                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 08-12911                FEBRUARY 25, 2009
                          Non-Argument Calendar            THOMAS K. KAHN
                                                               CLERK
                        ________________________

                    D. C. Docket No. 08-20082-CR-MGC

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

RUDY VILLANUEVA,

                                                          Defendant-Appellant.


                        ________________________

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

                             (February 25, 2009)

Before BIRCH, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

     Rudy Villanueva appeals his 79-month sentence for being a convicted felon
in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Villanueva

argues that the district court erred by (1) applying a four-level sentence

enhancement, pursuant to U.S.S.G. § 2K2.1(b)(6), for using or possessing a

firearm in connection with another felony offense, (2) applying base offense level

22, based on a finding that the offense involved a semiautomatic firearm that is

capable of accepting a large capacity magazine, and (3) imposing a two-level

enhancement, pursuant to U.S.S.G. § 2K2.1(b)(1)(A), based on a finding that he

possessed three or more firearms.

I.    Four-Level Sentence Enhancement, Pursuant to U.S.S.G. § 2K2.1(b)(6)

      Villanueva argues that the statements he made in his YouTube video did not

constitute a threat and thus were protected by the First Amendment. He asserts

that his statements could not be considered either “communication” or a “threat,”

because he was intoxicated during the filming of the video and his statements were

incoherent. He argues that the court must consider the specific intent of the

speaker in determining if a statement is a threat, and because he was intoxicated

when he made the statements, and because it was obvious that he was “goofing

off” in the video, his statements could not be construed as a threat. Finally,

Villanueva argues that applying the § 2K2.1(b)(6) enhancement in his case

infringes his Sixth Amendment right to a jury trial because it involves finding a



                                           2
violation of a separate criminal statute, 18 U.S.C. § 875(c).

      Generally, we review a district court’s application and interpretation of the

Guidelines de novo, and its factual findings for clear error. United States v. Rhind,

289 F.3d 690, 693 (11th Cir. 2002). However, when a defendant raises a

sentencing argument for the first time on appeal, we review for plain error. United

States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). We have discretion to

correct an error under the plain error standard where (1) an error occurred, (2) the

error was plain, (3) the error affected substantial rights, and (4) the error seriously

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

States v. Duncan, 400 F.3d 1297, 1301 (11th Cir. 2005).

      In calculating the guideline range for a firearm possession offense under 18

U.S.C. § 922(g), a four-level increase to the base offense level is required “[i]f the

defendant used or possessed any firearm or ammunition in connection with another

felony offense.” U.S.S.G. § 2K2.1(b)(6). “‘Another felony offense,’ for purposes

of subsection (b)(6), means any Federal, state, or local offense, other than the

explosive or firearms possession or trafficking offense punishable by imprisonment

for a term exceeding one year, regardless of whether a criminal charge was

brought, or a conviction obtained.” U.S.S.G. § 2K2.1, comment. (n.14(C)). “The

government bears the burden of establishing by a preponderance of the evidence



                                            3
the facts necessary to support a sentencing enhancement.” United States v. Kinard,

472 F.3d 1294, 1298 (11th Cir. 2006). An individual commits a felony offense

punishable by up to five years’ imprisonment if he “transmits in interstate or

foreign commerce any communication containing any threat to kidnap any person

or any threat to injure the person of another.” 18 U.S.C. § 875(c).

      The First Amendment provides that “Congress shall make no law. . .

abridging the freedom of speech.” U.S. C ONST. amend. I. However, as the

Supreme Court has noted, “[t]he protections afforded by the First Amendment . . .

are not absolute, and . . . the government may regulate certain categories of

expression consistent with the Constitution. Virginia v. Black, 538 U.S. 343, 358,

123 S.Ct. 1536, 1547, 155 L.Ed.2d 535 (2003) (addressing whether cross-burnings

are constitutionally protected speech or “true threats”). For example, “threats of

violence” are not protected by the First Amendment. Id. at 359, 123 S.Ct. at 1548.

The Supreme Court has defined “[t]rue threats” as “those statements where the

speaker means to communicate a serious expression of an intent to commit an act

of unlawful violence to a particular individual or group of individuals.” Id.

      The Sixth Amendment provides that “[i]n all criminal prosecutions, the

accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . .”

U.S. C ONST. amend.VI. In United States v. Booker, the Supreme Court held that



                                            4
the Sixth Amendment is not implicated in sentencing, as long as the sentencing

guidelines are applied as advisory provisions. United States v. Booker, 543 U.S.

220, 245-46, 125 S.Ct. 738, 757, 160 L.Ed.2d 621 (2005). Furthermore, we have

held that the use of extra-verdict enhancements in an advisory guideline system

does not violate the Constitution. United States v. Rodriguez, 398 F.3d 1291, 1300

(11th Cir. 2005).

      Because Villanueva’s post-arrest statements, as well as his actions in the

video, indicate that he intended his statements to be taken seriously by individuals

who viewed the video, the district court did not err in finding that his statements

constituted a “threat” and therefore were not entitled to protection under the First

Amendment. Furthermore, because the district court applied the sentencing

guidelines in an advisory fashion, Villanueva’s Sixth Amendment rights were not

implicated. Accordingly, the district court did not err in applying the

§ 2K2.1(b)(6) enhancement.

II.   Use of Base Offense Level 22

      Villanueva argues that his base offense level should not have been 22,

pursuant to U.S.S.G. § 2K2.1(a)(3)(i)(B), because the firearm he held in the video

did not have a magazine attached. He argues that the government cannot rely on

the proximity of the firearm to the magazine when it was found during the January



                                           5
15, 2008 search; instead, he asserts, it must show that the magazine was in close

proximity to the semi-automatic firearm at the time he possessed the weapon.

      We review a district court’s application and interpretaton of the Guidelines

de novo, and its factual findings for clear error. Rhind, 289 F.3d at 693.

      Section 2K2.1(a)(3) provides for a base offense level of “22, if (A) the

offense involved a (i) semiautomatic firearm that is capable of accepting a large

capacity magazine; . . . and (B) the defendant committed any part of the instant

offense subsequent to sustaining one felony conviction of either a crime of

violence or a controlled substance offense.” U.S.S.G. § 2K2.1(a)(3). The

guideline commentary clarifies that a “semiautomatic firearm capable of accepting

a large capacity magazine” means

             a firearm that has the ability to fire many rounds without
             reloading because at the time of the offense (A) the
             firearm had attached to it a magazine or similar device
             that could accept more than 15 rounds of ammunition; or
             (B) a magazine or similar device that could accept more
             than 15 rounds of ammunition was in close proximity to
             the firearm.

U.S.S.G. § 2K2.1, comment. (n.2).

      Because the MySpace photos showed Villanueva holding an AK-47 with a

loaded clip, and were taken shortly before the YouTube video was filmed, but after

Villenueva undisputedly had been convicted of a felony crime of violence, the



                                          6
district court did not err in applying the § 2K2.1(a)(3) enhancement.

III.   Application of a Two-Level Enhancement, Pursuant to U.S.S.G.
       § 2K2.1(b)(1)(A)

       Villanueva argues that the district court erred in applying a two-level

enhancement, pursuant to U.S.S.G. § 2K2.1(b)(1)(A), because he held only two

firearms on the YouTube video, rather than three to seven firearms, as is required

to trigger the enhancement. He argues that the government failed to establish that

the weapons he held in the other photographs were real firearms, as opposed to

plastic pellet guns.

       We review a district court’s factual findings for clear error. Rhind, 289 F.3d

at 693. “For a factual finding to be clearly erroneous, this court, after reviewing all

of the evidence, must be 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) (internal quotations omitted). “Credibility determinations made by the

district court are entitled to deference by a reviewing court.” United States v.

Holland, 874 F.2d 1470, 1473 (11th Cir. 1989).

       The guidelines corresponding to the § 922 firearm offense provide for a two-

level enhancement to the base offense level if the defendant possessed three to

seven firearms. U.S.S.G. § 2K2.1(b)(1)(A). Because the district court found the

officers’ testimony, indicating that the firearms in the pictures and on the YouTube

                                           7
video were real, to be more credible than the testimony of Villanueva and his

brother and father, it did not err in finding that Villanueva possessed at least three

firearms. Accordingly, we affirm Villanueva’s sentence.

      AFFIRMED.1




      1
             Villanueva’s request for oral argument is denied.

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