Case: 10-11395   Date Filed: 12/03/2013   Page: 1 of 8


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 10-11395
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:09-cr-00441-SCB-AEP-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

TIMOTHY EUGENE KELLY,

                                                         Defendant-Appellant.

                      ________________________

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

                            (December 3, 2013)

Before HULL, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Timothy Kelly appeals his 240-month sentence, imposed below the advisory

guideline range, after pleading guilty to one count of being a felon in possession of

a destructive device (pipe bomb), in violation of 18 U.S.C. §§ 922(g)(1) and

924(e). On appeal, Kelly argues that the district court incorrectly sentenced him as

a career offender because his conviction was not a crime of violence. Specifically,

he argues that (1) mere possession of a pipe bomb is not a crime of violence under

the Sentencing Guidelines, and (2) the government did not sufficiently prove that

the pipe bomb in this case was a “destructive device.” After careful review, we

affirm.

                                            I.

      We review de novo whether a conviction qualifies as “crime of violence”

under the Sentencing Guidelines. United States v. Hall, 

, 1271 (11th

Cir. 2013). Where a defendant raises a sentencing error for the first time on

appeal, we review for plain error. United States v. Aguillard, 

, 1320

(11th Cir. 2000). “To demonstrate plain error, [the defendant] has the burden of

establishing that (1) there is an error; (2) that is plain or obvious; (3) affecting his

substantial rights in that it was prejudicial and not harmless; and (4) that seriously

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

United States v. Beckles, 

, 842 (11th Cir. 2009) (internal quotation

marks and brackets omitted).


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      “The burden of proof for establishing that a sentence enhancement is

warranted lies with the prosecution and it is the duty of the district court to insure

that the prosecution carries its burden of proof.” United States v. Hernandez, 

, 1440 (11th Cir. 1998). The district court may base factual findings for

purposes of sentencing on undisputed statements in the presentence investigation

report (“PSI”). 

. The facts in a PSI are undisputed and

deemed admitted unless a party objects to them before the sentencing court “with

specificity and clarity.” 

(internal quotation marks omitted). A failure to

object admits facts in the PSI for sentencing purposes and “ ‘precludes the

argument that there was error in them.’” 

Additionally, “ ‘[a]

plea of guilty knowingly and understandingly made is an admission of all facts

alleged in the indictment.’” United States v. Covington, 

, 1345 (11th

Cir. 2009) (citation omitted).

      The career offender guideline provides that

      A defendant is a career offender if (1) the defendant was at least
      eighteen years old at the time the defendant committed the instant
      offense of conviction; (2) the instant offense of conviction is a felony
      that is either a crime of violence or a controlled substance offense; and
      (3) the defendant has at least two prior felony convictions of either a
      crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a). “Crime of violence” is then defined as

      any offense under federal or state law, punishable by imprisonment
      for a term exceeding one year, that—


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      (1) has as an element the use, attempted use, or threatened use of
      physical force against the person of another, or

      (2) is burglary of a dwelling, arson, or extortion, involves use of
      explosives, or otherwise involves conduct that presents a serious
      potential risk of physical injury to another.

The commentary to § 4B1.2 explains that “crime of violence” does

not include the offense of unlawful possession of a firearm by a felon, except that

“[u]nlawfully possessing a firearm described in 26 U.S.C. § 5845(a) (e.g., a sawed-

off shotgun or sawed-off rifle, silencer, bomb, or machine gun) is a ‘crime of

violence.’” 

comment. (n.1).

      The Supreme Court has made clear that “commentary in the Guidelines

Manual that interprets or explains a guideline is authoritative unless it violates the

Constitution or a federal statute, or is inconsistent with, or a plainly erroneous

reading of, that guideline.” Stinson v. United States, 

, 38, 

, 1915 (1993). Accordingly, where there is an “explicit statement” in the

guideline commentary, absent one of the limited exceptions discussed in Stinson,

we are bound by that statement. See 

. We have determined

that the § 4B1.2 commentary note discussed above does not violate the

Constitution or a federal statute, and is not inconsistent with, or a plainly erroneous

reading of, the guideline text. 

of Title 18 of the U.S. Code makes it a crime for a felon to

possess a firearm. 18 U.S.C. § 922(g)(1) (2006). Included within the definition of
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firearm is “any destructive device.” 

The definition of “destructive

device” includes “any explosive, incendiary, or poison gas . . . bomb . . . not

includ[ing] any device which is neither designed nor redesigned for use as a

weapon.” 

Section 5845(a) of Title 26 defines, among other terms,

“firearm” for purposes of the registration requirements of the Internal Revenue

Code. 26 U.S.C. § 5845(a) (2006). The definition of “firearm” in 26 U.S.C.

§ 5845(a) includes “a destructive device,” which is defined under 26 U.S.C.

§ 5845(f) identically to the definition of “destructive device” in 18 U.S.C.

§ 921(a)(4). Compare 18 U.S.C. § 921(a)(3)-(4), with 26 U.S.C. § 5845(a), (f)

(2006).

      In United States v. Hammond, we explained that for an explosive device to

qualify as a “destructive device” under 26 U.S.C. § 5845(a), it must not only

explode, but also be designed as a weapon. 

, 780 (11th Cir. 2004).

This “plus” factor requires the government to offer some proof beyond the fact that

the device would explode and cause some damage. See 

design is

required to qualify a device as a weapon. 

“[T]he critical inquiry is

whether the device, as designed, has any value other than as a weapon.” 

are not typically possessed by law-abiding citizens for lawful

purposes.” United States v. Tagg, 

, 1326 (11th Cir. 2009).

                                          II.


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      We review Kelly’s first argument, that mere possession of a pipe bomb is

not a crime of violence under U.S.S.G. § 4B1.2(a), under a de novo standard of

review. The district court did not err in rejecting this argument. Although mere

possession of a standard firearm by a felon is not a crime of violence, the

Sentencing Guidelines commentary explicitly states that unlawful possession of a

firearm identified in 26 U.S.C. § 5845(a) does qualify as a crime of violence. See

U.S.S.G. § 4B1.2, comment. (n.1). Because Kelly pled guilty under § 922(g)(1) to

unlawful possession of a “destructive device (pipe bomb),” and because a

“destructive device” is a firearm identified in 26 U.S.C. § 5845(a), Kelly’s mere-

possession offense is a crime of violence. See 

. Thus, the

district court did not err in concluding that Kelly’s conviction for possession of a

pipe bomb was a crime of violence.

      As to Kelly’s second argument, that the pipe bomb in this case cannot be

classified as a destructive device because the government did not sufficiently prove

that the pipe bomb was designed as a weapon, Kelly did not make this argument to

the district court. Thus, we review for plain error. Kelly has not shown error, let

alone plain error, for two reasons.

      First, Kelly’s indictment alleged that he knowingly possessed “a destructive

device constituting a pipe bomb” and this was a violation of 18 U.S.C. § 922(g)(1).

Because the definition of “firearm” in 26 U.S.C. § 5845(a) includes “a destructive


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device” and the definition of “destructive device” under 26 U.S.C. § 5845(f) is

identical to the definition of “destructive device” in 18 U.S.C. § 921(a)(4), Kelly

necessarily admitted that his pipe bomb was a destructive device when he pled

guilty to a violation of 18 U.S.C. § 922(g)(1) as alleged in his specific indictment.

See 

. Therefore, Kelly cannot now claim that his pipe

bomb was not a destructive device under § 5845(a) because it was not designed as

a weapon.

      Second, even if Kelly did not admit that his pipe bomb was designed as a

weapon when he pled guilty, his argument fails. The district court was entitled to

rely on Kelly’s plea colloquy and the undisputed statements in the PSI in

determining whether the factual basis for a career offender enhancement was

satisfied. See 

. Here, the factual basis offered by the

government at the plea hearing explained that the pipe bomb discovered was made

out of a Maglite flashlight, and that ATF had examined the pipe bomb, certified

that it was a weapon designed to expel a projectile by the action of an explosive,

and confirmed that it met the definition of firearm within the statute. Additionally,

the PSI stated that ATF had determined that the pipe bomb met the statutory

definition of a firearm, and Kelly did not object to this statement. Accordingly, the

district court did not err in finding that the pipe bomb was a destructive device.

                                         III.


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      For the reasons stated above, we hold that Kelly’s conviction for felon in

possession of a destructive device (pipe bomb) qualifies as a crime of violence

under the Sentencing Guidelines, and we affirm Kelly’s sentence.

      AFFIRMED.




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