           Case: 14-10478   Date Filed: 04/06/2015    Page: 1 of 8


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-10478
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:13-cr-20230-FAM-1



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

versus

CARLOS FERNANDEZ,

                                               Defendant - Appellant.

                      ________________________

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

                             (April 6, 2015)

Before MARTIN, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Carlos Fernandez appeals his 262-month sentence for possession of a

firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g) & 924(e). Mr.

Fernandez argues that the district court erred when it enhanced his sentence under

U.S.S.G. §§ 2K2.1(b)(6)(B) and 4B1.4(b)(3)(A).         The district court, says Mr.

Fernandez, never found that he possessed a firearm “in connection with another

felony offense,” § 2K2.1(b)(6)(B), or “in connection with . . . a crime of violence,”

§ 4B1.4(b)(3)(A), as required for these enhancements. Mr. Fernandez also asserts

that his Sixth Amendment rights were violated because his prior convictions,

which were used to enhance his sentence, were not submitted to or found by the

jury. After reviewing the record and the parties’ briefs, we affirm.

                                          I

                                          A

      On January 6, 2012, Mr. Fernandez – who had previously been convicted of

several felonies – was working as the assistant manager of an adult entertainment

club in Miami, Florida. That night he grabbed a loaded .40 caliber pistol from the

club manager’s locked safe and fired shots outside the club. Mr. Fernandez

grabbed the pistol after a violent altercation took place outside the club (a group of

men had attempted to enter without paying the entrance and parking fees). Video

taken during the incident showed Mr. Fernandez firing the gun, and bullet casings




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from the club parking lot matched the manager’s .40 caliber gun. A grand jury

charged Mr. Fernandez with being a felon in possession of a firearm.

      At trial, Mr. Fernandez maintained that he acted in self-defense. The district

court instructed the jury that if it found beyond a reasonable doubt that “[Mr.

Fernandez] committed the acts charged in the indictment, . . . [it] must then

consider whether [Mr. Fernandez] should nevertheless be found ‘not guilty’

because his actions were justified by duress or coercion” by “a preponderance of

the evidence.” The jury did not find that Mr. Fernandez acted in self-defense, and

returned a guilty verdict on the felon in possession charge.

                                          B

      As noted, Mr. Fernandez had several prior felony convictions. He was

convicted of aggravated battery in 1992, aggravated battery of a police officer in

1996, and battery on a law enforcement officer in 1997.

      The presentence investigation report set the initial base offense level at 24,

pursuant to U.S.S.G. § 2K2.1(a)(2), because Mr. Fernandez had been convicted of

being a felon in possession of a firearm and had at least two prior felony

convictions for crimes of violence. The report also recommended an additional

four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) because Mr. Fernandez

possessed the firearm “in connection with another felony offense.”




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      The report further recommended that Mr. Fernandez be designated as an

armed career criminal pursuant to 18 U.S.C. § 924(e), which subjects a defendant

convicted of violating § 922(g) to an enhanced sentence if he has at least three

prior convictions for a violent felony. As an armed career criminal, Mr.

Fernandez’s offense level under the advisory Sentencing Guidelines would rise to

34 if he used or possessed the firearm in question in connection with a “crime of

violence.” See U.S.S.G. §4B1.4(b)(3)(A) (“The offense level for an armed career

criminal is . . . 34, if the defendant used or possessed the firearm or ammunition in

connection with . . . a crime of violence.”).

      Mr. Fernandez objected to being designated an armed career criminal

(because his prior convictions had not been submitted to or found by the jury) and

to the proposed enhancements under the Sentencing Guidelines. He argued (1) that

he was only charged with, and convicted of, possession of a firearm, (2) that the

government had failed to prove at trial that he had committed any other offense,

and (3) that the government had failed to prove that his discharge of the firearm

was not in self-defense.

      The district court, at the sentencing hearing, asked the government to

identify the “crime of violence” Mr. Fernandez had committed. The government

explained that Mr. Fernandez’s discharge of the firearm could be aggravated

battery or attempted murder (two of the charges which had been lodged against


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Mr. Fernandez in state court). The district court agreed with the government.

Although it did not state specifically whether the discharge of the firearm

constituted aggravated assault or attempted murder, the district court found that

Mr. Fernandez had fired his weapon into the parking lot, and that the shooting

“definitely [was] a crime,” and overruled Mr. Fernandez’s objection to the

application of the §4B1.4(b)(3)(A) enhancement. 1 The district court also rejected

Mr. Fernandez’s argument that the prior felony convictions could not be

considered for enhancement purposes because they had not been found by the jury,

as that argument was foreclosed by Supreme Court precedent.

                                                 II

       On appeal, Mr. Fernandez argues that the district court failed to make an

independent factual finding, by a preponderance of the evidence, that he had

committed a crime of violence, see U.S.S.G. §4B1.4(b)(3)(A), because it failed to

specifically identify the crime he supposedly committed and wrongly stated that

whether the shooting was justified as self-defense was an issue for the jury to

decide. 2 He also contends that enhancing his sentence based on prior convictions

not submitted to or found by the jury violated his Sixth Amendment rights.



1
 As the district court put it: “I have overruled the objections for the reasons stated and also the
enhancement due to a crime of violence because there was a shooting.”
2
 Mr. Fernandez also raises the same argument as to the four-level enhancement under §
2K2.1(b)(6)(B) for possession of the firearm in connection with another felony offense. As this
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       We review a district court’s factual findings at sentencing for clear error and

the application of the Sentencing Guidelines to the facts de novo. United States v.

Johnson, 694 F.3d 1192, 1195 (11th Cir. 2012). “[W]e will not find clear error

unless our review of the record leaves us with the definite and firm conviction that

a mistake has been committed.” United States v. Poirier, 321 F.3d 1024, 1035-36

(11th Cir. 2003) (quoting Coggin v. Commissioner, 71 F.3d 855, 860 (11th Cir.

1996)).

      To support an armed career criminal enhancement under §4B1.4(b)(3)(A),

the district court must find by a preponderance of the evidence that the defendant

used or possessed a firearm “in connection with . . . a crime of violence.” See

United States v. Mellerson, 145 F.3d 1255, 1258 (11th Cir. 1998). A “crime of

violence” is “any offense under federal or state law, punishable by imprisonment

for a term exceeding one year, that has as an element the use [or] attempted use . . .

of physical force against the person of another . . . or otherwise involves conduct

that presents a serious potential risk of physical injury to another.” U.S.S.G. §

4B1.2(a). We have held that § 4B1.4(b)(3)(A) can apply regardless of whether or

not the crime of violence committed in connection with possession of the firearm

led to the defendant’s conviction. See Mellerson, 145 F.3d at 1257-58.




enhancement does not affect Mr. Fernandez’s ultimate guideline range or sentence, we do not
address it.
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      Here, the district court expressly found that Mr. Fernandez’s act of shooting

the firearm into the club parking lot constituted a crime, and based on the evidence,

that finding was not clearly erroneous. Although the district court did not specify

whether the crime was attempted murder or aggravated assault, that is of no

moment, for both offenses are crimes of violence. Aggravated assault is listed as a

crime of violence in the relevant commentary, see § 4B1.2(a), comment. (n.1), and

attempted murder involves the threatened use of physical force against another

and/or presents a serious potential risk of physical injury to another, see §

4B1.2(a)-(b). It therefore made no difference whether the district court found the

crime of violence was attempted murder or aggravated assault.             Under the

circumstances, no more specific finding was required, and we do not find any

reversible error.

      We also reject the suggestion that the district court erred by relying on or

adopting the jury’s finding that Mr. Fernandez’s actions were not justified by self-

defense. Given the preponderance of the evidence standard that the jury was told to

apply, the district court had ample basis for agreeing with the jury’s finding.   The

record, moreover, supports that finding. First, there was a marked period of time

between when Mr. Fernandez retreated to safety, grabbed the firearm, walked back

outside, and began firing into the crowd. Second, the video of the incident




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suggested Mr. Fernandez was the first to fire his weapon; witnesses could not

recall hearing gunfire before Mr. Fernandez discharged his firearm.

      Mr. Fernandez’s last argument – that his sentence was unconstitutionally

enhanced by prior convictions that were not submitted to or found by the jury – is

foreclosed by binding precedent. See Almendarez-Torres v. United States, 523 U.S.

224 (1998); United States v. Beckles, 565 F.3d 832, 846 (11th Cir. 2009).

                                        III

      We affirm Mr. Fernandez’s sentence.



            AFFIRMED.




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