[DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                                                                FILED
                      ________________________        U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                           JANUARY 5, 2010
                            No. 09-10555
                        Non-Argument Calendar                 JOHN LEY
                                                            ACTING CLERK
                      ________________________

                  D. C. Docket No. 08-20437-CR-DLG

UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

YAMIL GONZALEZ-RODRIGUEZ,

                                                        Defendant-Appellant.

                      ________________________

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

                            (January 5, 2010)

Before BLACK, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
       Yamil Gonzalez-Rodriguez, through counsel, appeals his concurrent

33-month sentences for conspiracy to encourage aliens to enter the United States

illegally and for encouraging aliens to enter the United States illegally. On appeal,

Gonzalez-Rodriguez argues that the district court erred by applying a six-level

sentencing enhancement under U.S.S.G. § 2C1.1(b)(5)(C) for possession of a

firearm during the offense of conviction. Specifically, he argues that the upward

adjustment was improper because (1) the government did not present evidence

regarding possession of the firearm at trial or at the sentencing hearing, and (2) he

was not in possession of the firearm when he engaged in the conspiracy, because

the conspiracy ended prior to the seizure of his firearm.

      We review a district court’s factual findings for clear error, and the

application of the guidelines to those facts de novo. United States v. Pham,

, 1245 (11th Cir. 2006). A factual finding is clearly erroneous when

we are “left with a definite and firm conviction that a mistake has been

committed” after we review all of the evidence. United States v.

Rodriguez-Lopez, 

, 1137 (11th Cir. 2004) (quotation omitted).

      It is illegal for a person to conspire to encourage or induce an alien to come

to, enter, or reside in the United States, if the person knows or recklessly

disregards the fact that doing so will be in violation of law. 8 U.S.C.

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§ 1324(a)(1)(A)(iv), (a)(1)(A)(v)(I). It also is illegal for a person to bring an alien

who has not received prior authorization to the United States for the purpose of

commercial advantage or private financial gain. 

The

sentencing guidelines provide for a base offense level of 12 for a person convicted

of violating a provision of § 1324. U.S.S.G. § 2L1.1(a)(3). If the defendant

possessed a dangerous weapon in connection with the offense, the guidelines call

for a 2-level increase in offense level, or an increase to offense level 18, whichever

is higher. 

      In determining whether to apply a specific offense characteristic, the district

court should consider 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.” 

When deciding whether to apply a sentencing

enhancement, the district court may consider evidence of unindicted conduct,

conduct for which the defendant has been acquitted, and conduct that goes beyond

an averment of the indictment. United States v. Nyhuis, 

, 744 (11th Cir.

1993). With regard to computing the statute of limitations, we have held that “a

conspiracy is deemed to continue as long as its purposes have neither been

abandoned nor accomplished, and no affirmative showing has been made that it

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has terminated.” United States v. Arnold, 

, 1313 (11th Cir. 1997).

      Here, the pre-sentence investigation report contains evidence that

Gonzalez-Rodriguez brought a gun with him when he went to the Holiday Inn

parking lot to collect payment for the smuggling, and that he threatened to shoot

the smuggled alien from whom he was collecting the payment. Moreover, because

the district court was permitted to consider allegations that went beyond the

averments of the indictment, the court did not clearly err in finding that

Gonzalez-Rodriguez’s collection of payment for the smuggling was an objective

of the conspiracy. Therefore, the district court did not clearly err in finding that

the evidence showed that Gonzalez-Rodriguez possessed a gun in connection with

the conspiracy. In light of the district court’s factual findings, the court did not err

in applying the firearm enhancement.

      Upon review of the record and consideration of the parties’ briefs, we

affirm.

      AFFIRMED.1




      1
             Appellant’s request for oral argument is denied.

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