           Case: 15-12174   Date Filed: 06/29/2016   Page: 1 of 17


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-12174
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:14-cr-20293-FAM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

CHRISTOPHER OLIVER,

                                                         Defendant-Appellant.

                       ________________________

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

                              (June 29, 2016)

Before TJOFLAT, WILLIAM PRYOR, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      A jury convicted Defendant Christopher Oliver of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Defendant now

appeals his conviction and 108-month sentence. He first argues that the district

court abused its discretion by admitting evidence that he had previously possessed

a firearm. Next, he contends that the district court erred by determining that his

prior conviction for child neglect in Florida constituted a crime of violence under

U.S.S.G. §§ 2K2.1(a)(2) and 4B1.2(a). Finally, he asserts that his sentence is

substantively unreasonable. After careful review, we affirm.

I. BACKGROUND

      A.     Factual Background

      On the evening of February 15, 2014, Melvina Bennett was at her residence

taking a shower when she heard gun shots. She ran out of the shower and called

the police. When she looked outside, she saw Defendant sitting in a chair with a

gun in his lap. She knew it was Defendant because he had been to her house

previously to get tattoos. Defendant got up before the police arrived but left the

gun in the chair. While the police were still at the home, Defendant returned and

Bennett identified him as the individual who had had the gun. A struggle

subsequently ensued between Defendant and the officers because Defendant

refused to comply with the officers’ instructions. Officers eventually placed

Defendant under arrest. After securing Defendant, officers searched the property


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and found three shell casings that investigators later determined were fired from

the firearm recovered at the scene.

      B.       Procedural History

      A federal grand jury subsequently issued an indictment against Defendant,

charging him with being a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(1). Defendant pleaded not guilty and proceeded to trial on

February 23, 2015.

      At trial, Bennett testified as a witness for the Government. On cross-

examination, after Bennett stated that she did not see who fired the gun on the

night of the incident, the following exchange took place between defense counsel

and Bennett:

      [Defense Counsel]:        And besides seeing [Defendant] sitting in that
                                chair, you never saw [Defendant] at any other time
                                with a gun that night, correct?

      [Bennett]:                Besides that night?

      [Defense Counsel]:        Just when he’s sitting in the chair. Besides sitting
                                in the chair, he wasn’t walking around in your yard
                                with a gun. Nothing like that, right?

      [Bennett]:                I remember one day he came—

      [Defense Counsel]:        Ms. Bennett, listen to my question.

      [Bennett]:                Well, no, no, no, no.

      [Defense Counsel]:        Okay. Just that night.


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      [Bennett]:                 No.

      [Defense Counsel]:         All right. Besides him being in the chair that
                                 night, nothing else, correct?

      [Bennett]:                 No. Correct.

      On redirect examination, the Government asked Bennett, “Now, counsel

asked you a question on cross-examination, have you ever seen the defendant with

a firearm before.” Defendant objected, arguing that the question was not relevant.

The Government responded that Defendant opened the door on cross-examination

based on his unclear question about whether Bennett had seen Defendant with a

gun before. The district court overruled Defendant’s objection “based on when the

question was asked, how the question was asked, and how the witness was

interrupted when that question was asked.” Bennett then responded that she had

seen Defendant with a firearm before when he used to come to her house. The jury

ultimately returned a guilty verdict against Defendant.

      In anticipation of sentencing, the probation officer prepared a Presentence

Investigation Report (“PSR”). The PSR assigned Defendant a base offense level of

24, pursuant to U.S.S.G. § 2K2.1(a)(2) because Defendant committed the present

offense after sustaining at least two felony convictions for either a crime of

violence or a controlled substances offense. Of relevance, the PSR identified a

prior conviction for possession of heroin with intent to sell in 2010, and child

neglect in 2006. Defendant did not receive any enhancements or adjustments,
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which resulted in a total offense level of 24. Because Defendant received nine

criminal history points, the PSR assigned him a criminal history category of IV.

Based on a total offense level of 24 and a criminal history category of IV, the PSR

calculated a guideline range of 77 to 96 months’ imprisonment.

      Defendant filed objections to the PSR. Other than various factual

objections, Defendant objected only to the PSR’s assignment of a base offense

level of 24 under § 2K2.1(a)(2), arguing that his conviction for possession with

intent to sell heroin was not a qualifying predicate offense.

      At sentencing, the district court overruled Defendant’s objection related to

whether his heroin conviction qualified as a controlled substance offense. As a

result, the district court calculated a guideline range of 77 to 96 months’

imprisonment. The Government requested a 92-month sentence in light of

Defendant’s reckless conduct. After considering the 18 U.S.C. § 3553(a) factors,

the district court determined that an upward variance was warranted. The district

court emphasized Defendant’s prior convictions, including his child neglect

conviction—which involved a minor child shooting himself in the leg with

Defendant’s gun—as well as Defendant’s 2010 conviction for possession of 14

bags of heroin. Consequently, the district court sentenced Defendant to 108

months’ imprisonment. Defendant reiterated his previous objections, and also

objected to the upward variance. This appeal followed.


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II. DISCUSSION

      A.     Admission of Defendant’s Prior Possession of a Firearm

      Defendant first challenges Bennett’s testimony on redirect examination that

she had previously seen Defendant with a firearm. Defendant argues that the

district court violated Federal Rule of Evidence 404(b) by admitting this testimony.

In particular, he asserts that he did not open the door to the introduction of such

evidence, nor was he given notice of this prejudicial evidence.

      We review the district court’s evidentiary rulings for an abuse of discretion.

United States v. Barsoum, 763 F.3d 1321, 1338 (11th Cir. 2014). We have stated

that inadmissible extrinsic evidence becomes admissible on redirect examination

where defense counsel “opens the door” to the evidence during cross-examination.

United States v. West, 898 F.2d 1493, 1500 (11th Cir. 1990). The Government

may elicit testimony on redirect that clarifies issues to which the defense has

opened the door on cross-examination. United States v. Elliott, 849 F.2d 554, 559

(11th Cir. 1988).

      The district court did not abuse its discretion when it determined that

Defendant opened the door to Bennett’s testimony about whether she had ever seen

him with a gun before. Defense counsel apparently tried to limit his initial

question on cross-examination to whether Bennett had seen Defendant with a gun

at any other time on the night of the incident by asking: “And besides seeing


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[Defendant] sitting in that chair, you never saw [Defendant] at any other time with

a gun that night, correct?” Before answering the question, Bennett asked for

clarification: “Besides that night?” But instead of simply answering, “no,”

counsel’s response was more confusing that his initial question. Indeed, counsel

stated: “Just when he’s sitting in the chair. Besides sitting in the chair, he wasn’t

walking around in your yard with a gun. Nothing like that, right?” When Bennett

began to answer that she had previously seen Defendant with a gun, counsel

promptly interrupted her.

      The district court’s determination that Defendant’s ambiguous question

opened the door to Bennett’s testimony was not an abuse of discretion, regardless

of whether Defendant intended to ask that question. See West, 898 F.2d at 1500.

Although Defendant attempted to prevent Bennett from answering when he

realized the testimony she was about to provide, the Government was entitled to

clarify Bennett’s answer on redirect examination because Defendant had already

opened that door. See Elliott, 849 F.2d at 559; see also United States v. Baptista-

Rodriguez, 17 F.3d 1354, 1366 n.13 (11th Cir. 1994) (stating that the district court

did not abuse its discretion by permitting the Government to clarify on redirect

examination an area of testimony that the defendant had raised on cross-

examination).




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       In any event, even if Defendant had not opened the door to this testimony, it

would have been permissible under Rule 404(b), which provides that evidence of

crimes, wrongs, or other acts is not admissible to prove a person’s character in

order to show that on a particular occasion the person acted in accordance with that

character. Fed. R. Evid. 404(b)(1). However, this extrinsic evidence may be

admissible for another purpose, such as to prove motive, intent, knowledge,

absence of mistake, or lack of accident. Fed. R. Evid. 404(b)(2).

       Defendant asserts that the Government did not provide notice of Bennett’s

testimony as required under Rule 404(b). Because Defendant did not object to

Bennett’s testimony based on the lack of notice, we review this argument for plain

error.1 United States v. Clark, 274 F.3d 1325, 1326 (11th Cir. 2001) (“We review

arguments raised for the first time on appeal for plain error.”). Nevertheless, the

district court did not err, plainly or otherwise, by admitting this evidence without

prior notice from the Government. The rule states that the Government must

provide notice on request by the defendant, but Defendant did not request notice of

the evidence. See Fed. R. Evid. 404(b)(2). But even if Defendant had, the

Government would not have been able to provide it because, as explained by the

Government at trial, it only learned of this evidence at trial. What’s more is that
1
   Under plain error review we will reverse where there is “(1) an error (2) that is plain
and (3) that has affected the defendant’s substantial rights; and . . . (4) the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” United States
v. Madden, 733 F.3d 1314, 1322 (11th Cir. 2013).


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our focus with respect to this issue is on whether Defendant was prejudiced by the

lack of notice, and Defendant has not explained how he was prejudiced. See

United States v. Perez-Tosta, 36 F.3d 1552, 1561 (11th Cir. 1994) (“[C]ourts have

focused upon the prejudice suffered by defendant because of the lack of notice.”).

As such, Defendant has failed to show that the district court erred, much less

plainly erred, by admitting this evidence without notice.

      As to Defendant’s argument that the testimony was not admissible under

Rule 404(b), we disagree. To be admissible under Rule 404(b): “1) the evidence

must be relevant to an issue other than the defendant’s character; 2) sufficient

evidence must be presented to allow a jury to find that the defendant committed the

extrinsic act; and, 3) the probative value of the evidence must not be substantially

outweighed by its undue prejudice.” United States v. Sterling, 738 F.3d 228, 238

(11th Cir. 2013). The evidence that Defendant had previously possessed a gun was

relevant to an issue other than Defendant’s character, namely, this testimony

established that Defendant knowingly possessed the firearm and did not have it by

accident or mistake. Cf. United States v. Jernigan, 341 F.3d 1273, 1281–82 (11th

Cir. 2003) (concluding that the admission of evidence of defendant’s previous

convictions, which both involved possession of a firearm in an automobile, were

permissible under Rule 404(b) because they bore on his knowledge of the crime,

not his propensity to commit the crime). Because Defendant did not admit or


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stipulate to the fact that he knowingly possessed a firearm, his knowledge was an

element that the Government was required to prove. See 18 U.S.C. § 922(g)(1).

      Moreover, contrary to Defendant’s contentions, Bennett’s uncontested

testimony that she had previously observed Defendant with a firearm at her house

was sufficient for a jury to have potentially concluded by a preponderance of the

evidence that Defendant possessed a firearm, especially given Bennett’s testimony

that Defendant had been to her house to get tattoos. See United States v. Edouard,

485 F.3d 1324, 1345 (11th Cir. 2007) (concluding that a jury could have found by

a preponderance of the evidence that the defendant committed the extrinsic

conduct based on uncontested testimony); United States v. Shores, 966 F.2d 1383,

1386–87 (11th Cir. 1992) (concluding that there was sufficient evidence for a

reasonable jury to conclude that a defendant committed a prior act, despite the lack

of detail and corroboration).

      Finally, Bennett’s testimony was more probative than prejudicial because

the past act—possessing a firearm—was substantially similar to the charge here.

“Whether the probative value of Rule 404(b) evidence outweighs its prejudicial

effect depends upon the circumstances of the extrinsic offense.” Edouard, 485

F.3d at 1345 (alteration and quotations omitted). Though recognizing that the

evidence was prejudicial, the district court nevertheless implicitly found that it was

more probative, and thus admissible under Rule 404(b). See United States v.


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Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005) (“A similarity between the other

act and a charged offense will make the other offense highly probative with regard

to a defendant’s intent in the charged offense.”).

      Because Defendant opened the door to the Government’s follow-up question

on redirect examination, and because Bennett’s testimony was admissible under

Rule 404(b), the district court did not abuse its discretion by admitting that

testimony.

      B.     Crime of Violence

      Defendant next challenges the district court’s determination that his 2006

conviction for child neglect pursuant to Florida Statute § 827.03 was a crime of

violence under U.S.S.G. § 2K2.1(a)(2).

      We typically review the issue of whether a defendant’s conviction

qualifies as a crime of violence under the Sentencing Guidelines de novo.

United States v. Pantle, 637 F.3d 1172, 1173 (11th Cir. 2011). However,

because Defendant did not object to the designation of his child neglect

conviction as a crime of violence before the district court, our review is

limited to plain error. See id.

      Section 2K2.1(a)(2) of the Sentencing Guidelines provides for a base offense

level of 24 if the defendant committed the present offense subsequent to sustaining

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


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substance offense. U.S.S.G. § 2K2.1(a)(2). The Guidelines define the term crime

of violence as:

      any offense under federal or state law, punishable by imprisonment
      for a term exceeding one year, that—

             (1)    has as an element the use, attempted use, or threatened
                    use of physical force against the person of another, or

             (2)    is burglary of a dwelling, arson, or extortion, involves
                    use of explosives, or otherwise involves conduct that
                    presents a serious potential risk of physical injury to
                    another.

U.S.S.G. § 4B1.2(a).

      Defendant argues that his 2006 Florida conviction for child neglect is not a

crime of violence. Florida law provides that “[a] person who willfully or by

culpable negligence neglects a child and in so doing causes great bodily harm,

permanent disability, or permanent disfigurement to the child commits a felony of

the second degree.” Fla. Stat. § 827.03(2)(b). Neglect of a child is defined as:

      1. A caregiver’s failure or omission to provide a child with the care,
      supervision, and services necessary to maintain the child’s physical
      and mental health, including, but not limited to, food, nutrition,
      clothing, shelter, supervision, medicine, and medical services that a
      prudent person would consider essential for the well-being of the
      child; or

      2. A caregiver’s failure to make a reasonable effort to protect a child
      from abuse, neglect, or exploitation by another person.

Fla. Stat. § 827.03(1)(e).



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      To show plain error under Federal Rule of Criminal Procedure 52(b), a

defendant must show (1) that he did not intentionally relinquish or abandon the

error; (2) the error must be plain, meaning clear or obvious; and (3) the error must

have affected the defendant’s substantial rights, which ordinarily means he must

show a reasonable probability that, but for the error the outcome of the proceeding

would have been different. Molina-Martinez v. United States, 136 S. Ct. 1338,

1343 (2016). If all three of these showings have been made, the court of appeals

may then exercise its discretion to correct the forfeited error if the latter also

seriously affects the fairness, integrity, or public reputation of the proceedings. Id.

      Defendant has not demonstrated plain error based on the above test. As to

the second factor, we have held that where the explicit language of a statute or rule

does not specifically resolve an issue, there can be no plain error absent precedent

from the Supreme Court or this Court directly resolving the question. See United

States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003). A determination

that Defendant’s conviction for child neglect constituted a crime of violence

necessarily was based on a conclusion that this offense involved “conduct that

presents a serious potential risk of physical injury to another,” pursuant to U.S.S.G.

§ 4B1.2(a)(2). Although one can question whether a Florida conviction for child

neglect meets the definition set out in the above Guidelines’ provision, Defendant

has not cited us to any Supreme Court or Circuit precedent so ruling.


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       But even assuming that the district court plainly erred in failing to sua

sponte conclude that the PSR erroneously counted this conviction as a crime of

violence, Defendant has failed to show that this error affected his substantial rights

because he has failed to show a reasonable probability that, but for the error, the

outcome of the proceeding would have been any different. It is true that the

Supreme Court has recently held that when a district court has “mistakenly deemed

applicable an incorrect, higher Guidelines range,” Molina-Martinez, 136 S. Ct. at

1346, and when “the record is silent as to what the district court might have done

had it considered the correct Guidelines range,” “in most instances” this will

“suffice to show an effect on the defendant’s substantial rights.” Id. at 1347. But

where the record shows that the district court thought the sentence it chose was

appropriate regardless of the Guidelines range, then a reasonable probability of

prejudice will not be shown based on an incorrect calculation of the Guidelines.

Id. at 1346–47.

       Here, the district court made it clear that its sentencing decision was not

based on the Guidelines range. 2 As discussed below, the court engaged in a long

colloquy regarding its concerns about Defendant’s fixation on guns and violence

and the future danger that he posed, given his past conduct and his continuing

2
  With two prior convictions for crimes of violence or controlled substance offenses, the
Guideline range was 77-96 months, based on an offense level of 24 and a criminal history
category IV. If the child-neglect conviction had not been considered a crime of violence, the
offense level would have been 20, for a range of 51-63 months.
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fondness for firearms. The court imposed an upward variance in reaching its

sentence of 108 months. The court made clear that the Guidelines were not the

driver in its decision-making process. Rather, the court stated that it had originally

intended to impose a ten-year sentence, which was the statutory maximum, but had

been sufficiently persuaded by defense counsel’s advocacy to “go down one year”

and impose a nine-year sentence instead. In short, Defendant has shown no

prejudice by any error occurring in the imposition of the 4-level enhancement

based on the existence of two convictions for either a crime of violence or a

controlled substance offense.

      C.     Substantive Reasonableness

      Defendant’s final argument is that his 108-month sentence is substantively

unreasonable. Defendant asserts that the district court unreasonably relied on his

prior conviction for child neglect because the record showed that the injury the

minor victim suffered was merely accidental.

      Using a two-step process, we review the reasonableness of a district court’s

sentence for abuse of discretion. United States v. Cubero, 754 F.3d 888, 892 (11th

Cir. 2014). We first look to whether the district court committed any procedural

error, and then we examine whether the sentence is substantively reasonable in




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light of the totality of the circumstances and the 18 U.S.C. § 3553(a) factors. 3 Id.

The party challenging the sentence bears the burden of showing that it is

unreasonable. United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008). We

will only vacate a defendant’s sentence if we are “left with the definite and firm

conviction that the district court committed a clear error of judgment in weighing

the § 3553(a) factors by arriving at a sentence that lies outside the range of

reasonable sentences dictated by the facts of the case.” United States v. Irey, 612

F.3d 1160, 1190 (11th Cir. 2010) (quotation omitted).

       Here, Defendant has not shown that his sentence is substantively

unreasonable. The record reflects that the § 3553(a) factors support the upward

variance in this case. The district court primarily focused on one factor in

imposing Defendant’s sentence: the need to protect the public from future injury

caused by Defendant. As noted by the district court, Defendant had an apparent

obsession with guns, as evidenced by his gun-related tattoos, his prior conviction

involving a gun, and the present offense of being a felon-in-possession of a

firearm. The district court was particularly troubled by Defendant’s nine prior

3
  The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
education or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission;
(9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution
to victims. 18 U.S.C. § 3553(a).


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convictions, but most notably his conviction for child neglect based on a child

shooting himself with a gun that Defendant left near the child. Moreover, the

present offense similarly involved reckless conduct related to a firearm, as

illustrated by Defendant’s firing of a gun several times outside of a home with

people inside. In short, Defendant has failed to show that the district court abused

its discretion by imposing a 108-month sentence.

      For the above reasons, Defendant’s conviction and sentence are

AFFIRMED.




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