                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________          FILED
                                                U.S. COURT OF APPEALS
                             No. 09-15182         ELEVENTH CIRCUIT
                                                      JUNE 2, 2010
                         Non-Argument Calendar
                                                       JOHN LEY
                       ________________________
                                                         CLERK

                D. C. Docket No. 09-00014-CR-4-SPM-WCS

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ROBERT LEE DENMARK,

                                                         Defendant-Appellant.


                       ________________________

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

                              (June 2, 2010)

Before TJOFLAT, BIRCH and WILSON, Circuit Judges.

PER CURIAM:
      Robert Lee Denmark appeals his 123-month prison sentence for possession

of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(1). After review of the record and the parties’ briefs, we find that the

district court properly denied Denmark a U.S.S.G. § 3E1.1 reduction for

acceptance of responsibility, but erred in applying a four-level enhancement under

U.S.S.G. § 2K2.1(b)(6) for possession of a firearm in connection with a burglary.

Accordingly, we VACATE and REMAND for further proceedings consistent with

this opinion.

                                I. BACKGROUND

      The undisputed statement of facts contained in the presentence investigation

report (“PSI”) are as follows. On 4 October 2008, Gary Oglesby reported to the

Wakulla County Sheriff’s Office that his storage building had been burglarized and

that the items taken included several saws, an air compressor, and a rifle. Oglesby

advised police that Denmark frequently worked for him and was familiar with the

location of the equipment and the rifle in the storage building. Thereafter, Deputy

D.K. Wood of the Leon County Sheriff’s Department visited Denmark at his

mother’s residence. Both Denmark and his mother denied having the items but

stated that another individual, later identified as Joe Wilson, had asked them if they

were interested in purchasing some power tools and an air compressor. During a



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subsequent visit, Denmark’s mother directed Wood to the side of her house, where

two of the missing saws were stored. She told Wood she first saw the saws and an

air compressor that morning while doing chores, suspected they were stolen, and

asked Norman Hughes to remove them from her property. Hughes told Wood that

after he had placed the tools and air compressor on his truck, Denmark retrieved

the saws and placed them at the side of the house. Upon further investigation,

Wood discovered that Denmark had sold Oglesby’s rifle to Ward Waff on 26

September 2008. Because Denmark had sold the rifle before Oglesby reported that

items had been stolen from his storage building, Wood determined that the storage

building had been burglarized twice – once to steal the rifle and again in October to

steal the tools and air compressor. Following his arrest, Denmark admitted selling

the stolen firearm and being in possession of the remainder of the stolen items.

      The probation officer who prepared the PSI calculated an initial offense

level of 20, pursuant to U.S.S.G. § 2K2.1(a)(4)(A), based on Denmark’s prior

conviction for a crime of violence. The probation officer then applied a two-level

increase pursuant to § 2K2.1(b)(4)(A) because the offense involved a stolen gun,

and a four-level increase pursuant to § 2K2.1(b)(6) after determining that Denmark

possessed the rifle in connection with an act of burglary. The probation officer

also noted that Denmark committed another felony offense when he sold the stolen



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gun to a third party. Lastly, the probation officer recommended a three-level

reduction in Denmark’s offense level under U.S.S.G. § 3E1.1(a) and (b) because

Denmark took responsibility for the crime and timely notified the government of

his intent to plead guilty. With a total adjusted offense level of 23 and a criminal

history category of V, Denmark’s advisory guidelines range was 84 to 105 months.

       Denmark objected to the § 2K2.1(b)(6) enhancement, arguing that he did

not commit a burglary to obtain the firearm and that the subsequent sale of the gun

could not be considered “another felony” for purposes of the enhancement. The

probation officer amended the PSI to remove the reference to the sale of the gun as

a ground for the enhancement but concluded that a preponderance of the evidence

established that Denmark took the gun during a burglary. Because Denmark

denied his participation in the burglary, the probation officer recommended that

Denmark not receive an acceptance of responsibility reduction. The probation

officer adjusted his recommendation accordingly, resulting in a total offense level

of 26 and a new guidelines imprisonment range of 110 to 137 months.

      At the sentencing hearing, Denmark again challenged the § 2K2.1(b)(6)

enhancement, arguing that because he sold the rifle a week before Oglesby’s

storage shed was burglarized, it was clear that the gun was not stolen during that

burglary, and, furthermore, there was “considerable doubt” as to whether he had



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committed the October burglary because his mother stated that Wilson had brought

the stolen property to her house. Doc. 46 at 15-16. He contended alternatively

that, even if he had taken the rifle, the taking was a theft, not a burglary, because he

was authorized to be on the property and to enter the storage building. Id. at 20.

Finally, Denmark argued that he should still receive credit for acceptance of

responsibility because even if he had committed the burglary, it was not relevant

conduct given that the burglary occurred a week after he came into possession of

the stolen rifle. Id. at 16-19.

       The district court found that there were two burglaries, that it was more

likely than not Denmark was involved in both burglaries, and that “it [wa]s clear

that [Denmark] came into possession of the firearm unlawfully.” Id. at 26. The

court thus concluded that the four-level enhancement under § 2K2.1(b)(6) was

supported by a preponderance of the evidence, and overruled Denmark’s objection

accordingly. Id. The court also found that Denmark was not entitled to a three-

level reduction for acceptance of responsibility because he refused to admit

stealing the rifle. Id. After considering the 18 U.S.C. § 3553(a) factors, the court

imposed a mid-range sentence of 123 months of imprisonment, to be followed by a

three-year term of supervised release. Id. at 29-30.




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                                  II. DISCUSSION

       On appeal, Denmark argues that the district court erred in applying a

four-level enhancement under § 2K2.1(b)(6) because the government presented no

evidence that he committed the burglary. Specifically, the government failed to

prove there was any burglary to obtain the rifle, that Denmark was not authorized

to access the storage building during his work for Oglesby, or that there was any

breaking of the storage structure where the rifle was kept. Denmark contends that

there was only the government’s assumption that, because Denmark possessed the

rifle in September, he obtained it by burglarizing the storage building at some

earlier time.

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

sentencing guidelines de novo and its findings of fact for clear error. United States

v. Rhind, 289 F.3d 690, 693 (11th Cir. 2002). A finding of fact is not clearly

erroneous unless, after reviewing all of the evidence, 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 marks and

citation omitted). “The government bears the burden of establishing by a

preponderance of the evidence the facts necessary to support a sentencing

enhancement.” United States v. Kinard, 472 F.3d 1294, 1298 (11th Cir. 2006).



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“The district court’s factual findings for purposes of sentencing may be based on,

among other things, evidence heard during trial, undisputed statements in the PSI,

or evidence presented during the sentencing hearing.” United States v. Polar, 369

F.3d 1248, 1255 (11th Cir. 2004).

A. § 2K2.1(b)(6) Enhancement

      A defendant who is convicted under 18 U.S.C. § 922(g) is subject to a four-

level increase in his base offense level if he “used or possessed any firearm or

ammunition in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6).

“[A]nother felony offense” is defined as any offense, other than the firearm

possession or trafficking offense, punishable by imprisonment for a term of more

than one year, regardless of whether the defendant was charged with or convicted

for the offense. Id., comment. (n.14(C)). A defendant is deemed to have possessed

the firearm “in connection with” another felony offense “if the firearm or

ammunition facilitated, or had the potential of facilitating,” that offense. Id.,

comment. (n.14(A)). Furthermore, the § 2K2.1(b)(6) enhancement applies when

“a defendant who, during the course of a burglary, finds and takes a firearm, even

if the defendant did not engage in any other conduct with that firearm.” Id.,

comment. (n.14(B)).

      Denmark does not challenge the district court’s finding that stealing the rifle



                                            7
during a burglary satisfies the requirements for an enhancement under

§ 2K2.1(b)(6), but argues that the government failed to prove by a preponderance

of the evidence that he committed a burglary and that he took the rifle during the

burglary. We agree.

      Under Florida law, burglary is defined as “[e]ntering a dwelling, a structure,

or a conveyance with the intent to commit an offense therein, unless . . . the

defendant is licensed or invited to enter.” Fla. Stat. Ann. § 810.02(1)(b)(1).

Although the burglary statute “is not intended to cover a situation where an invited

guest turns criminal or violent once he peaceably gains entry[,] . . . . the absence of

evidence of forced entry and the presence of evidence indicating that a defendant is

known to the victims does not necessarily translate into entry by consent as a

matter of law.” Francis v. State, 808 So. 2d 110, 133 (Fla. 2001) (noting several

non-consensual scenarios that would result in no evidence of forced entry, such as

where the defendant enters, without an invitation, through an unlocked door).

Furthermore, unexplained possession of recently stolen property is sufficient to

support both a theft conviction and a burglary conviction “when a burglary

necessarily occurs as an adjunct” to the theft. Id. at 134.

      Although the evidence before the court did not establish precisely when the

firearm was taken from the storage shed, it showed that Oglesby discovered that



                                           8
the firearm was missing on 4 October 2008, that Denmark sold, and thus had

possession of, the rifle on 26 September 2008, and that Denmark had been

performing yard work and odd jobs for Oglesby, who told law enforcement that

Denmark would have known the location of the rifle and other stolen items.

Inasmuch as this evidence shows that Denmark had access to and possessed the

rifle, it was sufficient to establish that Denmark stole the rifle. See id.

      The preponderance of the evidence does not, however, show that a “burglary

necessarily occur[red] as an adjunct” to the theft of the rifle. Id. Under Florida

law, burglary requires an entering of a structure without permission. See Fla. Stat.

Ann. § 810.02(1)(b). The evidence in this case reflects that Denmark was

frequently invited onto the property to work for Oglesby. There is no evidence the

storage shed was locked or forcibly entered. According to Oglesby, Denmark

knew the tools and the firearm were stored in the shed, which indicates that

Denmark had access to the shed when he worked on Oglesby’s property. Indeed,

Denmark was present with Oglesby when Oglesby discovered the items were

missing from his storage shed. The lack of evidence showing that Denmark

entered the storage building without permission leaves us with “a definite and firm

conviction” that the district court made a mistake in finding that Denmark

committed a burglary in connection with his possession of the rifle.



                                            9
Rodriguez-Lopez, 363 F.3d at 1137. Application of the four-level enhancement

under § 2K2.1(b)(6) was therefore improper.

B. § 3E1.1 Reduction for Acceptance of Responsibility

      Denmark argues that because the government failed to prove that he

committed a burglary, his denial of the same does not preclude application of the

acceptance-of-responsibility reduction. Furthermore, Denmark contends that he

should have received the three-level reduction because he admitted possessing the

firearm and timely gave notice of his intent to plead guilty.

      We review only for clear error a district court’s finding that a defendant is

not entitled to a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1.

United States v. Moriarty, 429 F.3d 1012, 1022 (11th Cir. 2005). “We will not set

aside a district court’s determination that a defendant is not entitled to a § 3E1.1

adjustment unless the facts in the record clearly establish that the defendant has

accepted responsibility.” Id. at 1022-23. The defendant bears the burden of

demonstrating acceptance of responsibility. Id. at 1023.

      Section 3E1.1(a) of the sentencing guidelines provides for a two-level

reduction “[i]f the defendant clearly demonstrates acceptance of responsibility.”

U.S.S.G. § 3E1.1(a) (Nov. 2008). Although a guilty plea constitutes significant

evidence of acceptance of responsibility, it may be outweighed by conduct that is



                                           10
inconsistent with acceptance of responsibility. See Moriarty, 429 F.3d at 1023;

U.S.S.G. § 3E1.1, comment. (n.3). In determining whether a defendant qualifies

for the reduction, a district court may consider whether the defendant “truthfully

admitt[ed] the conduct comprising the offense(s) of conviction, and truthfully

admitt[ed] or [did] not falsely deny[] any additional relevant conduct for which the

defendant is accountable under § 1B1.3 (Relevant Conduct).” U.S.S.G. § 3E1.1,

comment. (n.1(a)). “[A] defendant who falsely denies, or frivolously contests,

relevant conduct that the court determines to be true has acted in a manner

inconsistent with acceptance of responsibility.” Id. Relevant conduct includes “all

acts and omissions committed . . . by the defendant . . . that occurred during the

commission of the offense of conviction, in preparation for that offense, or in the

course of attempting to avoid detection or responsibility for that offense.”

U.S.S.G. § 1B1.3(a)(1)(A) (Nov. 2008).

      In this case, the district court denied Denmark an acceptance of

responsibility reduction because Denmark did not admit he stole the rifle. Because

Denmark’s unexplained possession of the rifle was sufficient to prove that he stole

the rifle, see Francis, 808 So. 2d at 134, and because Denmark’s theft of the rifle,

which occurred during the commission of the possession offense, was clearly

relevant conduct, the district court did not err in determining that Denmark was not



                                          11
entitled to a downward adjustment for acceptance of responsibility under § 3E1.1.

                               III. CONCLUSION

      Denmark appeals his 123-month sentence for being a felon in possession of

a firearm. Because the district court erred in applying a four-level enhancement for

possession of a firearm in connection with a burglary, we VACATE Denmark’s

sentence and REMAND his case for re-sentencing.

      VACATED AND REMANDED.




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