Case: 12-16058   Date Filed: 07/15/2013   Page: 1 of 3


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT

                       ________________________

                             No. 12-16058
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 9:12-cr-80126-DMM-1



UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                  versus

CARLOS MONTES                                        Defendant-Appellant.



                      ________________________

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

                              (July 15, 2013)

Before CARNES, BARKETT and BLACK, Circuit Judges.

PER CURIAM:
              Case: 12-16058     Date Filed: 07/15/2013   Page: 2 of 3


      After pleading guilty to one count of being a felon in possession of a firearm

and ammunition in violation of 18 U.S.C. § 922(g)(1), Carlos Montes appeals his

48-month sentence. Montes claims the district court clearly erred in applying a

two-level sentencing enhancement pursuant to U.S.S.G. § 2K2.1(b)(4)(A), which

applies to offenses involving a stolen firearm.

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

of the sentencing guidelines to those facts de novo. United States v. Gupta, 

, 887 (11th Cir. 2009). To find clear error, we must have a definite and

firm conviction, after viewing all the evidence, that a mistake has been made.

United States v. Foster, 

, 1331 (11th Cir. 1998).

      When a defendant objects to a factual finding that forms the basis of a

sentencing decision, the Government bears the burden of establishing the disputed

fact by a preponderance of the evidence. United States v. Agis-Meza, 

, 1055 (11th Cir. 1996). The preponderance standard requires the trier of fact

to believe the existence of the disputed fact is more probable than the fact’s

nonexistence. United States v. Almedina, 

, 1315 (11th Cir. 2012). It

is the district court’s role, as factfinder, to evaluate the credibility of witnesses.

See United States v. Ramirez-Chilel, 

, 749 (11th Cir. 2002). We view

the district court’s credibility determinations with great deference. United States v.

Gregg, 

, 1316 (11th Cir. 1999).


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      The district court did not clearly err in concluding that the firearm was

stolen. The Government’s witness testified that a firearm she owned was stolen,

that she reported the theft to the police, and that she still did not have the gun on

the date of the sentencing hearing. Moreover, a records check revealed that the

gun in Montes’s possession at the time of his arrest had been reported as stolen by

the Government’s witness. Although Montes presented evidence that the police

did not believe the witness’s report of the theft, that evidence primarily concerned

whether or not the witness’s boyfriend stole the gun.            The district court

acknowledged the issues regarding the witness’s credibility, but reasoned that the

inconsistencies did not concern whether the gun was in fact stolen. The district

court chose to accept the witness’s in-court testimony that the gun was stolen, and

this testimony was not improbable or unreasonable. See 

(noting that we must accept credibility assessments of the district court

unless the testimony it credits is “so inconsistent or improbable on its fact that no

reasonable factfinder could accept it”). Accordingly, the district court did not

clearly err in finding it was more likely than not that the firearm was stolen, such

that the two-level enhancement under U.S.S.G. § 2K2.1(b)(4)(A) was proper.

      AFFIRMED.




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