

Williams or her brothers had attempted to enter his home when he threatened her.

While Rogers argues that his actions were justified because he was in fear of

imminent harm by Williams’s brothers, there was no evidence that he saw

Williams’s brothers or that they were even present, and the evidence is similarly

undisputed that he displayed the firearm to Williams, not to her brothers.

Therefore, it was not clearly erroneous to find that Rogers’s actions were not

justified under Florida law. See Fla. Stat. §§ 776.012, 776.013(1), 776.013(3).

      Given these these fact findings, the court did not err in concluding that

Rogers used or possessed a firearm in connection with another felony offense and

applying the four-level § 2K2.1(b)(6)(B) enhancement.

      AFFIRMED.




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