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                                                          [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-10934
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:12-cr-20524-MGC-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

versus

DAVID YEG HOM,

                                                         Defendant-Appellant.

                       ________________________

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

                            (November 15, 2013)

Before TJOFLAT, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:
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      A Southern District of Florida jury convicted David Yeg Hom of possession

of firearms and ammunition by a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1), and the District Court sentenced him under 18 U.S.C. § 924(e)(1) to a

prison term of 220 months. Hom now appeals his conviction and sentence. He

challenges his conviction on the ground that the District Court erred in denying his

motion to suppress his post-arrest statements to the police because he “was in an

impaired mental and physical state” when the officers obtained his waiver of his

Miranda 1 rights. He challenges his sentence on two grounds: the District Court

erred (1) in applying a four-level enhancement to his base offense level pursuant to

U.S.S.G. § 2K2.1(b)(6)(B), because he did not use or possess a firearm in

connection with a felony offense, and (2) in sentencing him as an armed career

criminal, because his prior convictions were not charged in the indictment or found

by the jury. We address these challenges in turn.

                                          I.

      The circumstances that led to Hom’s arrest, his interrogation by an agent of

the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) and a Miami

Shores Police Department (“MSPD”) detective were these.

      Hom was looking for Willie Weaver because Weaver, who had an extensive

criminal record, had stolen three guns from him. Hom thought Weaver might be


      1
          Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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hiding out at the Miami Shores Hotel, so he drove to the hotel in his black Dodge

Charger. He discovered that Weaver and his girlfriend, Isabel Greenberg, were in

room No. 48. Armed with a handgun, Hom began banging violently on the door,

yelling and screaming , “I know you’re inside, come out, I know you are in there.”

Hom had threatened Weaver before, so Weaver called the police. The MSPD

dispatcher sent officers to the motel under code “232,” an aggravated assault in

progress. The dispatcher told them that Hom was an Asian male and that he had

driven to the motel in a black Dodge Charger. On arrival, they found the car, with

Wellington Griffin siting in the front seat. They had an outstanding warrant for

Griffin’s arrest, so they took him into custody. Officer Rivera then located Hom

trying to gain access to a motel room to hide. He brought Hom to room 48, where

Weaver and Greenberg identified him. Hom acknowledged to Rivera that he had

come to the motel to find Weaver, because Weaver had stolen guns from him.

      Hom gave the officers consent to search his automobile. They found three

backpacks and two duffel bags containing guns and ammunition inside the trunk.

Hom identified the backpacks and duffel bags as his, but stated that the guns

belonged to his wife, Tara Hom. In all, the search revealed two firearms and well

over 80 rounds of ammunition; a Mac-10 semiautomatic pistol extender; 42 rounds

of .45 caliber bullets; twenty .223 caliber rifle rounds; a Colt gun case and a fully-

loaded .45 caliber magazine; and a Browning 9 mm pistol.


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      The officers arrested Hom for possessing a firearm, weapon, and

ammunition as a convicted felon, transported him to the MSPD’s main

stationhouse for booking, and notified the ATF. After he was booked, ATF Agent

Morales and MSPD Detective Cazzola, the lead detective in the case, asked Hom if

he would be willing to speak to them. Agent Morales provided Hom with a

Miranda Rights and Waiver form and had Hom read the form out loud and indicate

his understanding of each right by placing his initials on the line and his signature

at the end. Before he signed the form, Hom said that he had smoked marijuana two

days before, but was not under the influence of any drugs and alcohol. He

explained that he had not slept much in the previous two days because he had been

searching for Weaver, who had stolen three rifles and a handgun from his business,

Professional Movers, in Hialeah Gardens. He later recanted his statement that

Weaver had stolen the firearms from his business and said that they were stolen

from a hotel room the previous week.

      Hom said that he and Griffin went to the Miami Shores Motel. He knocked

on the door to Weaver’s room, but Weaver would not answer. He denied carrying a

gun at the time, insisting that the object he was carrying in his hand was a

“cigarette.” When asked about the firearms found in the trunk of his car, he

claimed that his wife, Tara Hom, must have put them there. Shortly after the

interview concluded, Hom signed a consent form to give a DNA specimen. It


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revealed that Hom had handled the Browning 9 mm pistol recovered from the trunk

of his car.

       Hom claims that he signed the Miranda Rights and Waiver form and

submitted to questioning while in an impaired physical and mental state.

Accordingly, after he was indicted for violating 18 U.S.C. § 922(g)(1), he moved

the District Court to suppress the statements he made to Agent Morales and

Detective Cazzola.

       Attached to Hom’s motion was the deposition of Detective Gazzola and an

opinion letter from Dr. Juan B. Espinosa, a retained psychiatrist and neurologist.

Cazzola testified that he became involved in the case when he was called to the

scene by Officer Rivera. He found Hom was sitting in the patrol car and “was

really, really under the influence of narcotics,” “coming down off crack cocaine.”

He was having trouble standing. A friend of Hom’s told Cazzola that they had

been “smoking crack for 72 hours straight,” including a couple of hours before his

arrest. Cassola said that during Hom’s interview at the stationhouse, Hom kept

nodding off; but “[s]trangely, it was only around the important questions where he

would nod out.” Regarding Hom’s speech, it was “very lucid and coherent.”

       In his opinion letter, based on a reading of Cazzola’s deposition, medical

and legal records provided by Hom’s counsel, and his examination of Hom, Dr.

Espinosa concluded that Hom “was under the influence of substances at the


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moment of his arrest,” and that it was “very probable that he was not competent to

give consent or meaningful information at that time.”

      At the evidentiary hearing before the District Court, Agent Morales testified

that, before he and Detective Cazzola interviewed Hom, he told them that he was a

high school graduate and understood English. Morales said that he presented Hom

with a Miranda waiver form, that Hom appeared to understand his rights, reading

them out loud, and that he waived his rights, signing the form. During the

interview, Hom “looked a little sleepy,” but was “lucid” and “coherent,” in his

response to questioning. Agent Morales had read Detective Cazzola’s deposition,

but did not believe Cazzola’s testimony that Hom was under the influence of

narcotics or that he was coming down from crack. Nor did Morales believe that

Hom “was genuinely falling asleep” during the questioning; rather, he seemed to

pretend to fall asleep when asked “hard questions.”

      Officer Rivera testified that during his encounters with Hom at the motel,

Hom did not appear to be sick or under the influence of narcotics. Hom looked

“normal,” may have been tired, but never fell asleep midsentence. He voluntarily

consented to a search of his car even after being informed that he did not have to

consent.

      At the conclusion of the hearing, the court denied Hom’s suppression

motion. It credited Agent Morales testimony, disregarded Cazzola’s testimony that


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Hom was under the influence of crack cocaine when he saw him at the motel, and

found that Hom understood his Miranda rights and knowlingly and voluntarily

waived them. 2

       We review the denial of a motion to suppress as a mixed question of law and

fact. United States v. Spoerke, 568 F.3d 1236, 1244 (11th Cir. 2009). Rulings of

law are reviewed de novo, while the court’s findings of fact are reviewed for clear

error. “The district court’s ultimate conclusion on the voluntariness of a

confession, or the waiver of Miranda rights, raises questions of law to be reviewed

de novo.” United States v. Barbour, 70 F.3d 580, 584 (11th Cir. 1995) (quotation

omitted).

       Before it may introduce a defendant’s uncounseled statements made during

custodial interrogation, the government must show that the defendant made a

voluntary, knowing and intelligent waiver of his privilege against self-

incrimination and his right to counsel. United States v. Beale, 921 F.2d 1412, 1434

(11th Cir. 1991). “This showing has two distinct dimensions: (1) relinquishment

of the right must have been the product of a free and deliberate choice rather than

intimidation, coercion, or deception, and (2) waiver must have been made with the

awareness of both the right being abandoned and the consequences of the decision

to abandon that right.” Id. A waiver of Miranda is effective where the “totality of

       2
          We infer this finding from the statements the court made during and at the conclusion
of the hearing.
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the circumstances surrounding the interrogation reveal both an uncoerced choice

and the requisite level of comprehension.” Barbour, 70 F.3d at 585. A written

Miranda waiver “is usually strong proof of the validity of that waiver, but is not

inevitably either necessary or sufficient to establish waiver.” United States v.

Beckles, 565 F.3d 832, 840 (11th Cir. 2009).

      We find no error in the District Court’s denial of Hom’s motion to suppress.

The court did not clearly err in its factual finding that Hom’s Miranda waiver was

not obtained by intimidation, coercion, or deception, and there was strong

evidence—including a written Miranda waiver—that Hom was aware of his rights

and the consequences of abandoning them. We therefore affirm Hom’s conviction,

and move to the challenges to his sentence.

                                         II.

      We review a district court’s interpretation and application of the Sentencing

Guidelines de novo, United States v. Rhind, 289 F.3d 690, 693 (11th Cir. 2002),

and its findings of fact for clear error. Id. Evaluating whether a firearm was used

“in connection with” a felony offense is a factual determination and is evaluated

for clear error. United States v. Whitfield, 50 F.3d 947, 949 & n.8 (11th Cir. 1995).

To find clear error, we “must be left with a definite and firm conviction that a

mistake has been committed.” United States v. Rodriguez-Lopez, 363 F.3d 1134,

1137 (11th Cir. 2004) (quotation omitted).


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      In determining a defendant’s total offense level under the Guidelines, the

court consults U.S.S.G. § 2K2.1(b)(6)(B), which provides a four-level

enhancement where the defendant “used or possessed any firearm or ammunition

in connection with another felony offense; or possessed or transferred any firearm

or ammunition with knowledge, intent, or reason to believe that it would be used or

possessed in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B).

It is the government’s burden to show by a preponderance of the evidence that the

evidence warrants the enhancement. United States v. Kinard, 472 F.3d 1294, 1298

(11th Cir. 2006).

      Simple assault does not qualify as a felony under Florida law, so the conduct

must rise to the level of an aggravated assault in order to qualify as a felony. Fla.

Stat. § 784.011(2). Under Florida law, an assault is “an intentional, unlawful threat

by word or act to do violence to the person of another, coupled with an apparent

ability to do so” along with “some act which creates a well-founded fear in such

other person that such violence is imminent.” Fla. Stat. § 784.011(1). An

aggravated assault is an assault which involves the use of a “deadly weapon

without intent to kill” or is done “with an intent to commit a felony.” Fla. Stat.

§ 784.021(1).

      The government’s proof at trial—which mirrored the evidence before the

court when it heard Hom’s motion to suppress—was sufficient to satisfy, by a


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preponderance of the evidence, the elements of the crime of felony aggravated

assault under Florida law. See Fla. Stats. §§ 784.011 and 784.021. Thus, there

was no clear error in the district court’s finding that Hom possessed a firearm in

connection with another felony offense.

                                          III.

      We review constitutional sentencing issues de novo. United States v. Steed,

548 F.3d 961, 978 (11th Cir. 2008). Pursuant to 18 U.S.C. § 924(a)(2), any person

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

§ 922(g), “shall be imprisoned not more than 10 years.” 18 U.S.C. § 924(a)(2).

However, under 18 U.S.C. § 924(e)(1), a person convicted under § 922(g) who has

three previous convictions in any court for violent felonies or serious drug

offenses—which is the case here—is subject to a mandatory minimum sentence of

15 years’ imprisonment. 18 U.S.C. § 924(e)(1). The government need not allege

in its indictment or prove beyond a reasonable doubt that a defendant had prior

convictions in order for a sentencing court to use those convictions for purposes of

enhancing a sentence. Almendarez–Torres v. United States, 523 U.S. 224, 226–27,

118 S. Ct. 1219, 1222–23, 140 L.Ed.2d 350 (1998).

      As Hom properly concedes, Almendarez-Torres remains good law; hence,

the district courts may determine both the existence of prior convictions and the

factual nature of those convictions for Armed Career Criminal Act purposes. See


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United States v. Weeks, 711 F.3d 1255, 1259 (11th Cir. 2013), cert. denied (No. 13-

5563) (U.S. Oct. 7, 2013).

                                        IV.

      For the reasons stated in parts I, II and III, Hom’s conviction and sentence

are

      AFFIRMED.




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