                                                     [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                      ELEVENTH CIRCUIT
                            No. 11-10049              NOVEMBER 22, 2011
                        Non-Argument Calendar             JOHN LEY
                                                            CLERK
                      ________________________

               D.C. Docket No. 8:10-cr-00261-JSM-TBM-1

UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

IAN BROOK WEIGANT,
a.k.a. Bullet,
                                                        Defendant-Appellant.

                     ________________________

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

                          (November 22, 2011)

Before EDMONDSON, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:
      Ian Brook Weigant appeals his 78-month sentence for unlawful possession

of a firearm or ammunition by a felon in violation of 18 U.S.C. § 922(g)(1). We

affirm.

                                 I. BACKGROUND

      Defendant Weigant pled guilty to a one-count indictment charging him with

possessing a firearm and ammunition while a convicted felon. The firearm listed

in the indictment was a “Glock, model 27, .40 caliber pistol.”

      According to the presentence investigation report (“PSI”), a confidential

informant (“CI”) notified the Bradenton Police Department that on April 26, 2010,

Defendant Weigant asked the CI to drive him to Tampa, Florida, to purchase

drugs. The CI agreed to the trip and, while on the way, Weigant told the CI that

Weigant planned to buy some guns for $200 each from the same people who were

going to sell him the drugs. Weigant purchased three Glock handguns while in

Tampa. Upon returning to Bradenton, Wiegant took two of the Glock handguns

with him but left one Glock under the seat in the CI’s vehicle.

      The next day, government agents found a “baby Glock” handgun in the CI’s

vehicle but left it in the vehicle after inspecting it. At the agents’ instructions, the

CI used his cell phone to allow agents to monitor a conversation in which the CI

advised Weigant that Weigant had left a handgun in the CI’s vehicle. Agents then

                                            2
watched Weigant go to the vehicle to retrieve the handgun.

      On April 29, 2010, the CI forwarded the agents a picture that was taken that

same day or the day before in which Weigant was holding a .308 caliber rifle.

Later that day, agents arrested Weigant near his residence. Agents later searched

Weigant’s home and found the same “baby Glock” handgun retrieved from the

CI’s vehicle. The “baby Glock” was loaded with three rounds. The agents also

discovered a box of ammunition for the handgun and a text message in Weigant’s

cell phone in which he offered to sell the .308 caliber rifle for $800. The agents

never recovered the rifle.

      The PSI assessed Weigant’s base offense level as 20 for his 18 U.S.C.

§ 922(g)(1) offense. The PSI applied: (1) a two-level increase under U.S.S.G.

§ 2K2.1(b)(1)(A) for possessing between three and seven firearms; (2) a four-level

increase under § 2K2.1(b)(4)(B) for obliterating the serial number of a firearm;

(3) a four-level increase under § 2K2.1(b)(6) for intending to use a firearm in

connection with another felony; and (4) a three-level decrease under § 3E1.1(a)

and (b) for acceptance of responsibility and for timely notifying the government of

his intent to plead guilty. The resulting offense level was 27. After assigning

Weigant 25 criminal history points and a criminal history category of VI, the PSI




                                          3
calculated an advisory guidelines sentence of 120 months’ imprisonment.1

       Before sentencing, Weigant objected to the two-level increase and denied

possessing any firearm other than the one for which he was convicted. Weigant

also objected to the four-level increases for obliterating a serial number and for

intending to use the firearm in connection with another felony.

       At sentencing, the government conceded that the four-level increase for

obliterating a serial number should not apply, and the district court sustained the

objection to the four-level increase for intending to use the firearm in connection

with another felony. Weigant also iterated his objection to the guidelines’

sentencing enhancement for possessing between three and seven firearms.

       In response, the government called Detective Gregg Price, who testified that

he had worked regularly with the CI for four years, resulting in approximately ten

arrests. Price had never found the CI to be untruthful, and the CI’s information

was always accurate. The CI called Price after driving Weigant to purchase three

Glock handguns from “some guys in a pickup truck” in Tampa, Florida. Weigant

objected to Price’s testimony about the CI on hearsay grounds unless the



       1
         The guidelines range was 130 to 162 months for an offense level of 27 and a criminal
history category of VI. However, 18 U.S.C. § 924(a)(2) establishes a maximum penalty of ten
years’ imprisonment for a violation of 18 U.S.C. § 922(g). Accordingly, the guidelines sentence
becomes the maximum penalty, or 120 months’ imprisonment. See U.S.S.G. § 5G1.1(a).

                                               4
government planned to call the CI as a witness. However, the district court

overruled the objection.

      The CI told Price that Weigant purchased two regular-sized Glocks and a

“baby Glock,” which was the handgun recovered during the search of Weigant’s

residence. The CI stated that “Mr. Weigant was upset with two people in

Palmetto, Florida, that had ripped him off for drugs, and he was going to kill them

and take a bus out of town.” Detective Price testified that the CI advised him that

Weigant had left one of the handguns, the “baby Glock,” under the passenger seat

of the CI’s vehicle. Several officers met with the CI, located and photographed the

gun, swabbed it for DNA, and returned it to the vehicle.

      Detective Price instructed the CI to confront Weigant about removing the

handgun from the vehicle, while Price listened in through a phone concealed in the

CI’s pocket. Complying with this request, the CI awoke Weigant, who was

staying at the CI’s residence, and stated, “Hey, get up. You left one of your guns

in the car.” Weigant failed to respond, but the CI repeated, “You left one of your

guns in the car. Go get it.” Weigant then exited the house, and several officers

observed Weigant go to the CI’s vehicle, retrieve something from under the

passenger seat, and conceal it under his shirt. Detective Price later executed a

search warrant on the CI’s residence and recovered the handgun.

                                          5
      Detective Price also testified that the CI had, at Price’s request, asked

Weigant about purchasing a firearm. Weigant sent the CI a photograph of himself

holding a modified rifle with the text message that the gun was “a bad mother

fucker.” The CI forwarded the photograph and message to Detective Price. When

arrested the next day, Weigant was wearing the same shorts depicted in the

photograph. The photograph of Weigant posing with the rifle was admitted into

evidence over Weigant’s objection that it was inflammatory and irrelevant because

the rifle was not one of the firearms that he was charged with possessing.

      On cross-examination, Detective Price conceded that the officers recovered

only the baby Glock handgun that Weigant had retrieved from the CI’s vehicle and

that Price had not seen the other two Glock handguns mentioned by the CI.

Additionally, Price could not positively identify when the photograph of Weigant

hold the rifle was taken. Price also testified that the CI had no pending criminal

charges during the time the CI was working for Price on Weigant’s case, but Price

conceded that the CI had been using drugs while working on the case.

      Weigant then took the stand himself and testified that, although he

possessed the baby Glock, he did not possess any other gun. Weigant testified that

he did not purchase the baby Glock, but rather the CI had given it to him. Weigant

also testified that he sent the photograph of the rifle to the CI in response to the

                                           6
CI’s repeated requests to purchase an automatic weapon. However, Weigant

planned to “just keep [the CI’s] money and tell him he was burned.” Weigant

testified that he had “no intentions of giving that weapon up or – or even selling

that weapon.”

      On cross-examination, Weigant testified that the CI had given him the

“baby Glock” handgun but had also asked Weigant for a different gun. On

redirect examination, Weigant clarified that the CI had asked for “an automatic

weapon as compared to what he gave me, the pistol.” The CI gave Weigant the

handgun as a “setup.” Weigant testified that the CI had requested that Weigant

carry the handgun on his person, but Weigant refused. Although he agreed to

remove the handgun from the CI’s vehicle, Weigant testified that the CI placed the

handgun in a briefcase containing Weigant’s belongings.

      After hearing the testimony of Detective Price and Weigant, the district

court found that Weigant “did possess three or more firearms” and overruled his

objection. With certain exceptions not relevant to this appeal, the district court

accepted “the other factual statements and guideline applications in the

presentence report as its findings of fact.” Based on a total offense level of 19 and

a criminal history category of VI, the district court calculated the advisory

guidelines range as 63 to 78 months’ imprisonment. Following Weigant’s

                                          7
allocution and argument in mitigation, the district court sentenced Weigant to 78

months’ imprisonment. After the pronouncement of sentence, Weigant raised no

new objection “[o]ther than those previously stated.”

                           II. STANDARD OF REVIEW

      We review for clear error the district court’s findings of fact. United States

v. Jordi, 418 F.3d 1212, 1214 (11th Cir. 2005). A factual finding is clearly

erroneous only if we are “left with a definite and firm conviction that a mistake

has been committed.” United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137

(11th Cir. 2004) (quotation omitted).

      If a defendant fails to raise his allegation of sentencing error before the

district court, we review the issue only for plain error. United States v. Dudley,

463 F.3d 1221, 1227 (11th Cir. 2006). “Under plain error review, there must be

(1) an error, (2) that is plain, and (3) affects substantial rights. When these three

factors are met, we may exercise discretion and correct the error if it seriously

affects the fairness, integrity, or public reputation of the judicial proceedings.” Id.

(citation omitted).

                                 III. DISCUSSION

      On appeal, Weigant argues that the district court clearly erred in finding that

he possessed between three and seven firearms and in applying a two-level

                                           8
increase under U.S.S.G. § 2K2.1(b)(1).

A. Absence of Explicit Findings on Reliability and Credibility

      For the first time on appeal, Weigant argues that the district court erred by

failing to make explicit findings of reliability and credibility regarding the hearsay

testimony. We thus review this issue only for plain error.

      In resolving disputes over facts necessary to establish a sentencing range,

the district court may consider any “information [that] has sufficient indicia of

reliability to support its probable accuracy,” regardless of the rules of evidence

applicable at trial. U.S.S.G. § 6A1.3(a). Hearsay may be admitted at sentencing if

there are “sufficient indicia of reliability, the [district] court makes explicit

findings of fact as to credibility, and the defendant has an opportunity to rebut the

evidence.” United States v. Zlatogur, 271 F.3d 1025, 1031 (11th Cir. 2001)

(quotation marks omitted). “[T]he focus is upon the question of [the hearsay’s]

reliability, which must be determined on a case by case basis.” United States v.

Lee, 68 F.3d 1267, 1275 (11th Cir.1995). “While it may be advisable and in some

instances necessary for a district court to make distinct findings regarding the

reliability of hearsay statements used at sentencing, the absence of such findings

does not necessarily require reversal or remand where the reliability of the

statements is apparent from the record.” United States v. Gordon, 231 F.3d 750,

                                            9
761 (11th Cir. 2000).

      Because the hearsay statements by the CI were supported by sufficient

indicia of reliability and Weigant had an opportunity to rebut those statements, we

conclude that the district court did not plainly err by relying on the hearsay

statements. Detective Price testified that the CI had been truthful and reliable, and

the CI’s statements were verified when the officers found the handgun under the

passenger seat of the CI’s car.

      Moreover, we conclude that the district court implicitly found that the

statements by the CI were more credible than Weigant’s testimony and that this

finding is apparent from the record. Indeed, this credibility finding is supported

by the fact that the CI’s testimony was internally consistent and Weigant’s was not

– Weigant testified both that the CI gave him the baby Glock and that he was

trying to sell the rifle to the CI. Although Weigant explained this inconsistency by

distinguishing between the types of firearms, the district court was free to reject

this explanation. In sum, the district court’s credibility finding is apparent from the

record, and in any event, the asserted error in failing to make explicit findings did

not affect Weigant’s substantial rights.

B. Sufficiency of the Evidence to Support the Enhancement

      In determining the offense level of a defendant convicted of unlawful

                                           10
possession of a firearm, the Guidelines provide for a two-level increase if the

offense involved between three and seven firearms. U.S.S.G. § 2K2.1(b)(1)(A).

Because Weigant disputed the fact that he possessed three or more firearms, the

government had the burden to prove the disputed fact by a preponderance of the

evidence. See United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005).

“The preponderance of evidence is a relaxed evidentiary standard, however, it

does not grant the court a license to sentence a defendant in the absence of

sufficient evidence when that defendant has properly objected to a factual

conclusion.” Id. (quotation marks omitted).

      As described above, the district court did not plainly err in considering the

CI’s hearsay statement that he saw Wiegant with three firearms. The CI’s

credibility was bolstered by his history of providing truthful and relevant

information to Detective Price. Additionally, the government introduced the

photograph in which Wiegant posed with (and offered to sell) a fourth firearm.

Although Wiegant testified that he possessed only one firearm and challenged the

credibility of the hearsay statement by eliciting Detective Price’s concession that

the CI used drugs, the resolution of a “swearing match of witnesses . . . will almost

never be clear error.” Rodriguez, 398 F.3d at 1296. Given the evidence

presented, the district court did not clearly err in finding that Wiegant possessed

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between three and seven firearms.

      AFFIRMED.2




      2
          Weigant’s request for oral argument is DENIED.

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