          Case: 16-16125   Date Filed: 01/25/2018   Page: 1 of 12


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-16125
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 7:15-cr-00022-HL-TQL-1

UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

TAVARIS LAVON ROLLE,
a.k.a. Taz,
a.k.a. T,

                                                        Defendant-Appellant.

                      ________________________

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

                           (January 25, 2018)

Before WILLIAM PRYOR, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Tavaris Rolle appeals the 120-month, within-guideline sentence of

imprisonment he received after pleading guilty to possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1).        Rolle raises several

challenges to the calculation of his guideline range, including whether he

possessed at least four firearms, see U.S.S.G. § 2K2.1(b)(1)(A), whether he

possessed a firearm in connection with another felony offense, see id.

§ 2K2.1(b)(6)(B), and whether the government proved that he had a prior state

felony conviction for sale of cocaine in 2003. After careful review, we affirm.

                                         I.

      By August 2012, Rolle was being investigated by law enforcement for

selling controlled substances from a residence in Abel, Georgia.          After an

informant purchased cocaine from Rolle at the residence on August 3, law

enforcement obtained and executed a search warrant the following week. During

that search, officers found, among other things, drugs, over $10,000 in currency, a

Glock .40-caliber pistol, and ammunition. One week later, after learning that Rolle

possibly hosted dog fights at the residence, officers searched the surrounding area

and came across a red cooler, which held a backpack containing 366 grams of

marijuana and four additional firearms loaded with ammunition.




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      After the initial search, state authorities arrested Rolle on state charges and a

state probation violation. His probation was revoked and he remained in state

custody until September 2014, when he was released on parole.

      In November 2015, a federal grand jury indicted Rolle on one count of

possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1),

and he was arrested soon after. The indictment specifically charged him with

possession of the four firearms that were found in the red cooler outside of the

residence in 2012. In April 2016, a grand jury returned a superseding indictment

charging Rolle with additional offenses, including possession with intent to

distribute cocaine and marijuana, in violation of 21 U.S.C. § 841(a)(1), possession

of the same four firearms in furtherance of a drug-trafficking crime (possession

with intent to distribute marijuana), in violation of 18 U.S.C. § 924(c)(1)(A), and

use of a firearm during and in relation to a drug-trafficking crime (possession with

intent to distribute cocaine), in violation of § 924(c)(1)(A).

      Shortly after he was arraigned on the superseding indictment, Rolle agreed

to plead guilty to the § 922(g)(1) offense contained in the original indictment,

without the benefit of a written agreement.        During the plea colloquy, Rolle

admitted that he possessed the four firearms charged in the indictment.           The

government represented at the plea hearing that it would move to dismiss the

superseding indictment at sentencing. It did not do so, however.


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       Before sentencing, a U.S. Probation officer prepared Rolle’s presentence

investigation report (“PSR”) and ultimately recommended a guideline range of 120

months of imprisonment (reduced from 121 to 151 months due to the statutory

maximum) based on a total offense level of 29 and a criminal history category of

IV. The offense level included three enhancements relevant to this appeal: first,

an enhanced base offense level of 24 based on two prior state convictions for a

felony controlled-substance offense (sale of cocaine), U.S.S.G. § 2K2.1(a)(2);

second, a 2-level increase for possession of between three and seven firearms, id.

§ 2K2.1(b)(1)(A); and third, a 4-level increase for possession of a firearm in

connection with another felony offense, id. § 2K2.1(b)(6).

       Rolle filed objections to the base-offense-level calculation and to the in-

connection-with enhancement. As for the base offense level, Rolle maintained that

the government failed to prove that he pled guilty to and was convicted of one of

the two sale-of-cocaine offenses (the “2003 conviction”). 1                     As for the

§ 2K2.1(b)(6) enhancement, he argued that there was no evidence to support it,

since the firearms were found outside of the residence while he was in custody.

       At sentencing, the district court heard testimony from a law-enforcement

agent involved in the search of the residence and considered state-court documents
       1
          Rolle also argued below that his prior convictions should not have counted because
adjudication of guilt was withheld under the Georgia First Offender Act, but he has abandoned
that issue on appeal by failing to raise it in his briefing to this Court. See United States v.
Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (issues not briefed on appeal are deemed
abandoned).
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submitted by the government both before and during the sentencing hearing.

Based on these records and the agent’s testimony, the district court overruled

Rolle’s objections, adopted the PSR’s recommendations, and then sentenced Rolle

to the statutory maximum of 120 months of imprisonment. Rolle now brings this

appeal.

                                              II.

       Before addressing the merits of the appeal, we pause to consider the

significance of the superseding indictment. We asked the parties to address this

issue due to its potential effect on our jurisdiction. The government submits that

the superseding indictment remains pending but that we have jurisdiction because

Rolle’s appeal is from a final judgment on the original indictment. Rolle responds

that the superseding indictment is no longer pending, but he agrees with the

government that, even if it is, we have jurisdiction over this appeal.

       Our review indicates that the superseding indictment against Rolle remains

pending before the district court. “A superceding indictment may be returned at

any time before a trial on the merits[,]” and “two indictments may be outstanding

at the same time for the same offense if jeopardy has not attached to the first

indictment.” United States v. Stricklin, 591 F.2d 1112, 1115 n.1 (5th Cir. 1979)2;

see United States v. Del Vecchio, 707 F.2d 1214, 1216 (11th Cir. 1983) (same).

       2
        This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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Under Rule 48, Fed. R. Crim. P., 48(a), the government must obtain leave of court

before dismissing an indictment. Because the government did not move to dismiss

the superseding indictment against Rolle, it remains pending below.

      Although the superseding indictment remains pending, we agree with both

parties that we have jurisdiction over this appeal. Rolle has been convicted and

sentenced to a term of imprisonment on the original indictment. See United States

v. Muzio, 757 F.3d 1243, 1248 (11th Cir. 2014) (holding, where the issue of

restitution remained unresolved, that the criminal judgment was “final for purposes

of appeal because it sentenced [the defendant] to a term of imprisonment”); id. at

1249 (“The Court has . . . plainly held that the sentence is the judgment for

purposes of permitting appeal.”). The judgment sentencing Rolle to a term of

imprisonment is sufficiently final to support our exercise of jurisdiction.

      Furthermore, the government represents that, as reflected in its comments

during the plea hearing, it does not intend to prosecute Rolle on the charges set

forth in the superseding indictment. And it advises that, if we find that we lack

jurisdiction in this appeal, it “will move in the district court for dismissal of the

five counts of the superseding indictment as to Rolle.” We find that dismissal of

the superseding indictment is not necessary before we may resolve this appeal, but

we expect that the government will so move after the resolution of this appeal.

Accordingly, we turn to the merits of Rolle’s appeal.


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                                         III.

      When considering the district court’s resolution of guideline issues, we

review legal issues de novo, factual findings for clear error, and the court’s

application of the sentencing guidelines to the facts with “due deference.” 18

U.S.C. § 3742(e); United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010);

United States v. Williams, 340 F.3d 1231, 1238–39 (11th Cir. 2003) (holding that

the deference that is due depends on the nature of the question presented). A

district court’s choice between two reasonable constructions of the evidence cannot

be clearly erroneous. United States v. Almedina, 686 F.3d 1312, 1315 (11th Cir.

2012). We will not disturb a district court’s factual findings unless we are firmly

convinced that a mistake has been made. Id.

      We review for clear error the district court’s determination that Rolle

possessed a firearm “in connection with” another felony offense because it

involves application of a legal standard to a specific fact pattern. See United States

v. Carillo-Ayala, 713 F.3d 82, 88 (11th Cir. 2013) (“[W]e generally review a

district court’s application of the [in-connection-with] standard to ‘a detailed fact

pattern’ for clear error.”); United States v. Whitfield, 50 F.3d 947, 949 & n.8 (11th

Cir. 1995) (“[T]he district court’s factual determination that the weapon was used

or possessed ‘in connection with’ the burglaries was not clearly erroneous.”

(emphasis omitted)).


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      The district court may base its sentencing determinations on the defendant's

admissions during his guilty plea, undisputed statements in the PSR, or evidence

presented at the sentencing hearing. United States v. Wilson, 884 F.2d 1355, 1356

(11th Cir. 1989). The government bears the burden of establishing the facts

necessary to support a sentencing enhancement by a preponderance of the

evidence. Almedina, 686 F.3d at 1315. “The district court must ensure that the

Government carries its burden by presenting reliable and specific evidence.” Id.

                                        IV.

      Rolle argues that the district court erred in calculating his guideline range in

three ways. We address each in turn.

                                         A.

      Rolle first argues that the government failed to prove the existence of the

2003 conviction for felony sale of cocaine. That conviction both added criminal-

history points and was used to enhance his base offense level under U.S.S.G.

§ 2K2.1(a)(2), which provides for an enhanced base offense level of 24 if the

defendant has “at least two [prior] felony convictions of either a crime of violence

or a controlled substance offense.”

      In determining the existence of a prior conviction, a sentencing court may

use any “sufficiently reliable” information to support its finding, regardless of its

admissibility at trial. United States v. Wilson, 183 F.3d 1291, 1301 (11th Cir.


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1999). The Federal Rules of Evidence do not apply to sentencing proceedings.

Fed. R. Evid. 1101(d)(3).

      Here, the government produced substantial and sufficiently reliable evidence

indicating that Rolle had two prior Georgia convictions, including the 2003

conviction, for sale of cocaine, which is a felony. The documents submitted by the

government—including arrest reports, charging and plea documents, a judgment of

conviction, and related orders—establish with reasonable certainty that Rolle was

arrested on two different occasions for distinct acts of selling cocaine and that he

pled guilty to both offenses. The fact that the district court did not formally admit

these documents into evidence is irrelevant because the sentencing proceeding is

not a trial and it is not governed by the Federal Rules of Evidence. Accordingly,

the district court did not clearly err in determining that Rolle had two prior

convictions for sale of cocaine. As a result, the court properly included both

convictions, included the 2003 conviction, when calculating his guideline range.

                                         B.

      Rolle next contends that the evidence failed to show that he possessed a

firearm “in connection with” another felony offense. He maintains that he was in

state custody at the time the weapons were found and that “there was no evidence

linking Mr. Rolle to the firearms.”




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      Section 2K2.1(b)(6)(B) provides for a four-level enhancement where the

defendant “used or possessed any firearm or ammunition in connection with

another felony offense.”      U.S.S.G. § 2K2.1(b)(6)(B).        Application Note 14

elaborates that subsection (b)(6)(B) applies “if the firearm or ammunition

facilitated, or had the potential of facilitating, another felony offense.” Id. § 2K2.1

cmt. n.14(A). The Guidelines specify that “in the case of a drug trafficking offense

in which a firearm is found in close proximity to drugs,” the application of

subsection (b)(6)(B) “is warranted because the presence of the firearm has the

potential of facilitating another felony offense.” Id. § 2K2.1 cmt. n.14(B).

      As we explained in Carillo-Ayala, our case law is consistent with

Application Note 14 in the commentary to § 2K2.1 because we have “consistently

recognized that a firearm which facilitates or has the potential to facilitate an

offense is possessed ‘in connection with’ that offense.” Carillo-Ayala, 713 F.3d at

93 (applying a different guideline, U.S.S.G. § 5C1.2(a)(2), but broadly reviewing

our “cases interpreting guidelines that require a ‘connection’”). We have stated

that “[a] firearm found in close proximity to drugs or drug-related items simply

‘has’—without any requirement for additional evidence—the potential to facilitate

the drug offense.” Id. at 92. That is because “[a] firearm in proximity to drugs . . .

has the potential to be used as a weapon.” Id. at 95–96.




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      Here, the district court did not clearly err in finding that Rolle possessed a

firearm in connection with another felony offense for purposes of the four-level

enhancement under § 2K2.1(b)(6)(B).           Agent Jason Seacrist testified at the

sentencing hearing that law-enforcement officers found four loaded firearms and

366 grams of marijuana together in a red cooler outside of the residence where

Rolle was arrested for selling controlled substances. Seacrist also testified that

drugs, money, and another firearm were found inside the residence.

      Rolle claims that “there was no evidence that [he] possessed the firearms in

the cooler.” But he admitted to that exact fact during his guilty plea. The court

was permitted to rely on that admitted conduct at sentencing. See Wilson, 884 F.2d

at 1356. Combined with the other evidence before the district court, Rolle’s

constructive possession of loaded firearms that were found in close proximity to a

large amount of marijuana was sufficient for the court to reasonably conclude that

Rolle possessed the firearms in connection with a felony drug-trafficking offense.

See Carillo-Ayala, 713 F.3d at 95–96; U.S.S.G. § 2K2.1 n.14(A).

                                         C.

      Finally, Rolle argues for the first time on appeal that the district court erred

in applying a two-level enhancement under U.S.S.G. § 2K2.1(b)(1)(A) based on a

finding that the offense involved between three and seven firearms. Because Rolle

admitted during his guilty plea that he unlawfully possessed four firearms, in


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violation of 18 U.S.C. § 922(g)(1), he cannot show that the court erred, plainly or

otherwise, in relying on that admission to apply the enhancement under

§ 2K2.1(b)(1)(A). The fact that the court did not specifically reference Rolle’s

admission is largely irrelevant, because “the record clearly reflects the basis for the

enhancement and supports it.” United States v. Taylor, 88 F.3d 938, 944 (11th Cir.

1996) (holding that, even where the court is required to make “individuaized

findings” to support an enhancement, a remand is not necessary where “the record

clearly reflects the basis for the enhancement and supports it”).

                                          V.

      For the reasons stated, the district court did not err in calculating Rolle’s

guideline range. Because Rolle does not otherwise challenge the reasonableness of

his 120-month sentence, we affirm.

      AFFIRMED.




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