             Case: 12-11713    Date Filed: 02/08/2013   Page: 1 of 4

                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 12-11713
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 8:11-cr-00453-JSM-TGW-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

SERGIO ANTONIO HOOD,

                                                            Defendant-Appellant.

                         ________________________

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

                              (February 8, 2013)

Before CARNES, BARKETT and HULL, Circuit Judges.

PER CURIAM:

      After pleading guilty, Defendant Sergio Antonio Hood appeals his total 94-

month sentence on three counts of distribution of methylene-methylamphetamine,
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in violation of 21 U.S.C. § 841(a)(1), (b)(1(C) and 18 U.S.C. § 2, and two counts

of possession of a firearm as a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1). On appeal, Hood argues that the district court incorrectly applied a

four-level firearms enhancement, pursuant to U.S.S.G. § 2K2.1(b)(1)(B). After

review, we affirm. 1

       Under U.S.S.G. § 2K2.1, if the offense involved 3 to 7 firearms, the offense

level is increased by two levels, and if the offense involved 8 to 24 firearms, the

offense level is increased by four levels. U.S.S.G. § 2K2.1(b)(1)(A) & (B). “For

purposes of calculating the number of firearms,” the district court counts “only

those firearms that were unlawfully sought to be obtained, unlawfully possessed, or

unlawfully distributed . . . .” Id. § 2K2.1, cmt. n.5.

       At sentencing, Defendant Hood admitted he actually possessed four

firearms. On appeal, Hood maintains that the government failed to prove he

possessed more than these four firearms, and thus he should have received only the

two-level firearms enhancement under § 2K2.1(b)(1)(A).

       Possession of a firearm may be either actual or constructive. United States

v. Perez, 661 F.3d 568, 576 (11th Cir. 2011). To demonstrate constructive

possession, the government must show that the defendant: (1) was aware or knew

of the firearm’s presence and (2) had the ability and intent to later exercise

       1
        We review the district court’s application of the Sentencing Guidelines de novo and its
findings of fact for clear error. United States v. Demarest, 570 F.3d 1232, 1239 (11th Cir. 2009).
                                                2
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dominion and control over that firearm. Id. The second element of constructive

possession is satisfied if the defendant intended to exercise dominion and control

of the gun through another. Id.; see also United States v. Virciglio, 441 F.2d 1295,

1298 (5th Cir. 1971) (finding ample evidence to support a jury’s finding of

constructive possession where defendant planned the sale of the gun and received

the money for its purchase).2

       Here, undisputed factual allegations in Hood’s Presentence Investigation

Report (“PSI”) established that Defendant Hood, a convicted felon, facilitated the

sale of a total of eleven firearms to a confidential source (“CS”) and an undercover

detective (“UC”). See United States v. Wade, 458 F.3d 1273, 1277 (11th Cir.

2006) (explaining that undisputed facts in the PSI are admitted for sentencing

purposes). Specifically, on seven different days in March and April 2011, Hood

contacted the CS and the UC and arranged to sell them one or more firearms.

During these firearms transactions, the CS and the UC met with Hood and another

person. While the other person handed the firearm to the UC and the CS, Hood

accepted the payment from the CS and the UC. Hood often referred to these

individuals who handed over the firearms as his “boys.”




       2
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decision of the former Fifth Circuit decided prior to
October 1, 1981.
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      Based on these undisputed facts, the district court found that Defendant

Hood constructively possessed, and thus unlawfully distributed, the seven firearms

delivered by his “boys” to the firearms transactions. Those seven, plus the four

Hood admitted actually possessing, brought him over the eight firearm threshold

under § 2K2.1(b)(1)(B). Further, the district court’s finding of constructive

possession is not clear error. Contrary to Hood’s contention, he was not merely

present at these firearms transactions. Hood arranged all the firearms transactions

and accepted the money for the firearms, which is sufficient to show constructive

possession. See Virciglio, 441 F.2d at 1298. Accordingly, the district court did

not err in counting all eleven firearms and applying the four-level enhancement in

U.S.S.G. § 2K2.1(b)(1)(B).

      AFFIRMED.




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