            Case: 16-11306     Date Filed: 07/27/2017   Page: 1 of 5


                                                                        [PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 16-11306
                         ________________________

                 D.C. Docket No. 2:15-cr-00075-SPC-MRM-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

CHRISTOPHER JAMES GILL,

                                                             Defendant-Appellant.

                         ________________________

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

                                 (July 27, 2017)

Before ED CARNES, Chief Judge, WILLIAM PRYOR, and DUBINA, Circuit
Judges.

PER CURIAM:

     Christopher Gill pleaded guilty to possession of a firearm by a felon, 18
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U.S.C. § 922(g)(1), and was sentenced to 80 months in prison followed by three

years supervised release. That sentence was within his guidelines range. He

contends that the district court erred in calculating his guidelines range because,

according to Gill, the government failed to show that his possession of one of the

eight firearms he possessed was unlawful.

      Section 2K2.1(b)(1)(B) of the United States Sentencing Guidelines directs

district courts to increase by four levels the offense level of a defendant convicted

of unlawful possession of a firearm if the offense involved eight to twenty-four

firearms. If the offense involved three to seven firearms, the district court is to

increase the offense level by only two levels. U.S.S.G. § 2K2.1(b)(1)(A). A two-

level enhancement instead of a four-level one would have lowered Gill’s

guidelines range. As to whether a firearm is to be counted for enhancement

purposes, one of the application notes to § 2K2.1 explains that the district court

should “count only those firearms that were unlawfully sought to be obtained,

unlawfully possessed, or unlawfully distributed . . . .” Id. § 2K2.1 cmt. n.5.

      When the police searched Gill’s home in April 2015, they found eight

firearms. He does not dispute that the government proved that his possession was

unlawful as to seven of the firearms, but he does contend that it failed to prove the

unlawfulness of the eighth one. Gill argues that the government failed to show

unlawfulness as to that firearm because it was manufactured in Florida and there


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was no evidence that it had moved in interstate or foreign commerce. His position

is that a firearm must have a nexus with interstate or foreign commerce in order for

possession of it by a felon to be unlawful under 18 U.S.C. § 922(g). That is true,

but by its terms application note 5 to § 2K2.1 requires only that Gill’s possession

of each pistol be “unlawful,” not that it be unlawful under federal law. We agree

with the Seventh Circuit that a firearm may be counted under § 2K2.1(b)(1) if state

law prohibited the defendant from possessing it, even if federal law did not. See

United States v. Jones, 635 F.3d 909, 919–20 (7th Cir. 2011); cf. United States v.

Griffith, 584 F.3d 1004, 1013 (10th Cir. 2009) (agreeing with four other circuits

that conduct can be counted as relevant conduct under the sentencing guidelines if

it is criminalized by state law). A firearm that is illegal only under state law does

not count for § 922(g) purposes, but it does count for sentencing purposes.

      Florida law clearly prohibited Gill from possessing the eighth firearm

(which was a Intratec pistol manufactured in Florida). Fla. Stat. § 790.23(1)

(prohibiting any person convicted of a felony to “own or to have in his or her care,

custody, possession, or control any firearm”) (emphasis added). While it is true

that the government did not argue in the district court that Gill’s possession of the

firearm was unlawful under Florida law, we can affirm the district court’s

judgment on any ground supported by the record — even if that ground was not

considered or advanced in the district court. Thomas v. Cooper Lighting, Inc., 506


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F.3d 1361, 1364 (11th Cir. 2007).

      Gill protests that the government was required to prove that he violated

Florida law. But Gill already admitted that he did by failing to object to the factual

assertions in the PSR stating that he had a prior felony conviction and showing that

he possessed eight weapons, including the Intratec pistol. See United States v.

Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005). As a result, everything necessary

to support a determination that Gill’s possession of the Intratec pistol was unlawful

under Florida law was before the district court, except the Florida statute itself.

And the government was not required to prove the contents of Florida law. See

Gardner v. Collector of Customs, 73 U.S. (6 Wall.) 499, 508 (1867) (“The statute

under consideration is a public statute . . . . It is one of which the courts take

judicial notice, without proof . . . .”); Thornton v. United States, 2 F.2d 561, 562

(5th Cir. 1924) (“It was not necessary that the indictment should plead the Georgia

statutes, as it was the duty of the trial court to take judicial notice of them.”). The

presence in the record of evidence showing Gill possessed the eighth firearm

distinguishes this case from United States v. Washington, 714 F.3d 1358 (11th Cir.

2013) and United States v. Campbell, 372 F.3d 1179 (10th Cir. 2004). In those

cases, the factual record on appeal did not support the district court’s decision to

apply an enhancement. Washington, 714 F.3d at 1362–63; Campbell, 372 F.3d. at

1182–83 & n.2. Here it does.


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      On June 15, 2017, Gill filed a letter with the Court purporting to provide us

with supplemental authority. In that letter, Gill belatedly argues that the

government has not shown that his possession of the eighth firearm was unlawful

under Florida law because, under Florida law, the facts alleged in the PSR were not

sufficient to show that he possessed that firearm. We are not persuaded by Gill’s

new argument. There was more that linked Gill to the eighth firearm in this case

than joint custody of the safe in which the gun was found. In the safe with the

firearm in question were drugs that Gill admitted belonged to him, as well as six

other firearms that Gill does not deny he possessed. Those facts distinguish this

case from the Florida authorities cited by Gill in his supplemental letter brief and

support the conclusion that he possessed the eighth firearm.

      AFFIRMED.




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