                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 05-3709
UNITED STATES OF AMERICA,
                                             Plaintiff-Appellee,
                               v.

ANDRE D. BENNETT,
                                         Defendant-Appellant.
                        ____________
           Appeal from the United States District Court
                for the Southern District of Illinois.
          No. 05 CR 30061—Michael J. Reagan, Judge.
                        ____________
  ARGUED FEBRUARY 14, 2006—DECIDED AUGUST 29, 2006
                   ____________


  Before BAUER, RIPPLE, and WILLIAMS, Circuit Judges.
   BAUER, Circuit Judge. On March 23, 2005, Andre
Bennett was charged with being a felon in possession of
a firearm, in violation of 18 U.S.C. § 922(g)(1). The charges
stem from a fight Bennett was involved in on November 26,
2004. Bennett entered a plea of guilty to the one-count
indictment on May 18, 2005. The government and Bennett
signed a stipulation of facts regarding the incident. The
stipulation recounts that on November 27, 2004, at approxi-
mately 1:15 a.m., East St. Louis police officers placed
Bennett under arrest for aggravated battery. On that date,
when asked by East St. Louis Police Officer Dennis Butler
if he possessed any weapons, Bennett said that he had a
weapon in the waistband of his jogging suit. Officer Butler
2                                               No. 05-3709

removed a Glock, Model 22, .40 caliber semiautomatic pistol
from Bennett’s waistband. Bennett also stipulated that he
had previously been convicted of a felony offense and that
he knew as a convicted felon he could not possess a firearm.
   Bennett’s sentencing hearing took place on September 2,
2005. The government offered evidence in support of a four-
level sentencing enhancement under U.S.S.G. § 2K2.1(b)(5)
and called three witnesses to offer testimony regarding
what occurred on November 26, 2004. The testimony
disclosed that on November 26, Bennett and his friend,
Brandon Foster, confronted Dwayne Adams as Adams was
walking his two pit bulls. At the hearing Adams, Foster,
and Chris Davis, who was walking with Adams, all testi-
fied. According to Adams, he and Davis were walking the
pit bulls when Foster approached and provoked a fist fight
because Foster believed Adams had called him a snitch. As
the fight between Adams and Foster progressed, Bennett
got out of the car that he and Foster arrived in, pulled a
gun on Adams, and stopped the fight. Adams testified that
Bennett pointed the gun to his face and told Adams he was
going to shoot him. After pleading with Bennett not to
shoot, Adams then pushed the gun away from his face.
Foster and Adams started arguing again and, according to
Adams, Bennett hit him across the face with the pistol.
Adams fell to the ground. Bennett and Foster then kicked
him several times.
  After the assault, Adams went to the emergency room. As
a result of the assault, Adams’s eye was severely swollen to
the point where he could not see out of it. At the time of the
hearing, that same eye was blurry and he saw spots.
According to a doctor at the Anheuser-Busch Eye Institute,
there is a chance he might become blind in that eye. He also
suffered sharp pains in his back and arms, and his sides,
chest, and ribs were bruised and swollen. Adams’s appear-
ance in the district court was procured by way of subpoena,
and he testified that if he had not been served with a
No. 05-3709                                                   3

subpoena he would not have attended the sentencing
hearing.
  The court admitted into evidence Adams’s records from
Touchette Regional Hospital. Included in the records was a
nurse’s report, taken at 5:25 p.m. on November 26, 2004. In
the report, Adams explained that he had been assaulted a
half an hour before arriving in the emergency room and
that he had been kicked in the face. He complained of pain
and swelling to his right eye, nose, and upper lip. Another
record generated about ten minutes later stated that Adams
complained of getting jumped on, kicked in the face, and hit
with a pistol. Swelling was noted on Adams’s left eye, and
a contusion was observed on his face. The CT Scan revealed
a fracture at the base of his nasal bone and his right eye
was swollen shut with extensive abrasions and a diffuse
subcontusional hemorrhage. The primary diagnosis was of
blunt trauma to the right side of Adams’s face with a
secondary diagnosis of a fractured nasal bone. Adams was
referred to an ophthalmologist at the Anheuser-Busch Eye
Institute for follow-up.
  The next witness to testify was Chris Davis, who was
with Adams on November 26, 2004. Davis testified that he
and Adams had been walking the dogs before Foster started
fighting with Adams. Davis explained that when the fight
began, Adams had let go of the dogs and Davis tried to pick
up the leashes. As he turned to go after the dogs, Davis
heard clicking and what seemed like a gun charging a
round of ammunition. He also heard someone say “don’t
shoot him, don’t shoot him” but Davis did not know who it
was because he had turned to go after the dogs. Davis
admitted it could have been anyone with the gun because
he did not see who had it. He also said that the area where
the fight took place is very busy and has a lot of foot traffic.
  Next, Brandon Foster testified that on November 26,
2004, he, Bennett, and two other individuals were driving
4                                                    No. 05-3709

in East St. Louis when he saw Adams and Davis walking
two dogs. Foster asked Bennett to stop the car and Foster
got out, walked up to Adams, and asked Adams if he had
been telling other people that Foster was a snitch. Foster
then admitted that he hit Adams, which caused Adams to
fall to the ground. At that point, Foster said, Bennett got
out of the car with a gun in his hand and told Davis to
pull the dogs back or Bennett would shoot them. Then,
Foster heard a hammer on a gun “jack back,” or load. Foster
testified that Bennett then pointed the gun at Adams and
Foster told Bennett “don’t shoot.” Foster said he then stood
in between Bennett and Adams just in case the gun was
fired. According to Foster, Bennett then put the gun away
in his pocket, kicked Adams in the eye, and both Foster and
Bennett left. The government showed Foster a photograph
of the firearm, which had been entered into evidence, and
Foster said it resembled the weapon Bennett had in his
hand when he was fighting Adams.1 Foster also said that he
was only present at the sentencing hearing because he had
been served with a subpoena.
  In arriving at his findings, Judge Reagan explained
that he did not know if it mattered whether Bennett struck
Adams with the gun. As Judge Reagan understood the case,
once Bennett pointed the gun at Adams, the crime was
aggravated assault; if Bennett struck Adams with the gun,
then the crime was aggravated battery. At that time, all
parties and the Judge were under the mistaken impression
that aggravated assault was a felony under Illinois law. As
a result, Judge Reagan specifically declined to make a
finding as to whether Bennett struck Adams with the gun.
Instead, based on the testimony of Foster and Adams, he
concluded that Bennett pointed a gun at Adams and that


1
  Bennett later stipulated that the weapon shown in the photo-
graph was the firearm that was in his possession at the time of his
arrest.
No. 05-3709                                                  5

such conduct was aggravated assault, and thus a felony for
which the enhancement could be applied. Under U.S.S.G.
§ 2K2.1(b)(5), if a defendant uses or possesses any firearm
or ammunition in connection with another felony offense,
the sentence can be increased by four levels.
  The district court agreed with the recommendation of the
Presentence Investigation Report that a four-level enhance-
ment should be applied for the use of a firearm in connec-
tion with another felony. With a four-point enhancement
and a three-level reduction for acceptance of responsibility,
the district court calculated Bennett’s offense level to be 21,
with a criminal history of Category IV. This translated into
a sentencing range of 57-71 months. Without the enhance-
ment, the sentencing range would have been 41-51 months.
The district court sentenced Bennett at the high end of the
enhanced range, to 71 months’ imprisonment and three
years’ supervised release. Bennett filed a timely notice of
appeal.
  Bennett argues that the district court erred in making the
factual determination that his conduct during the fight with
Adams triggered the four-level sentencing enhancement
under U.S.S.G. § 2K2.1(b)(5). Specifically, Bennett contends
that the testimony given at the sentencing hearing by the
three witnesses was inconsistent and unreliable. In this
analysis, we also address whether Bennett’s sentencing
enhancement can be affirmed given the district judge’s and
the parties’ mistaken belief that aggravated assault was a
felony offense in Illinois. Bennett did not raise this issue in
the lower court nor in his opening brief. Instead, the
government pointed out the error in its brief.
  In the post-Booker era, this Court continues to review the
district court’s application of the Sentencing Guidelines de
novo and its factual findings for clear error. United States
v. Bothun, 424 F.3d 582, 586 (7th Cir. 2005). The factual
findings of the district court will not be overturned unless
6                                                 No. 05-3709

the reviewing court is left with the definite and firm
conviction that a mistake has been made. United States v.
Corral, 324 F.3d 866, 870 (7th Cir. 2003).
  Bennett contends that the district judge clearly erred
in finding that Bennett pointed a firearm at another
individual. Specifically, Bennett takes issue with Judge
Reagan’s finding that the eyewitness testimony was
reliable. Bennett argues that, at one point, eyewitness
Foster testified that Bennett pointed the gun at the dogs.
Later in the testimony, Foster stated that Bennett pointed
the gun at Adams. Because, in Bennett’s opinion, this
proves Foster’s testimony was internally inconsistent, he
contends the court should have disregarded both the
testimony of Adams and Foster. Bennett argues that
without corroboration, Adams’s testimony is plainly unreli-
able.
  What Bennett does not acknowledge, however, is that
as the factfinder, the district court’s credibility deter-
minations are given great deference and they “cannot be
challenged on appeal unless the court credited testimony
that was essentially unbelievable as a matter of law.”
United States v. Smith, 308 F.3d 726, 746 (7th Cir. 2002)
(citing United States v. Ray, 238 F.3d 828, 834 (7th Cir.
2001). Where there may be a conflict in testimony re-
ceived by the district court, its ultimate findings of fact will
not be set aside by this Court unless those findings
are clearly erroneous. Amadeo v. Zant, 486 U.S. 214, 227-28
(1988). Sentencing judges are capable of considering
the motivations of witnesses, weighing conflicting evidence,
and are much more capable than this Court to make
credibility determinations. See United States v. Johnson,
227 F.3d 807, 813 (7th Cir. 2000).
  Judge Reagan took into account all the testimony and
evidence presented at the sentencing hearing. In review-
ing the record, this Court finds that he did not commit clear
No. 05-3709                                                  7

error in crediting Foster’s testimony or Adams’s testimony.
When read in whole, Foster’s testimony does not appear to
be inconsistent: When Bennett first got out of the car he
pointed the gun at the dogs and as the fight escalated he
pointed the gun at Adams. Given the record and the duty of
a sentencing judge to weigh the testimony and evidence, we
find that Judge Reagan did not clearly err in crediting the
testimony at sentencing.
  Since the defendant did not raise the issue below that the
court was mistaken in finding that aggravated assault was
a felony, nor was it raised in his opening brief to this Court,
we are confined to plain error review. United States v.
Wilson, 437 F.3d 616, 621 (7th Cir. 2006). The district judge
erred in finding that aggravated assault supported a four-
level sentencing enhancement under U.S.S.G. § 2K2.1(b)(5).
Aggravated assault in Illinois is only a Class A misde-
meanor with a possible term of imprisonment that is less
than one year. 720 ILCS 5/12-2 (a)(1), (b) (West 2002); 730
ILCS 5/5-8-3 (a)(1) (West 2002). While there may be
alternate grounds for affirming the district court’s applica-
tion of the U.S.S.G. § 2K2.1(b)(5) enhancement, the district
judge did not reach a finding on any of these alternate
grounds. We find that the district judge did plainly err
when he enhanced Bennett’s sentence based on misde-
meanor conduct. The case is REMANDED for resentencing on
the facts consistent with the opinions herein expressed.
8                                         No. 05-3709

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—8-29-06
