           Case: 19-12046   Date Filed: 04/02/2020   Page: 1 of 6



                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-12046
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 6:18-cr-00087-PGB-LRH-3



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,


                                 versus

DERRICK M. DAVIS,

                                                         Defendant-Appellant.

                      ________________________

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

                             (April 2, 2020)

Before MARTIN, JORDAN, and NEWSOM, Circuit Judges.

PER CURIAM:
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      Derrick Davis appeals his 175-month sentence. This sentence was imposed

as a result of his conviction for two counts of aiding and abetting Hobbs Act

robbery, in violation of 18 U.S.C. §§ 2 and 1951, and one count of Hobbs Act

robbery, in violation of § 1951, related to the armed robbery of multiple gas

stations. Davis planned the robberies, provided the firearms, and drove the

getaway car. Davis’s co-defendants, Antonio Mobley and Travis Hall, used the

same handgun, ammunition, and vehicle during each of the robberies. Davis

argues that the district court clearly erred in sentencing him to a longer prison term

based on Mobley’s and Hall’s use of firearms. Davis says their brandishing or

possessing the handgun did not relate to his conduct under United States

Sentencing Guidelines § 1B1.3(a)(1)(B). Further, Davis argues that the district

court abused its discretion by not granting him a downward variance due to his

minor role in the crimes. After careful review, we affirm.

                                          I.
      Davis first claims the district court erred by applying two six-level

enhancements and one five-level enhancement in calculating his sentence. He

argues that he is not responsible for the acts of his co-defendants, and the only

evidence to support that he knew of the handgun was based on Hall’s and

Mobley’s testimony. Davis implies the district court should not have believed the




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testimony of Hall and Mobley over the evidence he submitted showing he did not

know about or agree to use firearms during the offense.

      We review the district court’s factual findings for clear error. United States

v. Castaneda-Pozo, 877 F.3d 1249, 1251 (11th Cir. 2017) (per curiam). We review

de novo the district court’s application of those facts to justify a sentencing

enhancement. Id. Section 2B3.1 of the Sentencing Guidelines calls for longer

sentences based on specific offense characteristics, including a six-level

enhancement “if a firearm was otherwise used” and a five-level enhancement “if a

firearm was brandished or possessed.” USSG § 2B3.1(b)(2)(B), (C). Sentencing

enhancements may be applied for all relevant conduct attributable to a defendant.

See USSG § 1B1.3(a)(1)(B); see also Castaneda-Pozo, 877 F.3d at 1251 (“In

determining the base offense level under the Guidelines, courts must consider all of

a defendant’s relevant conduct.”). Relevant conduct includes all “acts and

omissions taken by a defendant ‘in concert with others’ that were in furtherance of

the jointly undertaken criminal activity and that were reasonably foreseeable to the

defendant.” United States v. Maddox, 803 F.3d 1215, 1221 (11th Cir. 2015) (per

curiam) (quoting USSG § 1B1.3(a)(1)(B)).

      The government is required to prove a defendant has engaged in relevant

conduct by a preponderance of the evidence. Id. In determining whether the

government has met its burden, the district court has discretion to make credibility


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determinations to resolve conflicting witness testimony. See Castaneda-Pozo, 877

F.3d at 1252. “Where evidence gives rise to two reasonable and different

constructions . . . the fact finder’s choice between the two constructions cannot be

clearly erroneous.” United States v. Barsoum, 763 F.3d 1321, 1333 (11th Cir.

2014). The district court’s choice of who to believe is “conclusive on the appellate

court” unless the testimony is “exceedingly improbable,” that is, “contrary to the

laws of nature, or is so inconsistent or improbable on its face that no reasonable

factfinder could accept it.” United States v. Shabazz, 887 F.3d 1204, 1215 (11th

Cir. 2018) (quotation marks omitted).

      Here, the district court weighed the evidence, considered the inconsistencies

in each co-defendant’s testimony, and found Hall and Mobley to be credible. The

district court found Hall’s testimony—that Davis brought a handgun with him into

the getaway vehicle, which Davis then gave to Hall to use during the robbery—to

be corroborated by the victim of that crime. Hall and Mobley also testified that

Davis handed Mobley the handgun used to commit the second robbery. According

to Davis, however, Mobley took the gun (which Davis admitted to owning) while

in Davis’s vehicle without Davis seeing. But the district court found this version

of events “defies logic” and concluded that, “[o]n balance, the testimony of Hall

and Mobley is credible . . . [and] sufficient by a preponderance of the evidence to

support the enhancements.” This was a reasonable determination of the facts and


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the district court did not clearly err in applying the sentencing enhancements.

Barsoum, 763 F.3d at 1333.

                                          II.

      Davis also argues that the district court erred by failing to grant a downward

variance due to his minor role in the crimes and his lack of knowledge that his co-

defendants planned to use a firearm during the crimes. He does not dispute the

district court’s calculation of his guideline range or raise any other challenges.

      We review for clear error a district court’s factual determination of a

defendant’s role in the offense. United States v. Rodriguez De Varon, 175 F.3d

930, 937 (11th Cir. 1999) (en banc). District courts have the discretion to reduce a

defendant’s sentence when his “role in the offense can be described as minimal,

minor, or somewhere in between.” Id. at 939. The determination of any mitigating

role “is heavily dependent upon the facts of the particular case.” Id. at 938

(quotation marks omitted). The district court measures the relevant conduct

attributed to the defendant against the conduct of other participants to determine

their roles in the offense. Id. at 945.

      The district court’s decision to deny Davis a downward variance was not

clearly erroneous. The district court did recognize Davis was “not the person . . .

with the gun.” But “[t]he fact that a defendant’s role may be less than that of other

participants engaged in the relevant conduct may not be dispositive of role in the


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offense.” Rodriguez De Varon, 175 F.3d at 944. The district court apparently

adopted this view here. It denied the downward variance because of the “high

risk” factors involved any time a robbery occurs and the specific harm to the

victims in these robberies. The record supports this finding. Davis planned the

robberies and was responsible for selling the stolen merchandise. He obtained and

admitted ownership of the handgun used in the robberies. And that same gun was

used during the robberies, in which one victim was injured and one victim was

restrained. Because the district court’s measurement of Davis’s conduct compared

to Hall and Mobley’s conduct is supported by the record, we will not disturb

Davis’s sentence. See Rodriguez De Varon, 175 F.3d at 945 (“So long as the basis

of the trial court’s decision is supported by the record . . . it will be rare for an

appellate court to conclude that . . . determination is clearly erroneous.”).

       AFFIRMED.




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