                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               April 24, 2008
                              No. 07-12623                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                     D. C. Docket No. 06-60353-CR-JIC

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

WOODY SENAT,

                                                          Defendant-Appellant.


                        ________________________

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

                               (April 24, 2008)

Before ANDERSON, BARKETT and HULL, Circuit Judges.

PER CURIAM:

     Woody Senat appeals his 115-month sentence for possession of a firearm by
a felon, in violation of 18 U.S.C. § 922(g)(1). When Senat was arrested on this

charge, a search of his car revealed a 9 mm pistol loaded with 17 rounds of

ammunition in a hidden, cut-out compartment in the back seat. Senat was

acquitted of a second charge which arose out of a traffic stop in which two

shotguns were found in the trunk of Senat’s car. At sentencing, the district court

applied a two-level increase for an offense involving three to seven firearms,

despite Senat’s acquittal on the charge pertaining to the two shotguns. The court

also applied a two-level increase for an offense involving a stolen firearm.

      On appeal, Senat first argues that the district court’s application of the

enhancement for the number of firearms was erroneous because the district court

did not explicitly find, and the government did not prove, by a preponderance of

the evidence, that he possessed two of the three firearms, and, even assuming that

the government proved possession of the shotguns, that possession was acquitted

conduct that was not relevant to the offense of conviction. Second, Senat argues

that the district court erroneously applied an increase based on the unsupported

finding that the firearm was stolen. He notes that, while the government stated, at

a bench conference during the trial, that both the shotguns and the pistol were

stolen, it never presented any evidence to support the claim, even after he objected

at sentencing on the basis of lack of proof at trial. The government concedes error



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on this issue.

                                           I.

       We review a district court’s factual findings for clear error and its

application of the guidelines to those facts de novo. United States v. Kinard,

472 F.3d 1294, 1297 n.3 (11th Cir. 2006). Specific offense characteristic

§ 2K2.1(b)(1)(A) requires a two-level increase for an offense involving between

three and seven firearms. U.S.S.G. § 2K2.1(b)(1)(A). Once a defendant

challenges a presentence investigation report (“PSI”) statement, the government

bears the burden of proving the statement by a preponderance of the evidence, and,

if used in guideline calculations, the district court must make an explicit factual

finding as to the allegation. United States v. Lawrence, 47 F.3d 1559, 1566-67

(11th Cir. 1995).

       In considering relevant conduct, the court must consider, inter alia, “all acts

and omissions committed . . . or willfully caused by the defendant . . . that occurred

during the commission of the offense of conviction, in preparation for that offense,

or in the course of attempting to avoid detection or responsibility for that offense.”

U.S.S.G. § 1B1.3(a)(1)(A). The commentary to § 1B1.3 states that offenses may:

       qualify as part of the same course of conduct if they are sufficiently
       connected or related to each other as to warrant the conclusion that
       they are part of a single episode, spree, or ongoing series of offenses.
       Factors that are appropriate to the determinations of whether offenses

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      are sufficiently connected or related to each other to be considered as
      part of the same course of conduct include the degree of similarity of
      the offenses, the regularity (repetitions) of the offenses, and the time
      interval between the offenses. When one of the above factors is
      absent, a stronger presence of at least one of the other factors is
      required.

Id. cmt. (n.9(B)). We broadly interpret the provisions of the relevant conduct

guideline. United States v. Behr, 93 F.3d 764, 765 (11th Cir. 1996). In

determining relevant conduct, the district court may consider both uncharged and

acquitted conduct. United States v. Hamaker, 455 F.3d 1316, 1336 (11th Cir.

2006). Under our precedent, “nothing in Booker1 prohibits the courts from

considering relevant conduct when the Sentencing Guidelines are applied as

advisory.” United States v. Faust, 456 F.3d 1342, 1348 (11th Cir. 2006).

      Upon review of the record, and upon consideration of the briefs, we discern

no reversible error as to this issue. Despite the fact that Senat was acquitted of the

count charging him with possession of two shotguns, because he was convicted of

possessing a pistol, and a preponderance of the evidence supported the finding that

he possessed the shotguns, we affirm the district court’s application of a two-level

increase for possessing three to seven firearms.

                                               II.

      We review a district court’s application of the guidelines to the facts de

      1
          United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

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novo. Kinard, 472 F.3d at 1297 n.3. “[O]nce the court of appeals has decided that

the district court misapplied the Guidelines, a remand is appropriate unless the

reviewing court concludes, on the record as a whole, that the error was harmless,

i.e., that the error did not affect the district court’s selection of the sentence

imposed.” Williams v. United States, 503 U.S. 193, 203-04, 112 S.Ct. 1112, 1120-

21, 117 L.Ed.2d 341 (1192).

       As the government concedes, the district court improperly applied a two-

level enhancement based on the assumption, without any evidence presented by the

government, that the pistol was stolen, we vacate Senat’s sentence and remand for

resentencing without this enhancement.

       AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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