                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                        U.S. COURT OF APPEALS
                             No. 09-13844                 ELEVENTH CIRCUIT
                                                              JULY 27, 2010
                         Non-Argument Calendar
                                                               JOHN LEY
                       ________________________
                                                                CLERK

                   D. C. Docket No. 08-20794-CR-MGC

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

STEPHANE FRIDGY APPOLON,
BERNARD PIERRE,


                                                        Defendants-Appellants.


                       ________________________

                Appeals from the United States District Court
                    for the Southern District of Florida
                      _________________________

                               (July 27, 2010)

Before BARKETT, HULL and WILSON, Circuit Judges.

PER CURIAM:
      Co-appellants Stephane Fridgy Appolon and Bernard Pierre, proceeding

through counsel, each appeal their convictions for being a felon in possession of a

firearm or ammunition, in violation of 18 U.S.C. § 922(g)(1). On appeal, they

challenge the sufficiency of the evidence against them. In addition, Pierre appeals

his 63-month sentence, arguing that the district court improperly applied a

two-level stolen-firearm enhancement under U.S.S.G. § 2K2.1(b)(4)(A). After

review of the record and the parties’ briefs, we affirm.

      In 2008, a grand jury charged Appolon and Pierre with being felons in

possession of (1) a Glock .40 caliber semi-automatic handgun, (2) a Romarm 7.62

x 39 mm caliber rifle, and (3) 28 rounds of 7.62 x 39mm caliber ammunition.

Following a five-day trial, the jury was unable to reach a verdict, and the district

court declared a mistrial. During a second trial in April 2009, Cassandra Mentor

testified that she was attacked by a man at a laundromat one evening in August

2008. After Mentor’s friend Gino pulled the attacker off of Mentor, she went

home and returned to the laundromat with four of her relatives. As Mentor started

walking to Gino’s house, which is two houses down from the laundromat, where

she last saw the attacker, Mentor testified that she saw a short, black man exit the

gate to Gino’s yard holding a “big gun,” like an “AK.” Mentor described the gun,

what the man was wearing, and that he screamed that the block belonged to him.



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At that point, Mentor testified that her attacker “came out” with two handguns, one

on his hip, and the other in his hand. Mentor then called 911 and went back to the

laundromat to meet the police. According to Mentor, the police lined-up three men

in the street, and she identified both Appolon and Pierre as those carrying the guns.

Mentor also positively identified them in court.

      The prosecution played a surveillance video from the laundromat’s security

camera. Mentor identified Appolon and Pierre, and Mentor reiterated that Appolon

held the assault rifle and Pierre held the handguns. The video showed the men

heading toward Gino’s house. On cross-examination, however, Mentor testified

that the surveillance video did not show the assault, the picture was blurry, and she

only saw the guns for a few seconds. Mentor also testified that she did not see any

guns when she was attacked. Mentor testified that she met with Bureau of

Alcohol, Tobacco, Firearms, and Explosives (“ATF”) agents and confirmed that

Appolon had the assault rifle in a picture shown to her, and Pierre had the

handguns. She additionally identified the assault rifle and Glock in a picture and

identified the actual guns in court.

      Robert Glenn, Mentor’s friend and eyewitness, testified that he saw a short

man carrying a “chopper” or AK-47. Glenn also testified that he saw a Creole-

speaking man hit the hood of his car, and he saw a “Glock” in his waistband. After



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the police apprehended three men, Glenn identified Appolon and Pierre as the ones

wielding guns. Glenn also spoke with ATF agents and re-identified a photograph

of Pierre as the man with the Glock and Appolon as the man with the rifle,

identified Appolon and Pierre in court, and confirmed that the video showed

someone who matched his description of Pierre. On cross-examination, Glenn

admitted never having seen Pierre before the two or three minutes the night of the

incident, and he contradicted his testimony that Pierre was the suspect with the

assault rifle, but then identified Appolon as the person he said was Pierre.

      Several law enforcement officers also testified for the government regarding

their collection of evidence and apprehension of Appolon and Pierre. They

testified that no fingerprints were recovered from the guns, and the DNA results

were inconclusive. The parties stipulated that both Appolon and Pierre each had at

least one prior felony conviction. At the close of the government’s case, Appolon

and Pierre each moved for a judgment of acquittal based on lack of evidence. The

defense did not call any witnesses. After the defense rested, Appolon and Pierre

renewed their motions for directed verdicts.

      At sentencing, the PSI recommended that Pierre receive a two-level

enhancement under U.S.S.G. § 2K2.1(b)(4)(A), because the Glock handgun

recovered was stolen. Pierre objected to the PSI, arguing that there was no



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evidence at trial that the firearm was stolen, and the jury made no such finding.

The probation officer responded that the government provided documentation that

a law enforcement agent reported the Glock stolen and that a stolen-gun query on

the National Criminal Information Center database confirmed that it was taken in a

residential burglary. During a sentencing hearing, an officer with the Florida

Division of Alchohol, Beverage, and Tobacco addressed the court and stated that

his firearm, holsters, ammunition, and extra magazines were stolen during a

burglary at his home in 2007. He filed a police report and did not believe anyone

was apprehended for the crime. The district court did not make an explicit ruling

on Pierre’s objections, but it implicitly rejected them by finding that Pierre’s total

offense level was 22, which included a two-level increase for the stolen firearm

and sentenced him to 63 months’ imprisonment, followed by 3 years’ supervised

release. The district court then asked whether Pierre had any objection “to the

Court’s finding of fact or the manner in which the sentence was pronounced,” and

counsel for Pierre replied, “[n]o.”

                                           I.

      We review the sufficiency of the evidence de novo. United States v.

Garcia-Bercovich, 582 F.3d 1234, 1237 (11th Cir. 2009), cert. denied, 130 S. Ct.

1562 (2010) (citation omitted). We consider the evidence “in the light most



                                           5
favorable to the jury verdict, and draw all reasonable inferences and credibility

determinations in favor of the Government.” United States v. Ellisor, 522 F.3d

1255, 1271 (11th Cir. 2008) (citation omitted). “[I]t is not necessary that the

evidence exclude every reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except that of guilt, provided that a reasonable

trier of fact could find that the evidence established guilt beyond a reasonable

doubt.” United States v. Merrill, 513 F.3d 1293, 1299 (11th Cir. 2008) (citation

and quotation omitted).

      Under § 922(g)(1), it is a crime for a felon to “possess in or affecting

commerce, any firearm or ammunition.” 18 U.S.C. § 922(g)(1). Accordingly, to

establish a violation of this provision, “the government must prove three elements:

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

possession of a firearm [or ammunition], and (3) that the firearm [or ammunition]

was in or affecting interstate commerce.” United States v. Beckles, 565 F.3d 832,

841 (11th Cir.) (citation and quotation omitted), cert. denied, 130 S. Ct. 272

(2009). Appolon and Pierre contest only the second element—that each did not

knowingly possess a firearm or ammunition.

      “The government need not prove actual possession in order to establish

knowing possession; it need only show constructive possession through direct or



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circumstantial evidence.” United States v. Greer, 440 F.3d 1267, 1271 (11th Cir.

2006) (citation omitted). “Constructive possession exists when the defendant

exercises ownership, dominion, or control over the item or has the power and

intent to exercise dominion or control.” Id. (citation omitted). Nevertheless, “a

defendant’s mere presence in the area of [an object] or awareness of its location is

not sufficient to establish possession.” United States v. Pedro, 999 F.2d 497,

500–01 (11th Cir. 1993) (alteration in original) (citation and quotation omitted).

Further, “where all the eyewitnesses to the commission of the offense express

substantial doubt about their identification of the defendant, the government must

present some connecting or corroborating evidence in order to sustain a

conviction.” United States v. Fredericks, 857 F.2d 733, 736 (11th Cir. 1988)

(citation and quotation omitted).

      Here, the evidence was sufficient to sustain Appolon’s and Pierre’s

convictions. Two eyewitnesses testified at trial that (1) they saw Appolon carrying

the assault rifle that formed the basis for his conviction, and (2) they saw Pierre

carrying the handgun that formed the basis for his conviction. Each witness

identified Appolon and Pierre (1) in person on the night of the offense, (2) in

photographs at a later date, and (3) in court. Further, they each identified pictures

of the weapons of conviction prior to trial, and one of them identified both of the



                                           7
actual weapons during the trial. Accordingly, we affirm Appolon’s and Pierre’s

convictions.

                                            II.

      We normally review questions of law raised at sentencing, including

Guidelines calculations, de novo. United States v. DeVegter, 439 F.3d 1299, 1303

(11th Cir. 2006) (citation omitted). We review the district court’s findings of fact

for clear error. Id. Nevertheless, we review sentencing challenges raised for the

first time on appeal in criminal cases for plain error. See United States v. Bennett,

472 F.3d 825, 831 (11th Cir. 2006) (per curiam) (citation omitted). Under the

plain error standard, “there must be (1) an error, (2) that is plain, and (3) that

affects substantial rights.” United States v. Williams, 469 F.3d 963, 966 (11th Cir.

2006) (per curiam). If those conditions are met, we will “notice the error only if

the error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (citation and quotation omitted). A district court must begin the

sentencing process by correctly calculating the applicable Guidelines range. Gall

v. United States, 552 U.S. 38, 49, 128 S. Ct. 586, 596 (2007). The government

bears the burden of proving the applicability of any enhancements. United States

v. Ndiaye, 434 F.3d 1270, 1300 (11th Cir. 2006).

      At sentencing, the court may make factual findings that go beyond the jury’s



                                            8
verdict or a defendant’s admissions based upon the preponderance of the evidence,

as long as the Guidelines are applied in an advisory manner. United States v.

Chau, 426 F.3d 1318, 1323 (11th Cir. 2005) (per curiam); see also United States v.

Dean, 487 F.3d 840, 854 (11th Cir. 2007) (per curiam) (“[A] district court may

enhance a sentence based upon judicial fact-finding provided that its findings do

not increase the sentence beyond the statutory maximum authorized by facts

determined in a . . . jury verdict.” (citation omitted)). “Evidentiary requirements

are more relaxed during a sentencing procedure, and reliable hearsay is

admissible.” United States v. Docampo, 573 F.3d 1091, 1098 (11th Cir. 2009),

cert. denied, ___ S. Ct. ___, No. 09-7833 (Apr. 5, 2010).

      For a defendant convicted of unlawful possession of a firearm, § 2K2.1 of

the Guidelines provides for a two-level increase “[i]f any firearm . . . was stolen.”

U.S.S.G. § 2K2.1(b)(4)(A). The Commentary to the Guidelines states that the

enhancement “applies regardless of whether the defendant knew or had reason to

believe that the firearm was stolen.” U.S.S.G. § 2K2.1 cmt. n.8(B).

      Under the current version of Federal Rule of Criminal Procedure 32(i)(3)(B),

“for any disputed portion of the presentence report or other controverted matter”

the district court must “either (1) make an explicit factual finding as to the

allegation; or (2) determine that no such finding is necessary because the matter



                                           9
controverted will not be taken into account in sentencing the defendant.” United

States v. Butler, 41 F.3d 1435, 1444 (11th Cir. 1995) (citation omitted). An older

version of Rule 32 expressly limited it to factual objections, and a committee note

on the new wording explains that the intention was to “narrow[] the requirement

for court findings.” Fed. R. Crim. P. 32, Advisory Committee’s Notes (2002).

      As an initial matter, we conclude that Pierre failed to preserve the instant

sentencing challenge before the district court. Accordingly, we will review it for

plain error only. Substantively, the district court did not plainly err by applying a

stolen-firearm enhancement. Even assuming that the court erred by not making an

explicit finding in this regard, any such error did not affect Pierre’s substantial

rights because (1) the enhancement would apply to a stolen weapon regardless of

whether he stole it or knew it was stolen, (2) it was unnecessary for the jury to

make a finding at trial as to the stolen nature of the handgun, and (3) he does not

argue that the evidence at sentencing was insufficient to prove by a preponderance

of the evidence that the handgun at issue was stolen. Accordingly, we affirm

Pierre’s sentence.



      AFFIRMED.




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