Case: 14-10059   Date Filed: 07/21/2014   Page: 1 of 5


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-10059
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:13-cr-20390-WJZ-1

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

DIEGO JOSEPH SAUNDERS,

                                                         Defendant-Appellant.

                       ________________________

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

                              (July 21, 2014)




Before PRYOR, MARTIN and BLACK, Circuit Judges.

PER CURIAM:
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       Diego Joseph Saunders appeals his 57-month sentence, imposed after he

pled guilty to being a felon in possession of a firearm and ammunition, in

violation of 18 U.S.C. § 922(g)(1). Saunders contends his two-level

sentencing enhancement for possessing a stolen firearm, pursuant to U.S.S.G.

§ 2K2.1(b)(4)(A), was improper. Saunders asserts the district court erred in

considering evidence—specifically, reports from the National Crime Information

Center (NCIC) showing several of the firearms he possessed had been reported

stolen—which lacked sufficient indicia of reliability, and in finding based on those

reports that at least one of the firearms he possessed was stolen. He also argues,

for the first time on appeal, the district court erred in failing to make explicit

findings of fact regarding the reliability of the evidence and violated his due

process rights by considering unreliable evidence. After review, 1 we affirm

Saunders’ sentence.

       When a defendant challenges a fact underlying a sentencing enhancement,

the government bears the burden of proving that fact by a preponderance of the

evidence. United States v. Bradley, 

, 1283, 1286-1287 (11th Cir.

2011). In determining whether factors exist that would enhance a sentence, the

district court can consider any information, including hearsay, regardless of its


       1
         We review a district court’s factual findings on sentencing matters, including
enhancements, for clear error. United States v. Bradley, 

, 1283 (11th Cir. 2011).
Where a defendant fails to clearly state the grounds for an objection in the district court, we
review only for plain error. United States v. Zinn, 

, 1087-88 (11th Cir. 2003).
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admissibility at trial, if (1) the evidence has sufficient indicia of reliability, (2) the

court makes explicit findings of fact as to credibility, and (3) the defendant has an

opportunity to rebut the evidence. United States v. Baker, 

, 1253

(11th Cir. 2005). Indicia of reliability are sufficient when they support the

probable accuracy of the matter asserted. 

U.S.S.G. § 6A1.3(a). The

absence of explicit findings on the reliability of hearsay statements used at

sentencing “does not necessarily require reversal or remand where the reliability of

the statements is apparent from the record.” United States v. Gordon, 

, 761 (11th Cir. 2000).

       Furthermore, a defendant has a due process right not to be sentenced based

on false or unreliable information. United States v. Ghertler, 

, 1269

(11th Cir. 2010). To show this right was violated, a defendant must show “(1) that

the challenged evidence is materially false or unreliable and (2) that it actually

served as the basis for the sentence.” 

court did not clearly err in imposing the two-level enhancement

for a stolen firearm. First, the district court did not clearly err by considering the

NCIC reports at sentencing because they bore sufficient indicia of reliability to

support the probable accuracy of the fact that at least one of Saunders’ firearms

was reported stolen. The reports contain sufficient information, including the

firearms’ serial numbers, to show the firearms listed are the ones Saunders


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possessed. The reports also clearly list Saunders’ AMT as being reported “stolen,”

and the parties do not dispute this fact. Because this Court has recognized NCIC

reports as generally reliable in other contexts, the district court did not clearly err

in determining that a theft report was actually made. See United States v.

McDonald, 

, 553-54 (5th Cir. 1979)2 (recognizing NCIC printouts are

reliable enough to form the basis of the reasonable belief needed to establish

probable cause for arrest).

       Second, the district court did not clearly err in finding, by a preponderance

of the evidence and based on the reports, that at least one of Saunders’ firearms

was actually stolen. Because the district court only needed to find that one firearm

was stolen, the fact that one was reported as “recovered” is irrelevant if the other’s

reported theft was sufficient to permit the court to find that it was stolen. See

U.S.S.G. §2K2.1(b)(4)(A). Saunders’ failure to produce evidence contradicting the

reports or undermining the truth of their assertions supported the district court’s

finding. Although Saunders claims that straw buyers often file false reports of

stolen firearms, he did not support this theory with any evidence. Saunders

suggests the timing of the reports undermines their reliability, but it is not clear

why a report filed on December 20, 2011, for a firearm he sold on September 7,


       2
          In Bonner v. City of Prichard, 

, 1209 (11th Cir.1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.
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2012, should be considered unreliable. While the assertion the firearm was stolen

was not consistent with or corroborated by other evidence, given this Court’s

recognition of the general reliability of NCIC reports, the district court chose

between two permissible views of the evidence and did not clearly err in finding

that at least one of Saunders’ firearms was stolen.

      Third, the district court did not plainly err by failing to make explicit

findings of fact regarding the reports’ reliability. Immediately after overruling

Saunders’ objection to the two-level enhancement, the district court stated, “The

court finds by a preponderance of the evidence based on the NCIC report presented

to the court that the two firearms in question were reported as stolen and, therefore,

the court finds that they were stolen firearms.” Regardless of whether this is a

sufficiently explicit finding of reliability, the district court did not need to make

such a finding at all, because NCIC reports are generally recognized as reliable,

making the reliability of the evidence apparent from the record. See 

; 

.

      Lastly, because the NCIC reports were sufficiently reliable, Saunders’ claim

the district court committed a due process violation by relying on them at

sentencing fails under plain error review. See 

.

      Accordingly, we affirm Saunders’ sentence.

      AFFIRMED.


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