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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-17258
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 6:16-cr-00107-RBD-TBS-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

JAMES ROMANDO HARRIS, II,

                                                         Defendant-Appellant.

                       ________________________

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

                            (January 11, 2018)

Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.

PER CURIAM:
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       Defendant James Harris appeals his 84-month sentence, imposed after he

pled guilty to possession of a firearm by a convicted felon. He challenges two

four-level enhancements he received at sentencing, one for trafficking of firearms

pursuant to U.S.S.G. § 2K2.1(b)(5), and the other for possessing a firearm in

connection with another felony offense pursuant to U.S.S.G. § 2K2.1(b)(6)(B).

After careful review, we affirm in part and reverse in part and remand for further

proceedings consistent with this opinion.

I.     BACKGROUND

       A.      Facts1

       On May 5, 2016, a confidential informant informed agents with the Bureau

of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) that Kimberly White had

called the informant to tell him that White had “just hit” and had firearms for sale.

ATF Agent Jessica Stith interpreted White’s statement that he had “just hit” to

mean that he had just committed a burglary or robbery. The informant went to

White’s house and observed 10 to 12 firearms that still had merchandise tags on

them. At the direction of ATF agents, the informant later arranged to purchase

three firearms.



1
  These facts are derived from the testimony presented at the sentencing hearing. See United
States v. Polar, 369 F.3d 1248, 1255 (11th Cir. 2004) (“The district court’s factual findings for
purposes of sentencing may be based on, among other things, evidence heard during trial,
undisputed statements in the [PSR], or evidence presented at the sentencing hearing.”).

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      The informant and two undercover officers went to White’s house later that

day. After giving the informant two firearms, White told the undercover officers

that the third firearm was located at Defendant’s residence. He then directed them

to Defendant’s house located down the street.

      Once at the residence, Defendant gave the third firearm to the informant who

then turned it over to the undercover officers. The informant paid White with

money given to him by the undercover officers, and White and Defendant

immediately began dividing the proceeds. Defendant then sold two additional

firearms to the undercover officers. When asked by the undercover officers if he

had any more firearms to sell, Defendant answered in the affirmative. A

subsequent investigation revealed that all five firearms sold by Defendant and

White were reported stolen from Guns N Gold, a federal firearms licensee.

      On May 9, 2016, the informant met again with Defendant to discuss the sale

of additional firearms. Several days later, law enforcement officers executed a

search warrant at Defendant’s residence. The search revealed, among other things,

a black duffle bag containing several rounds of ammunition, a Berretta handgun—

later determined to be stolen from Guns N Gold—and four merchandise tags from

Guns N Gold. Officers also found another bag containing a digital scale and three

baggies filled with marijuana. ATF Agent Stith believed that the quantity of

marijuana found could be used for distribution.


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      B.     Procedural History

      Defendant later pled guilty to being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g). In preparation for sentencing, the probation

officer prepared the Presentence Investigation Report (“PSR”) and assigned

Defendant a base offense level of 14, pursuant to U.S.S.G. § 2K2.1(a)(6).

Defendant received several enhancements, including: (1) a two-level enhancement

under U.S.S.G. § 2K2.1(b)(1)(A) because the offense involved three or more

firearms; (2) a two-level enhancement under § 2K2.1(b)(4)(A) because a firearm

was stolen; (3) a four-level enhancement pursuant to § 2K2.1(b)(5) because

Defendant engaged in trafficking of firearms; and (4) a four-level enhancement

under § 2K2.1(b)(6)(B) because a firearm was used or possessed in connection

with another felony offense. Defendant’s advisory guideline range was 84 to 105

months’ imprisonment based on a total offense level of 23 and a criminal history

category of V. Defendant objected to the four-level enhancements under

§ 2K2.1(b)(5) and § 2K1.2(b)(6)(B).

      At the sentencing hearing, the Government presented testimony from ATF

Agent Stith in support of the sentencing enhancements. Agent Stith testified about

the details of the firearms purchases, as well as the items recovered during the

search of Defendant’s residence. She explained that Guns N Gold was robbed on




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the same day that the firearms purchases took place and that all five firearms sold

by White and Defendant had been reported stolen by Guns N Gold.

      Defendant argued that the trafficking-of-firearms enhancement under

§ 2K2.1(b)(5) was not applicable because there was no evidence establishing that

he knew the informant was a convicted felon and thus could not legally possess a

firearm, or that Defendant had reason to believe that the firearm would be used or

disposed of illegally. As to the § 2K2.1(b)(6)(B) enhancement, Defendant argued

that there was insufficient evidence establishing that he knew the firearms were

connected with another felony offense.

      The district court overruled Defendant’s objections. As to the § 2K2.1(b)(5)

enhancement, the district court agreed that there was insufficient evidence showing

that Defendant knew the informant was prohibited from possessing a gun.

However, the court found that the enhancement applied because the Government

established by a preponderance of the evidence that Defendant knew or had reason

to believe that he was selling a firearm to an individual who intended to use or

dispose of the firearm unlawfully. As to the § 2K2.1(b)(6)(B) enhancement, the

district court found that the Government established by a preponderance of the

evidence that Defendant possessed the firearm in connection with the burglary of

Guns N Gold. The district court sentenced Defendant to 84 months’

imprisonment. This appeal followed.


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II.   DISCUSSION

      We review the district court’s application of the Sentencing Guidelines de

novo and its factual findings for clear error. United States v. Perez-Oliveros, 479

F.3d 779, 783 (11th Cir. 2007). When reviewing for clear error, we will not

disturb a district court’s findings unless we are left with a definite and firm

conviction that a mistake has been committed. United States v. Dimitrovski, 782

F.3d 622, 629 (11th Cir. 2015). The Government has the burden of establishing

the facts necessary to support a sentencing enhancement by a preponderance of the

evidence. United States v. Aguilar-Ibarra, 740 F.3d 587, 592 (11th Cir. 2014).

      A.     Enhancement for possession of a firearm in connection with
             another felony under U.S.S.G. § 2K2.1(b)(6)(B)

      Defendant challenges the enhancement he received under U.S.S.G.

§ 2K2.1(b)(6)(B). Under § 2K2.1(b)(6)(B), a defendant receives a four-level

enhancement if he “used or possessed any firearm or ammunition in connection

with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). The application notes

state that the enhancement applies if the firearm or ammunition “facilitated, or had

the potential of facilitating, another felony offense.” Id. § 2K2.1(b)(6)(B),

comment. (n.14(A)). In the case of a burglary, the enhancement applies if “during

the course of a burglary, [a defendant] finds and takes a firearm, even if the

defendant did not engage in any other conduct with that firearm during the course

of the burglary.” Id. § 2K2.1(b)(6)(B), comment. (n.14(A), (B)).
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      The district court applied the § 2K2.1(b)(6)(B) enhancement after

concluding that the Government established by a preponderance of the evidence

that Defendant possessed a firearm in connection with the burglary of Guns N

Gold. Defendant does not appear to argue that the enhancement would not apply

in cases where a firearm is found or taken during a burglary. Instead, he asserts

that there was insufficient evidence to establish that he had any connection to the

burglary of Guns N Gold. We disagree.

      Based on the evidence presented at the sentencing hearing, the district court

reasonably inferred that Defendant was involved in the burglary. The Guns N

Gold firearms store was robbed at around 4 a.m, and by noon, White had

telephoned the confidential informant to report that he had “just hit” and had some

firearms to sell. A few hours later, the informant, accompanied by undercover

ATF agents, met up with White and Defendant and purchased the guns. The short

time period between the burglary and Defendant’s possession of the guns, by itself,

suggests a connection between him and the burglary. In addition, White had

admitted to the informant that he “just hit,” meaning he had committed a burglary

or robbery, and had some firearms for sale. That, combined with the fact that

White sent the undercover purchasers to visit Defendant to purchase more guns

and the fact that White and Defendant split the money from the sale, is more than

sufficient to show Defendant’s complicity with the man who had admitted to


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stealing the guns. If that were not enough, agents found an additional firearm—

also stolen from Guns N Gold—in a duffle bag, along with several Guns N Gold

merchandise tags in Defendant’s home. In addition, Defendant indicated to the

undercover purchasers that he had more firearms he could sell. Finally, according

to the undisputed facts in the PSR, Defendant and White had previously been

arrested together for burglary-related activity. See United States v. Wade, 458 F.3d

1273, 1277 (11th Cir. 2006) (“It is the law of this circuit that a failure to object to

allegations of fact in a [PSR] admits those facts for sentencing purposes.”).

      Based on these facts, we are not left with the definite and firm conviction

that the district court made a mistake by concluding that Defendant possessed a

firearm in connection with another felony offense—the burglary of Guns N Gold.

Thus, the district court did not err by applying the four-level enhancement under

§ 2K2.1(b)(6)(B). See U.S.S.G. § 2K2.1(b)(6)(B), comment. (n.14(B)) (explaining

that the § 2K2.1(b)(6)(B) enhancement is warranted in a burglary case because

“the presence of a firearm has the potential of facilitating another felony offense”).

      B.     Trafficking-of-firearms enhancement under U.S.S.G
             § 2K2.1(b)(5)

      Defendant argues that the Government failed to establish by a

preponderance of the evidence that he knew or had reason to believe that the

informant and the undercover officers intended to use or dispose of the firearms

illegally. We agree that the Government’s evidence in support of this enhancement
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is much weaker. Section 2K2.1(b)(5) of the Guidelines provides for a four-level

enhancement if the defendant engaged in the trafficking of firearms. U.S.S.G.

§ 2K2.1(b)(5). Trafficking, as defined in this provision of the Guidelines,

however, means more than just selling firearms. This provision applies if, in

relevant part, a defendant “knew or had reason to believe that [transferring a

firearm to another individual] would result in the transport, transfer, or disposal of

a firearm to an individual” who could not possess or receive a firearm or “who

intended to use or dispose of the firearm unlawfully.” Id. § 2K2.1(b)(5), comment.

(n.13(A)). When determining whether a defendant knew his conduct would result

in the transfer of a firearm to someone who intended to dispose of it illegally,

courts look “to the circumstances known to the defendant.” United States v.

Asante, 782 F.3d 639, 644 (11th Cir. 2015).

      It had been the Government’s original theory that Defendant knew that the

informant was a convicted felon and that by selling firearms to him, Defendant had

thereby transferred guns to an individual whom Defendant knew could not lawfully

possess a firearm. The Government, however, never offered any evidence that the

informant was actually a convicted felon nor did it offer evidence that Defendant

knew of the informant’s status. Accordingly, the district court found that the

Government had failed to prove that the enhancement was appropriate based on the

transfer to a prohibited person.


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      That meant that the trafficking enhancement could apply only if Defendant

knew or had reason to believe that the transfer of the firearms was to an individual

who “intended to use or dispose of the firearm unlawfully.” U.S.S.G.

§ 2K2.1(b)(5), comment. (n.13(A)(ii)(II)). The Government, however, never

identified what unlawful use of their newly purchased firearms the confidential

informant or the undercover agents allegedly intended, or more precisely what

illicit use Defendant might believe they would make of the guns. And without

knowing what their purported illicit object might have been, it is difficult to

conclude that the Defendant knew of this object. For this reason, we conclude that

the Government failed to prove that Defendant knew the purchasers intended to

use or transfer the gun illegally, and accordingly imposition of this enhancement

was erroneous.

      Without this trafficking enhancement, the Guidelines’ range would have

been only 57–71 months, not 84–105 months. The district court imposed a

sentence of 84 months, which exceeds the appropriate range. A district court’s

erroneous application of an enhancement warrants reversal unless the court’s error

is harmless, as, for example, if the court has indicated that it would impose the

same sentence regardless of whether the enhancement was applicable. United

States v. Perkins, 787 F.3d 1329, 1341 (11th Cir. 2015). As the district court here

did not indicate that it would impose the same sentence without this enhancement,


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we vacate the sentence and remand for the court to resentence Defendant without

this particular enhancement. 2

III.   CONCLUSION

       For the above reasons, Defendant’s sentence is AFFIRMED in part,

REVERSED in part, and REMANDED for proceedings consistent with this

opinion.




2
  Although Defendant also argues that the district court’s improper application of the firearms
enhancements rendered his sentence substantively unreasonable, an error in calculating the
guideline range is generally a procedural error, not a substantive error. See United States v. Hall,
704 F.3d 1317, 1321 (11th Cir. 2013) (“A sentence is unreasonable if it contains significant
procedural error, such as an improper calculation of the guidelines range.”). But to the extent he
argues that his sentence is substantially unreasonable, we make no determination on that issue
given our remand to the district court.

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