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                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 19-10511
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 4:17-cr-00050-LGW-CLR-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

JOSHUA SCOTT,
VICTOR NATSON,
a.k.a Silverback,

                                              Defendants-Appellants.


                       ________________________

               Appeals from the United States District Court
                   for the Southern District of Georgia
                      ________________________

                            (December 27, 2019)



Before GRANT, TJOFLAT and BLACK, Circuit Judges.

PER CURIAM:
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      Joshua Scott and Victor Natson were charged with one count of conspiracy

to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count 1); two

counts of aiding and abetting Hobbs Act robbery, in violation of 18 U.S.C.

§§ 1951(a) & 2 (Counts 2 and 5); and two counts of aiding and abetting the use and

carry of a firearm during and in relation to a crime of violence, in violation of 18

U.S.C. §§ 924(c) & 2 (Counts 3 and 6). After a jury trial, the jury found Scott

guilty of Counts 1, 5, and 6, and Natson guilty as charged. Scott appeals his 180-

month sentence, asserting (1) the district court violated his Sixth Amendment

rights by using acquitted conduct and a codefendant’s testimony at trial, which he

contends the jury rejected, to calculate his Guidelines range; and (2) the district

court erred in denying his request for an acceptance of responsibility reduction to

his Guidelines calculation. Meanwhile, Natson contends the evidence was

insufficient to sustain his § 924(c) convictions because the Government did not

show he knew, in advance, his coconspirators would be using and carrying

firearms during two separate robberies. After review, we affirm Scott’s sentence

and Natson’s convictions.




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                                      I. SCOTT

A. Sixth Amendment

      “We review a district court’s legal conclusions regarding the Sentencing

Guidelines de novo, and its factual findings for clear error.” United States v.

Cruz, 713 F.3d 600, 605 (11th Cir. 2013). The Sixth Amendment guarantees the

right to a trial by a jury for criminal defendants. U.S. Const. amend. VI.

      Scott’s arguments the district court violated the Sixth Amendment by

considering acquitted conduct for purposes of sentencing him lack merit. As an

initial matter, the district court stated it would have imposed the same sentence

based only on the conduct for which Scott was convicted. To the extent the district

court considered the acquitted conduct, Scott acknowledges this Court has rejected

the argument that acquitted conduct may not be used for sentencing purposes.

Acquitted conduct may be considered at sentencing if it is proven by a

preponderance of the evidence, as long as it does not increase the mandatory

minimum or statutory maximum penalty. See United States v. Charles, 757 F.3d

1222, 1225-26 (11th Cir. 2014) (stating under an advisory Guidelines scheme, a

“district court may continue to make guidelines calculations based upon judicial

fact findings and may enhance a sentence—so long as its findings do not increase

the statutory maximum or minimum authorized by facts determined in a guilty plea

or jury verdict”). The district court’s use of acquitted conduct in this case did not


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increase the mandatory minimum or the statutory maximum, as there was no

mandatory minimum as to Counts 1 and 5 and he faced a maximum possible

sentence of 20 years for each of those counts. 18 U.S.C. § 1951(a). For Count 6,

his mandatory minimum was 7 years’ imprisonment with a statutory maximum of

life imprisonment. Instead, the acquitted conduct only served to increase Scott’s

Guidelines range, which still fell within the statutory maximum possible sentence.

      Furthermore, the district court’s crediting of Gregory Plair’s testimony to

establish the acquitted conduct does not violate the Sixth Amendment because:

(1) it was within the province of the district court to credit Plair’s testimony for

sentencing purposes; and (2) the district court was not limited as to what it could

consider following a jury trial for sentencing purposes. See 18 U.S.C. § 3661 (“No

limitation shall be placed on the information concerning the background, character,

and conduct of a person convicted of an offense which a court of the United States

may receive and consider for the purpose of imposing an appropriate sentence.”);

United States v. Watts, 117 U.S. 148, 157 (1997) (holding “a jury's verdict of

acquittal does not prevent the sentencing court from considering conduct

underlying the acquitted charge, so long as that conduct has been proved by a

preponderance of the evidence”) Moreover, Plair testified in Scott’s own trial, so

Scott had a full opportunity to rebut the evidence or generally to cast doubt upon

its reliability then, and again at sentencing, so no due process violation occurred.


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See United States v. Castellanos, 904 F.2d 1490, 1495-96 (11th Cir. 1990)

(explaining while evidence and testimony presented at another trial may not be

used in a defendant’s sentencing hearing if the defendant did not have the

opportunity to rebut the evidence or generally to cast doubt upon its reliability,

providing such an opportunity permits a court—under the Fifth Amendment’s Due

Process Clause—to consider that information at sentencing). Accordingly, because

Scott does not otherwise argue the Government failed to prove his acquitted

conduct by a preponderance of the evidence, we affirm his sentence in this respect.

B. Acceptance of Responsibility

      When a defendant challenges the application of an enhancement under the

Sentencing Guidelines, we review a district court’s factual findings for clear error

and its interpretation of the Sentencing Guidelines de novo. United States v. Perez,

366 F.3d 1178, 1181 (11th Cir. 2004). Under § 3E1.1(a), a defendant is eligible

for a two-level reduction to his offense level if he “clearly demonstrates acceptance

of responsibility for his offense.” U.S.S.G. § 3E1.1(a). In determining whether a

defendant qualifies for an acceptance of responsibility reduction, the commentary

provides the following non-exhaustive list of considerations:

      (A)    truthfully admitting the conduct comprising the offense(s) of
             conviction, and truthfully admitting or not falsely denying any
             additional relevant conduct for which the defendant is
             accountable under § 1B1.3 . . .;



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      (B)    voluntary termination or withdrawal from criminal conduct or
             associations;

      (C)    voluntary payment of restitution prior to adjudication of guilt;

      (D)    voluntary surrender to authorities promptly after commission of
             the offense;

      (E)    voluntary assistance to authorities in the recovery of fruits and
             instrumentalities of the offense;

      (F)    voluntary resignation from the office or position held during the
             commission of the offense;

      (G)    post-offense rehabilitative efforts (e.g., counseling or drug
             treatment); and

      (H)    the timeliness of the defendant’s conduct in manifesting the
             acceptance of responsibility.

U.S.S.G. § 3E1.1, comment (n.1). The commentary explains the adjustment “is

not intended to apply to a defendant who puts the government to its burden of

proof at trial by denying the essential factual elements of guilt, is convicted, and

only then admits guilt and expresses remorse.” Id., comment (n.2). However, a

conviction at trial does not preclude the application of the adjustment, but rather,

only in rare situations a defendant may clearly demonstrate acceptance of

responsibility for his criminal conduct even though he exercised his constitutional

right to trial. Id. The commentary explains that this may occur, for example,

“where a defendant goes to trial to assert and preserve issues that do not relate to




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factual guilt,” such as “to make a constitutional challenge to a statute or a

challenge to the applicability of a statute to his conduct.” Id.

      Applying the factors set forth above, Scott did not show he accepted

responsibility under § 3E1.1(a). Specifically, he did not admit to all of the conduct

comprising the offenses of conviction, he did not assist the authorities in any

manner, he did not pay restitution prior to trial, and he did not voluntarily

terminate or withdraw from criminal conduct. Instead, Scott put the Government

to its burden of proving his criminal conduct at trial. Even if Scott originally

planned to plead guilty to, and later admitted at trial through counsel in opening

statements that he was present for, the January 30, 2017 robbery, he did not

otherwise plead guilty to, nor did he admit that he was engaged in the other

charges the Government had to prove at trial and of which the jury convicted

him—a conspiracy to commit robberies on October 14, 2016 and January 30, 2017,

and aiding and abetting the use and carry of a firearm during a crime of violence.

Furthermore, he did not go to trial in order to preserve a constitutional challenge to

the statutes he was charged under or to challenge the applicability of the statutes to

his conduct, or something similar. Accordingly, the district court did not err in

refusing to reduce Scott’s offense level for accepting responsibility, and we affirm

his sentence in this respect as well.

      Accordingly, we affirm Scott’s 180-month sentence.


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                                    II. NATSON

      When reviewing a sufficiency of the evidence challenge, we “consider the

evidence in the light most favorable to the Government, drawing all reasonable

inferences and credibility choices in the Government’s favor.” United States v.

Friske, 640 F.3d 1288, 1290-91 (11th Cir. 2011) (quotations omitted). We will not

overturn a jury’s verdict “if any reasonable construction of the evidence would

have allowed the jury to find the defendant guilty beyond a reasonable doubt.” Id.

at 1291 (quotations omitted).

       “[A]ny person who, during and in relation to any crime of violence . . . uses

or caries a firearm, or who, in furtherance of any such crime, possess a firearm,

shall, in addition to the punishment provided for such crime of violence . . . , be

sentenced” to a term of imprisonment of (1) not less than 7 years, if the firearm is

brandished, or (2) not less than 10 years if the firearm is discharged. 18 U.S.C.

§ 924(c)(1)(A)(ii)-(iii). Hobbs Act robbery is a “crime of violence” under

§ 924(c). 18 U.S.C. § 924(c)(3)(A); see In re Saint Fleur, 824 F.3d 1337, 1340-41

(11th Cir. 2016); United States v. St. Hubert, 909 F.3d 335, 348 (11th Cir. 2018).

      In order for the government to sustain a conviction for aiding and abetting a

§ 924(c) offense, it must establish that the defendant either facilitated the

underlying predicate offense—i.e., a drug trafficking crime or crime of violence—

or the firearm use “or of course both.” Rosemond v. United States, 572 U.S. 65, 74


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(2014). It is “inconsequential” if the defendant’s acts “did not advance each

element of the offense; all that matters is that [he] facilitated one component.” Id.

at 74-75. The government must also establish the defendant’s intent, which, in the

context of aiding and abetting a § 924(c) offense, requires the government to show

the defendant knew that one of his confederates would be carrying a gun. Id. at 77.

This knowledge must be advanced knowledge, meaning knowledge beforehand

that “enables him to make the relevant legal (and indeed, moral) choice,” by

choosing “to alter that plan or, if unsuccessful, withdraw from the enterprise.” Id.

at 78. Thus, if an accomplice knows nothing of a gun until it appears at the scene,

it may be too late for him to quit the crime, and when that is the case, the

government has not shown the requisite intent to assist a crime involving a gun.

Id.

      Although we generally review the sufficiency of the evidence de novo,

United States v. Diaz, 248 F.3d 1065, 1084 (11th Cir. 2001), where the defendant

failed to seek a judgment of acquittal on a specific ground in the district court we

review for plain error only, see United States v. Hunerlach, 197 F.3d 1059, 1068

(11th Cir. 1999). At trial, Natson argued, with respect to his § 924(c) charges, that

although he may have known that a firearm would be used, he could not be

convicted as an aider or an abettor merely because he knew a firearm would be

used or carried, as there had to be proof that he performed some act that directly


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facilitated or encouraged the use of or the carrying of a firearm. He contends on

appeal, however, that the Government failed to prove beyond a reasonable doubt

that he had advanced knowledge that a firearm would be used. Natson’s

arguments are different, and thus, plain error review applies.

      The Government presented sufficient evidence of Natson’s advance

knowledge that a firearm would be used in furtherance of a crime of violence, so

no error occurred—let alone plain error. At trial, Plair testified that Natson

described to him the characteristics and mannerisms of the people he would be

dealing with and explained to him that “if [he] just applied a little pressure . . . they

would cooperate.” By pressure, Plair testified that Natson meant using a gun and

he talked to Natson about using a gun. Plair stated that Natson never said they

were not allowed to use guns, and when Natson dropped him and Scott off for the

first robbery, they were armed and Scott knew they were armed. Plair and Scott

used firearms for the October 14 robbery, and Scott discharged his. Plair testified

that, for the January 30 attempted robbery, although he and Scott did not have a

“verbatim” conversation about being armed, everything was supposed to be the

same. Therefore, on that day he carried a Glock 20 and Scott carried a revolver,

which they brandished while attempting to commit the robbery. A jury reviewing

this evidence could reasonably infer that Natson had advance knowledge regarding




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the use of firearms for both the October 14 and January 30 robberies based on his

help planning the two robberies.

      Moreover, Natson’s arguments that Plair’s testimony was uncorroborated

and that he did not procure any firearms lack merit. This is because we do not

reweigh the credibility of a witness’s testimony unless it pertains to facts that the

witness physically could not have possibly observed or events that could not have

occurred under the laws of nature. See United States v. Isaacson, 752 F.3d 1291,

1304 (11th Cir. 2014) (stating this Court will not upset a jury’s decision to credit a

witness’s testimony unless in the rare circumstance that the testimony is incredible

as a matter of law). Plair’s conversations with Natson were certainly observable

by him and could not have violated the laws of nature. See id. Additionally,

Natson did not have to procure the firearms for the Government to have proved

that he aided and abetted a § 924(c) offense, but only that he either facilitated the

underlying predicate offense—Hobbs Act robbery—or the firearm use. See

Rosemond, 572 U.S. at 74-75. Natson does not dispute on appeal that he helped

facilitate the robberies. Accordingly, we affirm Natson’s convictions.

      AFFIRMED.




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