              Case: 17-13757    Date Filed: 10/02/2018   Page: 1 of 4


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 17-13757
                          ________________________

                     D.C. Docket No. 4:17-cr-10006-JEM-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

BENJAMIN MOORE,

                                                             Defendant-Appellant.

                          ________________________

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

                                (October 2, 2018)

Before ROSENBAUM, HULL and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Defendant Benjamin Moore appeals his conviction and 51-month sentence

after pleading guilty to possession of a firearm and ammunition by a convicted
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felon, in violation of 18 U.S.C. § 922(g)(1). Specifically, Defendant Moore

appeals the district court’s denial of his motion to suppress the shotgun and

ammunition and the district court’s application of a four-level enhancement under

the United States Sentencing Guidelines (“U.S.S.G.”) § 2K2.1(b)(6)(B).

      As to Defendant Moore’s motion to suppress, a magistrate judge held an

evidentiary hearing with witnesses, and also multiple video and audio recordings

of the 911 call and the victim’s and officers’ communications at the scene and

inside the residence. The magistrate judge entered findings of fact and conclusions

of law in a detailed report and recommendation (“R&R”), recommending that the

district court deny the motion to suppress. The district court adopted the R&R and

denied Defendant Moore’s motion to suppress. We review the district court’s

denial of a motion to suppress for clear error as to the district court’s findings of

fact and de novo as to the application of the law to those facts, construing the facts

in the light most favorable to the prevailing party in the district court. United

States v. Ramirez, 476 F.3d 1231, 1235-36 (11th Cir. 2007).

      This Court not only has had oral argument and reviewed the record, but also

has reviewed the video and audio recordings. Given the evidentiary hearing and

the detailed findings of fact in the ruling on the motion to suppress and in briefs on

appeal, the parties are fully aware of the facts of this case and we need not recount

them here. After review, with the benefit of oral argument, and given the totality


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of the circumstances of this case, we find no reversible error in the district court’s

denial of Defendant Moore’s motion to suppress.

      As to Defendant Moore’s sentencing claim, we review the district court’s

application and interpretation of the Guidelines de novo, but review its factual

findings for clear error. United States v. Rhind, 289 F.3d 690, 693 (11th Cir.

2002). Section 2K2.1(b)(6)(B) of the United States Sentencing Guidelines

provides that a defendant is subject to a four-level enhancement if he “used or

possessed any firearm or ammunition in connection with another felony offense.”

U.S.S.G. § 2K2.1(b)(6)(B). Possession of a firearm can be actual or constructive.

United States v. Perez, 661 F.3d 568, 576 (11th Cir. 2011). Actual possession of a

firearm exists where the defendant has direct physical control over it. See

Henderson v. United States, 575 U.S. __, __, 135 S. Ct. 1780, 1784 (2015).

Constructive possession exists where the defendant “knowingly has the power or

right, and intention to exercise dominion and control over the firearm.” Perez, 661

F.3d at 576.

      Here, the district court did not clearly err in concluding that Defendant

Moore used or possessed the shotgun in connection with another felony.

Defendant Moore knew that the shotgun was inside the house and intended to later

exercise dominion and control over it. This is supported by Defendant Moore’s

wife’s statements that Defendant Moore several times threatened to shoot her with


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the shotgun and that he hid his gun in the sofa. Defendant Moore resided there

with the victim and the gun was his. Because Defendant Moore had dominion over

the premises where the gun was located and owned the gun, he constructively

possessed the shotgun. Accordingly, we affirm Defendant Moore’s conviction and

sentence.

      AFFIRMED.




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