                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                               No. 08-16385                 ELEVENTH CIRCUIT
                                                             SEPTEMBER 3, 2009
                           Non-Argument Calendar
                                                             THOMAS K. KAHN
                         ________________________
                                                                  CLERK

                    D. C. Docket No. 08-80043-CR-DTKH

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

SERGIO E. RIVERA,

                                                           Defendant-Appellant.


                         ________________________

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

                              (September 3, 2009)

Before BLACK, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

     Sergio E. Rivera appeals his 60-month sentence, imposed after he pled guilty
to attempted bank robbery in violation of 18 U.S.C. §§ 2, 2113(a). At sentencing,

the district court applied a six-level increase to his offense level pursuant to §

2B3.1(b)(2)(B) of the U.S. Sentencing Guidelines (“Guidelines”) for the

“otherwise use[]” of a firearm.1 Rivera raises three arguments: (1) the district court

clearly erred by finding that he used a firearm during the offense, arguing that he

actually possessed a cigarette lighter that resembled a gun; (2) the district court

erroneously concluded that he “otherwise used,” as opposed to “brandished,” the

firearm, because he did not make any threats during the robbery and merely

pointed the weapon in the teller’s direction; and (3) the district court plainly erred

by resolving these issues under a preponderance of the evidence standard, rather

than a reasonable doubt standard.

                        I. Firearm versus dangerous weapon

       Rivera contends that the district court erred in finding that he used an actual

firearm during the attempted bank robbery. “[W]e review the factual findings

underlying the district court’s sentencing determination for clear error.” United

States v. Williams, 527 F.3d 1235, 1247 (11th Cir. 2008) (citation omitted).

       If a defendant challenges one of the factual bases for his sentence, the

government must prove the disputed fact by a preponderance of the evidence.


       1
        The Probation Officer recommended a four-level enhancement pursuant to Guidelines §
2B3.1(b)(2)(D) for the “otherwise use[]” of a dangerous weapon.

                                             2
United States v. Cataldo, 171 F.3d 1316, 1321 (11th Cir. 1999). The district court

may consider reliable hearsay evidence at sentencing, so long “as the evidence has

sufficient indicia of reliability, the [district] court makes explicit findings of fact as

to credibility, and the defendant has an opportunity to rebut the evidence.” United

States v. Zlatogur, 271 F.3d 1025, 1031 (11th Cir. 2001) (per curiam) (quotations

marks and citation omitted). In addition, “the appellate court shall give due regard

to the opportunity of the sentencing court to judge the credibility of the witnesses. .

. .” United States v. Glinton, 154 F.3d 1245, 1259 (11th Cir. 1998) (quotation

marks, alteration, and citation omitted).

       Pursuant to the Guidelines, the term “[f]irearm” means a weapon that is

designed “to expel a projectile.” U.S. S ENTENCING G UIDELINES § 1B1.1 cmt.

n.1(G). The term “[d]angerous weapon” encompasses “an object that is not an

instrument capable of inflicting death or serious bodily injury but (I) closely

resembles such an instrument; or (II) the defendant used the object in a manner that

created the impression that the object was such an instrument . . . .” Id. at § 1B1.1

cmt. n.1(D)(ii).

       The evidence presented during sentencing included: (1) testimony from the

bank teller that the object Rivera held during the robbery appeared to be a real gun

and that Rivera, an employee of the bank, previously boasted of owning a gun; (2)



                                             3
testimony from the investigating officer that Rivera’s co-defendant asserted that

the gun was real and that Rivera stated, en route to the robbery, that he hoped to be

able to shoot a particular bank employee; and (3) recent receipts documenting

Rivera’s purchases from a hunting/fishing shop with a shooting range. Given this

evidence, Rivera has failed to meet his burden and to establish that the district

court clearly erred by finding that Rivera possessed an actual firearm during the

robbery.

                 II. Otherwise use versus brandished or possessed

       Rivera next contends that the district court erred in concluding that his

conduct constituted “otherwise us[ing]” a firearm as opposed to “brandish[ing]” a

firearm. U.S. S ENTENCING G UIDELINES § 1B1.1 cmt. n.1(C), (I). Our review is de

novo. See United States v. Cover, 199 F.3d 1270, 1278 (11th Cir. 2000) (per

curiam).

       In calculating a defendant’s robbery offense level, Guidelines § 2B3.1(b)(2)

provides, inter alia, that:

              (B) if a firearm was otherwise used, increase by 6 levels;
              (C) if a firearm was brandished or possessed, increase by
              5 levels;
              (D) if a dangerous weapon was otherwise used, increase
              by 4 levels;
              (E) if a dangerous weapon was brandished or possessed,
              increase by 3 levels . . . .



                                           4
U.S. S ENTENCING G UIDELINES § 2B3.1(b)(2)(B)-(E). The Guidelines provide that

“otherwise used” means that “the conduct did not amount to the discharge of a

firearm but was more than brandishing, displaying, or possessing a firearm or other

dangerous weapon.” U.S. S ENTENCING G UIDELINES § 1B1.1 cmt. n.1(I).

“Brandished” means “that all or part of the weapon was displayed, or the presence

of the weapon was otherwise made known to another person, in order to intimidate

that person, regardless of whether the weapon was directly visible to that person.”

Id. at § 1B1.1 cmt. n.1(C). We have held that “the use of a firearm to make an

explicit or implicit threat against a specific person constitutes ‘otherwise use’ of

the firearm.” Cover, 199 F.3d at 1278.

      The evidence showed that Rivera pointed his gun at the bank teller while

instructing her to get the keys to the bank’s vault and escorting her to the vault

area. Accordingly, Rivera did more than make the presence of his gun known to

the teller – he used it to obtain her compliance with his requests. The district court

correctly concluded that Rivera used the gun to implicitly threaten the teller, and it

properly increased his offense level for his “otherwise use[]” of a firearm.

                               III. Standard of Proof

      Lastly, Rivera contends that the district court applied the incorrect standard

of proof. Because Rivera did not raise this issue before the district court, we



                                           5
review it only for plain error. See United States v. Martinez, 407 F.3d 1170, 1173

(11th Cir. 2005).

      Pursuant to Apprendi v. New Jersey, facts that would increase a crime’s

penalty beyond the statutory maximum must be found by a jury beyond a

reasonable doubt. 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000).

Post-Apprendi, the Supreme Court held, in United States v. Booker, 543 U.S. 220,

232-44, 125 S. Ct. 738, 749-56 (2005), that “the Sixth Amendment right to trial by

jury is violated where under a mandatory guidelines system a sentence is increased

because of an enhancement based on facts found by the judge that were neither

admitted by the defendant nor found by the jury.” United States v. Smith, 480 F.3d

1277, 1281 (11th Cir. 2007) (citation omitted). We have held that “[w]hen the

district court applies the Guidelines in an advisory manner, nothing in Booker

prohibits district courts from making, under a preponderance-of-the-evidence

standard, additional factual findings that go beyond a defendant’s admissions.” Id.

“Moreover, the district court’s factual findings for purposes of sentencing may be

based on, among other things, . . . evidence presented during the sentencing

hearing.” Id. (quotation marks, alteration, and citation omitted).

      As Rivera acknowledges, his argument is foreclosed by precedent because

his 60-month sentence was less than the statutory maximum, and the district court



                                          6
applied the Guidelines in an advisory manner. Accordingly, there was no Apprendi

or Booker error.

                                 IV. Conclusion

      Upon review of the record and consideration of the parties’ briefs, we

affirm.

      AFFIRMED.




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