           Case: 19-13760   Date Filed: 04/03/2020    Page: 1 of 7



                                                       [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-13760
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 1:16-cr-00413-AT-JFK-1



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

versus

DONTAVIOUS M. BERRY,

                                               Defendant - Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                             (April 3, 2020)

Before JORDAN, NEWSOM, and BRANCH, Circuit Judges.

PER CURIAM:
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      Dontavious Berry appeals his 86-month sentence for being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(l). Mr. Berry contends

that the district court improperly increased his base offense level at sentencing when

it considered two prior Georgia aggravated assault convictions, which he argues do

not constitute crimes of violence under the Sentencing Guidelines. After reviewing

the record and the parties’ briefs, we affirm Mr. Berry’s sentence.

                                           I

      A federal grand jury returned an indictment charging Mr. Berry with a single

count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §

922(g)(1). Mr. Berry pled guilty to the charge.

      The probation department calculated Mr. Berry’s base offense level as 24

under U.S.S.G. § 2K2.1(a)(2) because he committed the offense after having at least

two prior felony convictions for crimes of violence. The probation department

applied a two-level enhancement under 2K2.1(b)(4)(A) because the firearm was

stolen and a three-level reduction under § 3E1.1(a)–(b) for acceptance of

responsibility.

       In calculating Mr. Berry’s criminal history, the probation department

determined that he had 11 criminal history points and added two more points because

he committed the offense while on probation. Mr. Berry therefore received a

criminal history category of VI.


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         Relevant to this appeal, Mr. Berry’s criminal history included a Georgia

conviction for aggravated assault in 2012 and another Georgia conviction for

aggravated assault in 2016. With respect to the 2012 conviction, the probation

department’s presentence investigation report stated that Mr. Berry “assaulted [the

victim] by shooting at, toward and in the direction of [the victim] with a pistol.” PSI

¶ 31. As to the 2016 conviction, the presentence investigation report stated that Mr.

Berry “assaulted [the victim] by shooting at, toward, and in the direction of the

victim, with a handgun.” Id. ¶ 32.

         Based on Mr. Berry’s total offense level of 23 and a criminal history category

of VI, the advisory guideline imprisonment range was 92 to 115 months. Mr. Berry

did not object to the aggravated assault convictions or the offense level under §

2K2.l(a)(2) for having two prior felony convictions for crimes of violence. He

argued instead that the district court should consider, as a mitigating factor, that he

was not the actual perpetrator of the 2006 aggravated assault, but only a party to the

crime.

         At sentencing, Mr. Berry did not raise any additional objections to the

presentence investigation report. The district court considered the § 3553(a) factors

and sentenced Mr. Berry to 86 months’ imprisonment, which was six months below

the bottom of the advisory guideline range. The court also imposed two years of

supervised release.


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                                            II

      Mr. Berry argues for the first time on appeal that the district court improperly

set his base offense level under § 2K2.1(a)(2) based on his two prior Georgia

aggravated assault convictions. He maintains those felonies do not constitute crimes

of violence under the Sentencing Guidelines. We disagree.

      When a defendant does not object to his sentence before the district court and

raises the objection for the first time on appeal, we review for plain error. See United

States v. Ramirez-Flores, 743 F.3d 816, 821 (11th Cir. 2014). “To prevail under the

plain error standard, an appellant must show: (1) an error occurred; (2) the error was

plain; (3) it affected his substantial rights; and (4) it seriously affected the fairness

of the judicial proceedings.” Id. at 822.

      Under the Sentencing Guidelines, unlawful possession of a firearm carries a

base offense level of 24 if the defendant committed any part of the offense

subsequent to at least two felony convictions for either a crime of violence or a

controlled substance offense. See § 2K2.1(a)(2). As relevant here, § 2K2.1 cross-

references § 4B1.2(a)’s definition of a crime of violence, see id. § 2K2.1, cmt (n.1),

and § 4B1.2(a)(1)’s elements clause defines a crime of violence as an offense that

has as an element the use, attempted use, or threatened use of physical force against


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the person of another. See § 4B1.2(a)(1). And § 4B1.2(a)(2)’s enumerated-offenses

clause contains a list of offenses that qualify as crimes of violence, including

aggravated assault. See § 4B1.2(a)(2).

      The Georgia 2012 and 2016 aggravated assault statutes under which Mr.

Berry was convicted provide, in relevant part, that a person commits an aggravated

assault when he commits a simple assault “(1) with the intent to murder, rape, or rob,

or (2) with a deadly weapon or an ‘object, device, or instrument’ that is ‘likely to or

actually does result in serious bodily injury’ when used offensively.” United States

v. Morales-Alonso, 878 F.3d 1311, 1316 (11th Cir. 2018). See also O.C.G.A. § 16-

5-21(a)(1)-(2) (2012); O.C.G.A. § 16-5-21(b)(1)-(2) (2016).

      In Morales-Alonso, a defendant convicted of illegal reentry had a prior

conviction under the 2012 version of O.C.G.A. § 16-5-21, and specifically under the

subsection pertaining to aggravated assault with a deadly weapon. See Morales-

Alonso, 878 F.3d at 1312–13. After comparing the generic definition of aggravated

assault under the Sentencing Guidelines, pursuant to § 2L1.2’s enumerated-offenses

clause, with Georgia’s aggravated assault with a deadly weapon statute, O.C.G.A. §

16-5-21(a)(2), we concluded that both contained substantially the same elements.

See id. at 1317. And we held that Georgia aggravated assault with a deadly weapon

qualified as a crime of violence under the Sentencing Guidelines’ enumerated-

offenses clause. See id.


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      Here, Mr. Berry’s argument is foreclosed by Morales-Alonso, as that case

makes clear that a conviction under Georgia’s 2012 aggravated assault statute, with

a deadly weapon, qualifiess as a crime of violence under the enumerated-offenses

clause of the Sentencing Guidelines. See id. Furthermore, the 2016 aggravated

assault statute is identical in all relevant respects to the 2012 aggravated assault

statute. Compare O.C.G.A. § 16-5-21(a)(2) (2012), with O.C.G.A. § 16-5-21(b)(2)

(2016). There was not error, much less plain error.

      Mr. Berry asserts that it was unclear which sections of Georgia’s aggravated

assault statute he was convicted under, and that we should reverse to allow the

district court to make that determination before his Georgia aggravated assault

convictions are used to enhance his sentence. This argument is without merit.

      The district court adopted the presentence investigation report, which

included a description of Mr. Berry’s two Georgia aggravated assault convictions

and the fact that both included the use of a deadly weapon. Mr. Berry did not object

to the report, so those facts are deemed admitted. See United States v. Wade, 458

F.3d 1273, 1277 (11th Cir. 2006) (concluding that “failure to object to allegations of

fact in a PSI admits those facts for sentencing purposes”). Because both aggravated

assault convictions involved the use of a deadly weapon, this case is governed by

Morales-Alonso. See 878 F.3d at 1320. The district court therefore did not err in

setting Mr. Berry’s base offense level under § 2K2.1(a)(2).


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                                 III

For the foregoing reasons, we affirm Mr. Berry’s sentence.

AFFIRMED.




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