            Case: 16-17531   Date Filed: 05/08/2017   Page: 1 of 6


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-17531
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 0:16-cr-60185-WJZ-1


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

LAZARO MORA GUTIERREZ,

                                                          Defendant-Appellant.

                       ________________________

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

                               (May 8, 2017)

Before TJOFLAT, HULL and WILSON, Circuit Judges.

PER CURIAM:
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       Lazaro Mora Gutierrez appeals his 12-month and 1-day sentence, after

pleading guilty to obstructing an officer from boarding a vessel in violation of 18

U.S.C. § 2237(a)(2)(A). 1 Gutierrez, along with ten other migrants from Cuba,

sought to enter the United States near Dania Beach, Florida. They were spotted by

a Coast Guard vessel which, with the aid of Customs and Border Protection (CPB)

agents, attempted to detain the migrants at sea. The migrants violently resisted this

attempt, and their homemade vessel eventually reached the Florida shore. Shortly

thereafter, Gutierrez was arrested by local law enforcement officers who were

awaiting the arrival of the migrants. On appeal, Gutierrez argues that the District

Court clearly erred by enhancing his sentence under § 2A2.4(b)(1)(B) of the

United States Sentencing Guidelines for the possession and threatened use of a

dangerous weapon. He concedes he possessed a knife at the time of his arrest, but

contends there was no evidence he ever threatened to use the weapon.

       We review a district court’s interpretation of the sentencing guidelines and

its application of the guidelines to the facts de novo. United States v. Amedeo, 370

F.3d 1305, 1312 (11th Cir. 2004). Findings of fact by the trial court at sentencing,

however, are reviewed only for clear error. United States v. Renick, 273 F.3d

1009, 1021 (11th Cir. 2001). For a finding to be clearly erroneous, we “must be

       1
         Before entering a plea agreement Gutierrez underwent a four day trial in which the jury
had difficulty reaching a unanimous verdict as to one of the two original counts in his
indictment. The District Court subsequently relied on evidence presented at trial during
Gutierrez’s sentencing hearing.
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left with a definite and firm conviction that a mistake has been committed.”

United States v. Foster, 155 F.3d 1329, 1331 (11th Cir. 1998).

      If a defendant challenges the factual basis for his sentence or for the

application of a sentencing enhancement, the government must prove the disputed

fact by a preponderance of the evidence. United States v. Sepulveda, 115 F.3d 882,

890 (11th Cir. 1997). This burden must be satisfied by specific and reliable

evidence. Id. When evidence comes in the form of witness testimony,

determining the credibility of the witness is firmly in the province of the

sentencing court as the factfinder. We thus defer to that court’s credibility

determination unless its finding is “‘contrary to the laws of nature, or is so

inconsistent or improbable on its face that no reasonable factfinder could accept

it.’” United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (quoting

United States v. Eddy, 8 F.3d 577, 580 (7th Cir. 1993)).

      Pursuant to United States Sentencing Guideline § 2A2.4(b)(1), a defendant’s

base offense level will be increased by three levels if “a dangerous weapon

(including a firearm) was possessed and its use was threatened.” U.S.S.G.

§ 2A2.4(b)(1)(B). Gutierrez raises a specific factual objection to the application of

this sentencing enhancement to his case. Although he does not dispute that he

possessed a knife when he abandoned the migrant vessel and made his way to




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shore, he argues the United States presented insufficient evidence to establish he

ever threatened use of the knife. 2

       We disagree and find the government provided sufficient evidence to justify

the District Court’s application of a three level sentencing enhancement under

§ 2A2.4(b)(1)(B). During the initial trial proceeding, Josh Kessler, a road patrol

deputy employed by the Broward County Sheriff’s Department, offered testimony

indicating Gutierrez leapt off the migrant boat in shallow water brandishing the

knife in an overhand motion before holding the weapon against his stomach.

Deputy Kessler further testified Gutierrez only relinquished the knife upon being

struck by munitions fired from a nonlethal bean bag launcher after making landfall.

Although Gutierrez subsequently provided a contrary account of these events to

law enforcement, the District Court’s decision to impose a § 2A2.4(b)(1)(B)

enhancement “based on testimony and evidence offered at trial” represents an

implicit decision to credit Deputy Kessler’s testimony over Gutierrez’s contrary

statements. The District Court’s determination of witness credibility is entitled to

significant deference in this context, and we do not find this decision so

“unbelievable” as to warrant reversal. See Ramirez-Chilel, 289 F.3d at 749.

       2
         The parties spend considerable time arguing over whether the application of §
2.A2.4(b)(1)(B) could also be justified by the Gutierrez’s alleged possession and threatened use
of a machete while he was on board the migrant vessel from Cuba. However, the District Court
did not rely on this alternative ground to justify application of the sentencing enhancement, and
so we do not consider these arguments. Further, Gutierrez does not challenge the substantive
reasonableness of his sentence, and has accordingly waived the issue. See United States v. Levy,
379 F.3d 1241, 1242 (11th Cir. 2004).
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       Furthermore, the circumstances surrounding Gutierrez’s apprehension, as

affirmed in his plea agreement, provide strong evidence in support of the District

Court’s decision to credit Deputy Kessler’s testimony. Gutierrez and the other

migrants fleeing Cuba by boat had been engaged in a desperate fight with law

enforcement officials seeking to prevent them from reaching shore. During the

encounter, the migrants behaved aggressively, threatening to harm themselves with

knives and machetes as CPB agents attempted to board the vessel. 3 The migrants

also used machetes to cut away ropes and netting deployed by CPB officers in their

attempts to stop the boat short of reaching land. These circumstantial factors

support the District Court’s decision to credit Deputy Kessler’s testimony

regarding Gutierrez’s threatened use of the knife he carried.

        Gutierrez repeatedly argues the evidence adduced at trial only proves he

possessed a dangerous weapon. This argument misses the mark. Deputy Kessler’s

testimony, particularly in light of the extremely volatile circumstances surrounding

Gutierrez’s apprehension, provided a strong basis for the District Court’s factual

determination that Gutierrez threatened the use of his knife before being disarmed

by law enforcement officials. Certainly we are not left with “a definite and firm

conviction that a mistake has been committed [by the District Court].” Foster, 155

F.3d at 1331. Because specific and reliable evidence supported the application of

       3
         Gutierrez himself claimed he would rather die than return to Cuba while being
interviewed by federal officials following his apprehension.
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§ 2A2.4(b)(1)(B) to Gutierrez’s sentence, the District Court did not clearly err in

imposing the enhancement.

      AFFIRMED.




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