                                                                    [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                                                       DECEMBER 19, 2011
                                               No. 10-14907
                                           Non-Argument Calendar           JOHN LEY
                                                                            CLERK
                                         ________________________

                          D.C. Docket No. 8:10-cr-00180-SDM-TGW-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                                  versus

ANTONIO RICKY BAILEY,

llllllllllllllllllllllllllllllllllllll                              ll Defendant-Appellant.

                                     ________________________

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

                                            (December 19, 2011)

Before MARCUS, MARTIN and BLACK, Circuit Judges.

PER CURIAM:
      Antonio Ricky Bailey appeals his conviction and 63-month sentence for

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

Bailey asserts four issues on appeal, which we address in turn. After review, we

affirm his conviction and sentence.

                                          I.

      Bailey contends the district court erred in denying his motion for judgment

of acquittal because the evidence was insufficient to prove he possessed a firearm,

as the trial evidence against him was contradictory and only “fit together” through

unreasonable inferences or speculation.

      We review de novo a district court’s denial of a motion for judgment of

acquittal on sufficiency of evidence grounds. United States v. Friske, 640

F.3d 1288, 1290-91 (11th Cir. 2011). In making this determination, “we consider

the evidence in the light most favorable to the Government, drawing all reasonable

inferences and credibility choices in the Government’s favor.” Id. The evidence

need not be inconsistent with every reasonable hypothesis except that of guilt,

provided a reasonable trier of fact could find the evidence established the

defendant’s guilt beyond a reasonable doubt. United States v. Merrill, 513 F.3d

1293, 1299 (11th Cir. 2008).




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      To prove a violation of 18 U.S.C. § 922(g)(1), the prosecution must prove

“(1) that the defendant was a convicted felon, (2) that the defendant was in

knowing possession of a firearm, and (3) that the firearm was in or affecting

interstate commerce.” United States v. Deleveaux, 205 F.3d 1292, 1296-97 (11th

Cir. 2000). To establish the knowing-possession element “[t]he prosecution need

show only that the defendant consciously possessed what he knew to be a

firearm.” Id. at 1298.

      Bailey’s possession of the firearm is the only element in dispute.

Regardless of whether Bailey brandished a firearm at Deputies Meiczinger and

Hallberg-Calebro, the evidence introduced at trial supported the jury’s necessary

finding that Bailey knowingly possessed the firearm. Zakera Southall, Tawaina

Stanley, and Charlene Stanley testified Bailey ran into the apartment and went to

the closet, placing something inside. Southall and Tonya Drake testified the

firearm and drugs found in the closet did not belong to anyone in the apartment.

This testimony allowed the jury to reasonably infer Bailey possessed the firearm

and drugs and placed them in the closet, and, thus, was guilty of being a felon in

possession of a firearm under § 922(g)(1). Although Bailey argues Southall’s and

Tawaina Stanley’s testimony was not credible, this is a matter determined by the

jury. See United States v. Thompson, 473 F.3d 1137, 1142 (stating credibility

                                         3
questions are answered by the jury, and we will assume the jury answered them all

in a manner that supports the verdict). Because a reasonable juror could have

concluded from the evidence that Bailey was guilty of the offense beyond a

reasonable doubt, the district court did not err in denying his motion for judgment

of acquittal.

                                         II.

      While acknowledging our precedent forecloses his argument, Bailey argues

that 18 U.S.C. § 922(g) is unconstitutional both facially and as applied to him

because it fails to require proof of a substantial nexus between the offense and

interstate commerce. We have held that § 922(g) is not a facially unconstitutional

exercise of Congress’s power under the Commerce Clause because it contains an

express jurisdictional requirement, i.e., the requirement that the felon possess a

firearm “in or affecting commerce.” United States v. Jordan, 635 F.3d 1181, 1189

(11th Cir. 2011). “The jurisdictional requirement is satisfied when the firearm in

question has a ‘minimal nexus’ to interstate commerce,” and § 922(g) is not

unconstitutional as applied to a defendant where the government establishes the

firearm in question traveled in interstate commerce. Id. “We are bound by prior

panel decisions unless or until we overrule them while sitting en banc, or they are

overruled by the Supreme Court.” Id.

                                          4
      Thus, Bailey’s argument that § 922(g) is facially unconstitutional is

foreclosed by our binding precedent. Bailey’s as-applied challenge to § 922(g) is

also unavailing because the evidence established his possession of a firearm had a

minimal nexus to interstate commerce.

                                         III.

      Bailey argues his sentence is procedurally unreasonable because the district

court erred in applying a four-level enhancement to his base offense level for

possessing a firearm in connection with another felony offense, pursuant to

U.S.S.G. § 2K2.1(b)(6).

      The district court is obligated to correctly calculate the applicable

Guidelines range. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). A

sentence may be procedurally unreasonable if, among other things, the district

court failed to accurately calculate the Guidelines range. Gall v. United States,

552 U.S. 38, 51 (2007).

      We review a district court’s application and interpretation of the Guidelines

de novo, and its factual findings for clear error. United States v. Rhind, 289 F.3d

690, 693 (11th Cir. 2002). A district court’s determination the defendant used a

firearm in connection with another felony offense is a factual finding reviewed




                                          5
only for clear error. See United States v. Whitfield, 50 F.3d 947, 949 & n.8 (11th

Cir. 1995).

       In calculating the Guidelines range for a firearm-possession offense under

§ 922(g), a four-level increase to the base offense level is required if “the

defendant used or possessed any firearm or ammunition in connection with

another felony offense.” U.S.S.G. § 2K2.1(b)(6). The Application Notes to

§ 2K2.1 clarify that § 2K2.1(b)(6) “appl[ies] if the firearm or ammunition

facilitated, or had the potential of facilitating, another felony offense . . . .”

U.S.S.G. § 2K2.1, comment. (n.14(A)). “Another felony offense” is defined as

“any federal, state, or local offense . . . punishable by imprisonment for a term

exceeding one year, regardless of whether a criminal charge was brought, or a

conviction obtained.” Id., comment. (n.14(C)).

       The district court did not clearly err in concluding the Government had met

its burden to establish Bailey possessed a firearm in connection with the felony

offense of possession of crack cocaine. See United States v. Kinard, 472 F.3d

1294, 1298 (11th Cir. 2006) (stating the government bears the burden to establish

by a preponderance of the evidence the facts necessary to support a sentencing

enhancement). First, Bailey’s possession of crack cocaine constituted “another

felony offense” because the application notes to § 2K2.1(b)(6) specifically include

                                             6
state offenses punishable by a term of imprisonment exceeding one year. Because

possession of a controlled substance is an offense punishable by a five-year

maximum term of imprisonment under Florida law, Bailey’s possession of crack

cocaine constituted a felony. See Fla. Stat. §§ 775.082(3)(d) (providing statutory

maximum sentence for a third-degree felony), 893.13(6)(a) (providing possession

of a controlled substance is a third-degree felony).

      Second, the evidence demonstrated Bailey’s firearm had the potential to

facilitate his continued possession of crack cocaine. In imposing the

enhancement, the district court noted “possessing [cocaine], and continuing to

possess it with a reasonable degree of confidence in [a] certain context is certainly

facilitated by a firearm,” and the awareness in others that he had a firearm could

deter “aspiring possessors” of Bailey’s drugs in this circumstance. The court

found by clear and convincing evidence the firearm was “for the protection of and

in furtherance in that context of [Bailey’s] possession of the cocaine.” Because

the firearm could have protected Bailey from “aspiring possessors” of his crack

cocaine in the dangerous, high-crime neighborhood he was in, it had the potential

to facilitate his possession of crack cocaine, which is all that is required for the

§ 2K2.1(b)(6) enhancement to apply. Therefore, the district court did not clearly

err in finding Bailey possessed the firearm to protect his drugs, and, thus, did not

                                           7
err in applying the § 2K2.1(b)(6) enhancement. Accordingly, Bailey’s sentence is

procedurally reasonable.

                                              IV.

       Finally, Bailey argues his sentence is substantively unreasonable. Once we

determine the sentence is procedurally sound, we examine whether the sentence

was substantively unreasonable in light of the totality of the circumstances and the

18 U.S.C. § 3553(a) factors.1 Gall, 552 U.S. at 51. The party challenging the

sentence bears the burden to show it is unreasonable based on the record and the

§ 3553(a) factors. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir.), cert.

denied, 131 S. Ct. 674 (2010).

       District courts are generally required to apply the Guidelines in effect on the

sentencing date. 18 U.S.C. § 3553(a)(4)(A)(ii). Moreover, the Guidelines were

intended to apply as a “cohesive whole” and not “in a piecemeal fashion,” so a




       1
           The district court is required to impose a sentence “sufficient, but not greater than
necessary, to comply with the purposes” listed in 18 U.S.C. § 3553(a), including the need to
reflect the seriousness of the offense, promote respect for the law, provide just punishment for
the offense, deter criminal conduct, and protect the public from the defendant’s future criminal
conduct. 18 U.S.C. § 3553(a)(2). In imposing a particular sentence, the court must also consider
the nature and circumstances of the offense, the history and characteristics of the defendant, the
kinds of sentences available, the applicable Guidelines range, the pertinent policy statements of
the Sentencing Commission, the need to avoid unwarranted sentencing disparities, and the need
to provide restitution to victims. Id. § 3553(a)(1), (3)-(7).

                                                8
defendant cannot “mix and match amended provisions” to achieve a more

favorable sentence. United States v. Lance, 23 F.3d 343, 344 (11th Cir. 1994).

       Effective November 1, 2010, the Sentencing Commission eliminated

§ 4A1.1(e)’s “recency” points provision. U.S.S.G. App. C, amend. 742. Under

the prior version of § 4A1.1(e), if the defendant committed the instant offense less

than two years after release from imprisonment, two points were added to his

criminal history calculation. U.S.S.G. § 4A1.1(e) (2009). The Sentencing

Commission did not make Amendment 742 retroactive. See U.S.S.G. § 1B1.10(c)

(listing retroactive Guidelines amendments).

      Bailey has not met his burden of showing his sentence was substantively

unreasonable in light of the record and the § 3553(a) factors. The district court

was required to apply the Guidelines in effect at the time of Bailey’s sentencing,

and could not apply a more favorable provision from the forthcoming Guidelines

that were not yet in effect. See Lance, 23 F.3d at 344. Moreover, Bailey does not

point to a prosecuted or convicted individual who is similarly situated to him and

received a disparate sentence, and, thus, there is no unwarranted sentencing

disparity. See United States v. Spoerke, 568 F.3d 1236, 1252 (11th Cir. 2009)

(explaining to establish an unwarranted sentencing disparity exists, the defendant




                                          9
must show he is similarly situated to other similarly situated defendants who

received lower sentences).

      Further, the court imposed a sentence within the advisory Guidelines range,

and we ordinarily expect such within-Guidelines sentences to be reasonable. See

United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (explaining although we

do not automatically presume a within-Guidelines sentence to be reasonable, we

ordinarily expect such a sentence to be so). Considering Bailey’s criminal history

and the nature and circumstances of his offense, the sentence was adequately

supported by the § 3553(a) factors. The district court was concerned by Bailey’s

criminal history, in particular the incident where police found him in possession of

a firearm, a black ski mask, and duct tape. The court also considered the

circumstances of the instant offense, saying that Bailey had “gratuitously

endangered” the individuals within the apartment. Under these circumstances, the

district court did not abuse its discretion in determining that the § 3553(a) factors

warranted a sentence at the high end of the advisory range. Accordingly, Bailey’s

sentence is not substantively unreasonable.

                                          V.

      We conclude (1) the district did not err in denying Bailey’s motion for

judgment of acquittal because the evidence was sufficient to prove that he

                                          10
possessed a gun, (2) 18 U.S.C. § 922(g) is not unconstitutional; (3) the district

court did not err in applying an enhancement for possession of a firearm in

connection with a felony offense; and (4) Bailey’s 63-month sentence is

reasonable. Thus, we affirm Bailey’s conviction and sentence.

      AFFIRMED.




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