Case: 13-14069   Date Filed: 04/25/2014   Page: 1 of 4


                                                       [DO NOT PUBLISH]




           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 13-14069
                       Non-Argument Calendar
                     ________________________

               D.C. Docket No. 2:13-cr-00028-IPJ-TMP-1



UNITED STATES OF AMERICA,


                                                             Plaintiff-Appellee,


                                 versus


RODNEY DEWAYNE CLARK,


                                                        Defendant-Appellant.

                     ________________________

              Appeal from the United States District Court
                 for the Northern District of Alabama
                     ________________________

                            (April 25, 2014)
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Before HULL, MARTIN, and FAY, Circuit Judges.

PER CURIAM:

      Rodney Clark appeals his sentence of 27 months of imprisonment after

pleading guilty to conspiracy to commit mail theft, in violation of 18 U.S.C. § 371,

and mail theft by a United States Postal Service employee, in violation of 18

U.S.C. § 1709. At sentencing, the district court applied a cross reference in United

States Sentencing Guidelines (USSG) § 2B1.1(c)(1)(A), which applies the base

offense level and specific offense characteristics of § 2K2.1 when “a firearm . . .

was taken, or the taking of any such item was an object of the offense.” As a result

of this cross reference, Clark’s base offense level increased from 6 to 12 under

§ 2K2.1(a)(7), and he also received additional increases in his offense level based

on § 2K2.1(b). Clark argues that the cross reference in § 2B1.1(c)(1)(A) should

not have applied to him because he lacked knowledge that he stole a package

containing firearms. After careful review, we affirm.

      We review de novo the district court’s interpretation of the Sentencing

Guidelines. United States v. Barrington, 

, 1194–95 (11th Cir. 2011).

The district court’s factual findings are reviewed for clear error, and its application

of those facts to justify a sentencing enhancement is reviewed de novo. United

States v. Walker, 

, 1299 (11th Cir. 2007). “Although district courts

now consider the Guidelines only in an advisory fashion, USSG § 1B1.3 instructs


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district courts to consider not merely the charged conduct, but rather all ‘relevant

conduct,’ in calculating a defendant’s offense level.” United States v. Hamaker,

, 1336 (11th Cir. 2006). The district court is not limited to only

those facts that the defendant has admitted or pleaded guilty to and may consider

relevant facts in the record, undisputed statements in the Presentence Investigation

Report (PSI), or evidence proffered at the sentencing hearing. United States v.

Smith, 

, 1281 (11th Cir. 2007). The district court’s factual findings

as to relevant conduct, however, must be supported by a preponderance of the

evidence. United States v. Duncan, 

, 1304 (11th Cir. 2005).

      This Court has not yet decided whether the cross reference in

§ 2B1.1(c)(1)(A) contains a knowledge requirement. We need not decide that

question in this case, however, because the record contains ample circumstantial

evidence that Clark knew that he was stealing firearms when he attempted to steal

the package at issue here. Clark stipulated that the government executed a

controlled delivery of a package containing 11 handguns. The label on the

package stated that it was being sent from “Jiminez Arms” to “Gold Star Pawn.”

Clark also testified that he did not see that the package was being sent by Jiminez

Arms, yet he chose to steal this particular package out of all the packages he

handled that day. Finally, Clark admits that he sent a text message to his

confederate after diverting the package of guns, which stated: “Got one comn pow


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pow $ROCAFELLAS$.” (emphasis added). Based on this record, the district court

had sufficient evidence to conclude that Clark was aware that he was stealing

firearms when he stole the package at issue here. Therefore, the district court did

not err by applying the cross reference in § 2B1.1(c)(1)(A).

      AFFIRMED.




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