                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               July 24, 2009
                               No. 09-10409                  THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                   D. C. Docket No. 08-00089-CR-2-TWT-1

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

TERRANCE SILVON ANDERSON, JR.,

                                                           Defendant-Appellant.


                         ________________________

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

                                (July 24, 2009)

Before TJOFLAT, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

     On October 7, 2008, appellant pled guilty to an indictment that charged him
and Clifton Devon Berry, Jr., with aiding and abetting each other in knowingly

causing false representations to be made with respect to information required to be

kept in the records of a federal firearms licensee, in violation of 18 U.S.C. § §

924(a)(1)(A) and 2. On January 20, 2009, the district court sentenced appellant to

a prison term of 24 months.1 He now appeals his sentence, arguing that the court

misapplied U.S.S.G. § 2K2.1(b)(6) (2008) in calculating the total offense level for

the § 924(a)(1)(A) offense because the Government failed to prove that he “used or

possessed any firearm . . . in connection with another felony offense” by shooting

Sean Rowser in the foot during an altercation in New York. He asserts that under

New York law, he would only have been criminally liable for the misdemeanor

offense of third-degree assault because he fired one round into the air. He also

argues that the Government failed to prove that the shooting was not justified as

self-defense or defense of others.

       We review a district court’s application the Sentencing Guidelines de novo,

and the court’s findings of fact for clear error. United States v. Rhind, 289 F.3d

690, 693 (11th Cir. 2002). “For a factual finding to be clearly erroneous, this

court, after reviewing all of the evidence, must be left with a definite and firm

conviction that a mistake has been committed.” United States v. Rodriguez-Lopez,


       1
          The sentence was at the high end of the Guidelines sentence range prescribed for a total
offense level of 15 and a criminal history category of I.

                                                2
363 F.3d 1134, 1137 (11th Cir. 2004) (internal quotation marks omitted). “The

government bears the burden of establishing by a preponderance of the evidence

the facts necessary to support a sentencing enhancement.” United States v. Kinard,

472 F.3d 1294, 1298 (11th Cir. 2006). If a defendant challenges one of the factual

bases for his sentence, the government must prove the disputed fact by a

preponderance of the evidence. United States v. Cataldo, 171 F.3d 1316, 1321

(11th Cir. 1999).

      A party who fails to object to a fact stated in a presentence investigation

report (“PSI”) admits the fact for sentencing purposes. United States v. Wade, 458

F.3d 1273, 1277 (11th Cir. 2006). A challenge to facts contained in the PSI must

be asserted with specificity and clarity; otherwise, the challenge is waived. United

States v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006).

      The base offense level for a § 924(a)(1)(A) offense must be increased by

four levels “[i]f the defendant used or possessed any firearm . . . in connection with

another felony offense.” U.S.S.G. § 2K2.1(b)(6)(2008). “If the resulting offense

level is less than level 18,” the offense level is increased to level 18. Id. The

commentary to § 2K2.1(b)(6) defines “another felony offense” as “any federal,

state, or local offense, other than the explosive or firearms possession or trafficking

offense, punishable by imprisonment by a term exceeding one year, regardless of



                                           3
whether a criminal charge was brought, or a conviction obtained.” U.S.S.G. §

2K2.1, comment. (n.14(C)).

      Under New York law, a person is guilty of third-degree assault, a class A

misdemeanor punishable up to one year imprisonment, when he either (1) “[w]ith

intent to cause physical injury to another person . . . causes such injury to such

person or to a third person;” (2) “recklessly causes physical injury to another

person;” or (3) “[w]ith criminal negligence . . . causes physical injury to another

person by means of a deadly weapon or dangerous instrument.” N.Y. Penal Law

§ 120.00 (emphasis added). “Criminal negligence” is defined as “fail[ure] to

perceive a substantial and unjustifiable risk that such result will occur or that such

circumstance exists.” N.Y. Penal Law § 15.05(4).

      In contrast, a person commits second-degree assault, a felony in New York,

when “[w]ith intent to cause physical injury to another person, he causes such

injury to such person or to a third person by means of a deadly weapon or a

dangerous instrument.” N.Y. Penal Law § 120.05(2) (emphasis added). “A person

acts intentionally with respect to a result or to conduct described by a statute

defining an offense when his conscious objective is to cause such result or to

engage in such conduct.” N.Y. Penal Law § 15.05(1).

      At sentencing, appellant did not object to the PSI’s statement of fact that he



                                           4
“pulled out a black handgun and shot Rowser in the right foot.” Because he did

not object to this statement, the district court did not clearly err in finding that

appellant did, in fact, shoot Rowser and thereby committed an assault in the second

degree under New York law. See N.Y. Penal Law § 120.05(2). Furthermore, (1)

his admission that he discharged a firearm near Rowser, (2) his arrest for

committing a second-degree assault on Rowser, (3) his recorded admission of

previously shooting nine individuals, and (4) the lack of any evidence indicating

that the shooting was justified, such as in self-defense, supported the district

court’s finding that he committed “another felony offense.” In sum, based on the

facts presented in the record, we are not left with a “definite and firm conviction”

that the district court erred by finding that appellant committed second-degree

assault.

       AFFIRMED.




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