                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 09-13665                ELEVENTH CIRCUIT
                                                               APRIL 23, 2010
                           Non-Argument Calendar
                                                                JOHN LEY
                         ________________________
                                                                 CLERK

                   D. C. Docket No. 05-00324-CR-5-CAP-1

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

FREDDIE SANDOVAL,
a.k.a. Enano,

                                                           Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________
                              (April 23, 2010)

Before BLACK, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

     In a previous appeal, we vacated Freddie Sandoval’s sentence of 180
months’ imprisonment because the district court had improperly calculated the

guidelines range, and remanded for resentencing. See United States v. Sandoval,

325 Fed. Appx. 828 (11th Cir. 2009) (unpublished). Sandoval now appeals the

sentence imposed at resentencing.

       Sandoval was a member of the street gang “Sur-13.” He and sixteen others

were charged with conspiracy to violate the Racketeer and Influenced Corrupt

Organizations Act (“RICO”), 18 U.S.C. § 1962(d), and various drug-related

offenses.1 The indictment alleged numerous overt acts in furtherance of the

conspiracy including a 1999 drive-by shooting targeting a rival gang member

(‘overt act 8”). Specifically, the indictment alleged that Sandoval and another

member of Sur-13 went to the rival’s apartment and shot multiple times into the

apartment’s living room window and a nearby car. For his participation, Sandoval

was charged under state law with aggravated assault.2

       On remand, the district court recalculated the range and imposed a sentence

of 168 months, which was within the new guidelines range. On appeal, Sandoval

argues that the district court erred by including the drive-by shooting in overt act 8



       1
         We discussed the activities of the Sur-13 members more fully in United States v.
Flores, 572 F.3d 1254, 1259-61 (11th Cir. 2009), cert. denied, 130 S.Ct. 568 (2009).
       2
          Under Georgia law, a person commits an aggravated assault when he, inter alia,
assaults with intent to murder. O.C.G.A. § 16-5-21(a)(1). The statutory maximum sentence for
aggravated assault is 20 years’ imprisonment. Id. § 16-5-21(b).

                                               2
when it calculated his offense level because aggravated assault is not a RICO

predicate act under 18 U.S.C. § 1961(1).

      We review the district court’s application of the sentencing guidelines de

novo, and its findings of fact for clear error. United States v. Baker, 432 F.3d

1189, 1253 (11th Cir. 2005). We review de novo issues involving statutory

interpretation. United States v. Ambert, 561 F.3d 1202, 1205 (11th Cir. 2009). At

sentencing, a district court may base its factual findings on undisputed statements

in the presentence investigation report. United States v. Wilson, 884 F.2d 1355,

1356 (11th Cir. 1989).

      Pursuant to U.S.S.G. § 2E1.1(a), a defendant’s base offense level for a RICO

offense is the greater of 19 or the offense level applicable to the underlying

racketeering activity. U.S.S.G. § 2E1.1(a); United States v. Farese, 248 F.3d 1056,

1059 (11th Cir. 2001). The RICO statute sets forth an exclusive list of racketeering

activities, which includes “any act or threat involving murder” chargeable under

state law and punishable by imprisonment for more than one year. 18 U.S.C.

§ 1961(1). An offense that does not constitute a RICO predicate offense cannot be

the basis for the determination of a defendant’s base offense level. See U.S.S.G.

§ 2E1.1(a)(2). Assault is not listed as a racketeering activity in § 1961(1). 18

U.S.C. § 1961(1). But we have recognized that attempted murder is a predicate



                                           3
activity for RICO purposes. See e.g., United States v. Watchmaker, 761 F.2d 1459,

1475 (11th Cir. 1985).

      Here, we conclude that the district court properly determined Sandoval’s

guideline offense level. There was no error in the court’s finding that overt act 8 –

shooting into an occupied apartment at a rival gang leader – was attempted murder

and thus involved the threat of murder for purposes of 18 U.S.C. § 1961(1).

Moreover, aggravated assault under state law can involve intent to murder,

O.C.G.A. § 16-5-21(a)(1), and thus would constitute a predicate offense under

§ 1961. Accordingly, we affirm.

      AFFIRMED.




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