                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________           FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-13072         ELEVENTH CIRCUIT
                                   Non-Argument Calendar        MAY 9, 2012
                                 ________________________        JOHN LEY
                                                                  CLERK
                           D.C. Docket No. 1:09-cr-00152-WS-M-1



UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                    Plaintiff-Appellee,


                                            versus


LARRY DALE MCCOY,

llllllllllllllllllll                                              lDefendant-Appellant.

                                ________________________

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

                                        (May 9, 2012)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
      Larry Dale McCoy appeals his convictions and total fifty-one-month

sentence for knowing and willful sale of firearms without making required

records, in violation of 18 U.S.C. § 922(b)(5); making false entry in records by a

Federal Firearms Licensee, in violation of 18 U.S.C. § 922(m); and sale of a

firearm and ammunition to a convicted felon, in violation of 18 U.S.C.

§ 922(d)(1). First, McCoy argues that he was denied his Sixth Amendment right

to an impartial jury. Second, McCoy argues that he was denied his Sixth

Amendment right to effective assistance of counsel. Third, McCoy argues that the

government failed to prove the charges in the superceding indictment beyond a

reasonable doubt. Fourth, McCoy argues that the district court clearly erred in

applying a base offense level of twenty, pursuant to U.S.S.G. § 2K2.1(a)(4)(B), for

an offense involving both a semiautomatic firearm capable of accepting a large

capacity magazine and a conviction under 18 U.S.C. § 922(d). Fifth, McCoy

argues that the district court clearly erred in applying a two-level sentence

enhancement, pursuant to U.S.S.G. § 2K2.1(b)(1)(A), for an offense involving

three to seven firearms. Sixth and finally, McCoy argues that his total fifty-one-

month sentence was procedurally and substantively unreasonable.

                                          I.

      We review issues first raised on appeal under a plain error standard. United

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States v. Chisholm, 73 F.3d 304, 307 (11th Cir. 1996). However, we are

precluded “from reviewing an issue raised on appeal if it has been waived through

the doctrine of invited error.” United States v. Brannan, 562 F.3d 1300, 1306

(11th Cir. 2009) (emphasis in original). The doctrine of invited error applies when

a party induces or invites the district court into making an error, particularly where

it “is not clear that the defendant was prejudiced thereby.” United States v. Lewis,

524 F.2d 991, 992 (5th Cir. 1975). We have held that the doctrine of invited error

applies to at least some communications with a jury in deliberations. United

States v. Cook, 586 F.2d 572, 578 (5th Cir. 1978) (observing that the defendant

could not complain where he approved the court’s note to a deadlocked jury

urging them to continue deliberations).

      Here, McCoy invited any error regarding the court’s decision not to further

investigate the jury’s potential prejudice. On appeal, McCoy broadly characterizes

the issue as whether defense counsel could waive McCoy’s right to an impartial

jury, but a closer review of McCoy’s allegations reveals that the issue here is more

limited: whether McCoy’s counsel could consent to the court’s limited inquiry in

determining that the jury was in fact impartial. Although the record does not

detail any communication between McCoy and his counsel on this issue, McCoy’s

counsel indicated that McCoy consented to dismissing Juror Odom and continuing

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with eleven jurors. McCoy’s counsel then suggested that the court perhaps should

proceed without interviewing the remaining jurors in order to avoid emphasizing

any extrinsic information, and the government and the court agreed.

      Even assuming that McCoy’s counsel could not invite any error on this

issue, the district court did not plainly err in concluding that the remaining jurors

were not unfairly prejudiced by any information potentially shared by Juror Odom.

McCoy did not assert this objection during the court’s discussion of Juror Odom

and, on appeal, McCoy cites no authority establishing that the district court’s

decision to defer to counsel’s wishes and to interview and dismiss only Juror

Odom would amount to plain error.

                                          II.

      We generally do not consider ineffective assistance of counsel claims on

direct appeal because the record typically is insufficiently developed, especially

where the claim was not raised at the district court. See United States v. Bender,

290 F.3d 1279, 1284 (11th Cir. 2002). The Supreme Court has recognized that

there may be rare cases “in which trial counsel’s ineffectiveness is so apparent

from the record” that the issue may be considered on direct appeal. Massaro v.

United States, 538 U.S. 500, 508, 123 S. Ct. 1690, 1696 (2003). However, this

kind of claim is more appropriately resolved in a habeas corpus proceeding, where

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an evidentiary hearing may be held. United States v. Andrews, 953 F.2d 1312,

1327 (11th Cir. 1992).

      Here, the record does not indicate that McCoy’s counsel was so apparently

and exceptionally ineffective as to warrant review on direct appeal. McCoy did

not raise below the issue of ineffective assistance of counsel, and there was no

opportunity for the district court to develop the factual record for consideration on

appeal. We therefore decline to address this issue.

                                        III.

      We review de novo a district court’s denial of judgment of acquittal on

sufficiency of the evidence grounds. United States v. Browne, 505 F.3d 1229,

1253 (11th Cir. 2007). We “must view the evidence in the light most favorable to

the government and decide whether a reasonable fact finder could have reached a

conclusion of guilt beyond a reasonable doubt.” United States v. Herrera, 931

F.2d 761, 762 (11th Cir. 1991). We will not disturb a jury verdict “if any

reasonable construction of the evidence would have allowed the jury to find the

defendant guilty beyond a reasonable doubt.” Id. The “evidence need not be

inconsistent with every reasonable hypothesis except guilt, and the jury is free to

choose between or among the reasonable conclusions to be drawn from the

evidence presented at trial.” United States v. Hernandez, 896 F.2d 513, 517 (11th

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Cir. 1990).

      In order to convict McCoy on Counts Three, Seven, and Nine, the

government must prove that: (1) McCoy was a federally licensed dealer, (2) who

sold a firearm to a person, and (3) failed to keep the required records. 18 U.S.C.

§ 922(b)(5).

      In order to convict McCoy on Counts Four, Eight, and Ten, the government

must prove that: (1) McCoy was a federally licensed dealer, (2) who knowingly

falsified or knowingly failed to enter or maintain required records. Id. § 922(m).

      Finally, in order to convict McCoy on Count Eleven, the government must

prove that: (1) McCoy sold a firearm or ammunition, (2) to a person indicted for or

convicted of a crime punishable by imprisonment for a term exceeding one year,

(3) of which McCoy knew or had reasonable cause to believe. Id. § 922(d)(1).

      Here, the district court did not err in denying a judgment of acquittal

because the evidence, viewed in the light most favorable to the government,

adequately supports each count of conviction. The parties stipulated that McCoy

was a federally licensed firearms dealer. Despite McCoy’s arguments to the

contrary, the testimony at trial established that he was involved in all three

transactions that led to his convictions. He personally sold a firearm to Blakely

and allowed Henderson to fill out the paperwork in her name; McCoy personally

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suggested that Smith purchase a firearm and put the paperwork in Tinsley’s name;

and McCoy explicitly gave approval for Bridges to purchase a firearm and put the

paperwork in Frazier’s name. These acts are sufficient to support the convictions

on Counts Three, Four, Seven, Eight, Nine, and Ten. See id. § 922(b)(5); id. §

922(m); United States v. Nelson, 221 F.3d 1206, 1209 (11th Cir. 2000).

      As for Count Eleven, testimony at trial established that Smith told McCoy

that Smith probably had an unresolved drug charge. McCoy also knew that

Smith’s application to purchase a firearm had been denied by the FBI. Knowing

this, McCoy still allowed Smith to purchase a firearm. This evidence is adequate

to support the conviction on Count Eleven.

                                         IV.

      The government bears the burden of establishing by a preponderance of the

evidence any facts necessary to support a sentence enhancement. United States v.

Askew, 193 F.3d 1181, 1183 (11th Cir. 1999). However, the defendant’s failure

to object to allegations of fact in a PSI admits those facts for sentencing purposes.

United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006). Sentencing errors

raised for the first time on appeal are reviewed under a plain error standard.

Chisholm, 73 F.3d at 307.

      Section 2K2.1(a)(4)(B) of the Guidelines establishes a base offense level of

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twenty if: (1) “the offense involved a . . . semiautomatic firearm that is capable of

accepting a large capacity magazine” and (2) the defendant “is convicted under 18

U.S.C. § 922(d).” U.S.S.G. § 2K2.1(a)(4)(B). The commentary to this section

defines a qualifying firearm as one with an attached “magazine or similar device

that could accept more than 15 rounds of ammunition.” Id. cmt. 2. Unless

otherwise specified, a convicted defendant’s guideline range is determined on the

basis of all relevant conduct, which includes “all acts and omissions committed,

aided, abetted, counseled, commanded, induced, procured, or willfully caused by

the defendant . . . that occurred during the commission of the offense of conviction

. . . .” Id. § 1B1.3(a)(1)(A). In cases where multiple counts are grouped under

§ 3D1.2(d), relevant conduct includes acts and omissions that were part of the

same course of conduct or scheme as the offense of conviction. Id. § 1B1.3(a)(2).

      Here, we find no reversible error in the district court’s decision to apply a

base offense level of twenty under § 2K2.1(a)(4)(B). McCoy was convicted under

§ 922(d) for the sale to Smith. McCoy did not object to the PSI’s facts

establishing that he sold at least two other large-magazine firearms in strawman

purchases, similar to the Smith purchase. One of these strawman sales resulted in

two convictions, which were grouped with the § 922(d) conviction under § 3D1.2

of the Guidelines. McCoy offers no precedent establishing that § 2K2.1(a)(4)(B)

                                          8
requires that the large capacity firearm be the same firearm as the one that forms

the basis for the § 922(d) conviction.

                                          V.

      Section 2K2.1(b)(1)(A) of the Guidelines provides that the base offense

level is increased by two levels if the offense involved three to seven firearms.

U.S.S.G. § 2K2.1(b)(1)(A). As noted above, relevant conduct includes not only

the offense of conviction, but “all acts and omissions committed, aided, abetted,

counseled, commanded, induced, procured, or willfully caused by the defendant

. . . during the commission of the offense of conviction . . . .” Id.

§ 1B1.3(a)(1)(A). Where multiple counts are grouped, conduct includes acts and

omissions that were part of the same course of conduct or scheme as the offense of

conviction. Id. § 1B1.3(a)(2).

      Here, we find no reversible error in the district court’s decision to apply a

two-level enhancement pursuant to § 2K2.1(b)(1)(A) for an offense involving

three to seven firearms. McCoy was convicted for the improper sale of three

different firearms, and he has cited no authority to support his viewpoint that these

firearms are not relevant to his convictions.

                                          VI.

      We review a defendant’s final sentence for reasonableness under an abuse

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of discretion standard. United States v. Rodriguez, 628 F.3d 1258, 1262 (11th Cir.

2010). As we explained in United States v. Saac, 632 F.3d 1203, 1212 (11th Cir.

2011), this is a two-step analysis. First, we ensure that the district court

committed “no significant procedural error, such as failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id.

      The § 3553(a) factors include: (1) the nature and circumstances of the

offense; (2) the history and characteristics of the defendant; and (3) the need for

the sentence imposed to reflect the seriousness of the offense, to promote respect

for the law, and to adequately deter criminal conduct. 18 U.S.C. § 3553(a). The

court, however, is not required to state on the record that it has explicitly

considered each of the factors or to discuss each factor. United States v. Scott,

426 F.3d 1324, 1329 (11th Cir. 2005).

      Second, in reviewing a sentence for substantive reasonableness, we examine

the totality of the circumstances and determine whether the sentence achieves the

sentencing goals in 18 U.S.C. § 3553(a). Saac, 632 F.3d at 1214. The party

challenging the sentence bears the burden of demonstrating that the district court

abused its discretion by imposing an unreasonable sentence. United States v.

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Alfaro-Moncada, 607 F.3d 720, 735 (11th Cir. 2010).

      Here, McCoy requested that the district court show leniency and impose a

sentence at the low-end of the guideline range. As discussed above, the court did

not err in calculating the Guideline range. The court expressly stated that it had

considered the trial proceedings, the statements of the parties, the Guidelines, and

the § 3553 factors. The court noted that McCoy’s plea of ignorance was

disingenuous and that the number of firearms purchased from McCoy’s shop that

ended up being used in crimes was “absolutely appalling.” Indeed, the high

volume of guns sold by McCoy that were later recovered from crime scenes was

the impetus for investigating McCoy. We discern no abuse of discretion in the

district court’s sentence.

      AFFIRMED.1




      1
             McCoy’s request for oral argument is DENIED.

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