             Case: 15-13070      Date Filed: 09/23/2016   Page: 1 of 5


                                                            [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 15-13070
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 3:14-cr-00104-RV-1


UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                       versus

DARIUS D. WILLIAMS,
a.k.a. Darius Devon Williams,

                                                              Defendant-Appellant.

                         ________________________

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

                                (September 23, 2016)

BeforeTJOFLAT, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Darius Williams appeals his sentence imposed after he pleaded guilty to a

charge of possession of a firearm and ammunition that had been stolen by a

convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 922(j). On appeal,

Williams argues that the district court employed the wrong standard of proof when

determining if there were sufficient facts to support the Government’s requested

sentencing enhancements. Specifically, Williams argues that the court should have

employed a beyond a reasonable doubt standard. Additionally, Williams argues

that the evidence was insufficient to support the court’s finding that Williams’

sentence should be enhanced using a cross reference to an attempted second degree

murder.

      The district court imposed a 175-month term of imprisonment after applying

several enhancements. First, the court employed the cross reference under

U.S.S.G. § 2K2.1(c) for assault with intent to commit murder in the second degree,

using the fact that Williams fled from the scene of a shooting with a gun and with

gunshot residue on him. It did not apply the guideline for first degree murder

because it did not find that the facts supported a finding of premeditation. Next, it

added four points for life threatening injury because the victim was shot in the

head, and subtracted three points for acceptance of responsibility. With a

guidelines range of 140 to 175 months, the court imposed a sentence at the high




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end of the range and stated that it would have imposed the same sentence

regardless of how the guidelines turned out.

      We review sentencing decisions for abuse of discretion, using a two-step

process. United States v. Beckles, 565 F.3d 832, 845 (11th Cir. 2009). First, we

must “ensure that the district court committed no significant procedural error, such

as failing to calculate (or improperly calculating) the Guideline 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—including an explanation for any deviation from the guidelines

range.” Id. (quoting Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597

(2007)). Second, if there is no procedural error, we must then consider the

“substantive reasonableness of the sentence imposed.” Id. A party who challenges

a sentence for substantive unreasonableness “bears the burden of establishing that

the sentence is unreasonable in the light of both the record and the factors in

section 3553(a).” United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006)

(brackets omitted). We review the district court’s application of the Sentencing

Guidelines de novo and its findings of fact for clear error. United States v. Bane,

720 F.3d 818, 824 (11th Cir. 2013).




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      We have stated, post-Booker, 1 that the government bears the burden of

proving the applicability of sentencing enhancements by a preponderance of the

evidence. United States v. Washington, 714 F.3d 1358, 1361 (11th Cir. 2013).

Under that standard, the burden is satisfied if the trier of fact “believe[s] that the

existence of a fact is more probable than its nonexistence.” United States v.

Almedina, 686 F.3d 1312, 1315 (11th Cir. 2012) (citation and internal quotation

marks omitted). Due process requires the evidence presented bear “minimal

indicia of reliability,” and the defendant be given the opportunity to refute that

evidence. United States v. Rodriguez, 751 F.3d 1244, 1261 (11th Cir.), cert.

denied, 135 S. Ct. 310 (2014); see also United States v. Giltner, 889 F.2d 1004,

1007 (11th Cir. 1989).

      The district court did not err in crafting Williams’ sentence. First of all, the

court employed the correct standard of proof as stated in our precedent.

Furthermore, below, Williams encouraged the court to employ the preponderance

of the evidence standard, inviting the use of that standard. Pensacola Motor Sales

Inc. v. E. Shore Toyota, LLC, 684 F.3d 1211, 1231 (11th Cir. 2012) (“A party that

invites an error cannot complain when its invitation is accepted.”). As for the

court’s finding that Williams was involved in the shooting of the victim, the

evidence supports a finding that he perpetrated the shooting by a preponderance of


1
      United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).
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the evidence. Williams was apprehended fleeing from a car that had left the site of

the shooting at a high speed, which suggests involvement. He was apprehended

after discarding a gun while being chased on foot by a police officer, which again

implies guilt; traces of DNA obtained from the gun matched Williams’. Gunshot

residue was found on Williams’ hands and clothes, which confirms that he was

near a gun that had discharged. While Williams is correct that this evidence may

not have been enough to satisfy the beyond a reasonable doubt standard, the

Government was not required to meet that high a burden. Under the

preponderance standard, the evidence was sufficient.

      Because the district court did not err in sentencing Williams, we affirm.

AFFIRMED.




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