NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 16-3203
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                                  JEROME EDWARDS,

                                                 Appellant
                                      _____________

                 On Appeal from the United States District Court for the
                           Eastern District of Pennsylvania
                             (D.C. No. 2:11-cr-00670-001)
                       District Judge: Hon. Gene E. K. Pratter
                                   _____________

                       Submitted under Third Circuit L.A.R. 34.1(a)
                                      June 5, 2017

      Before: CHAGARES, GREENAWAY, JR., and VANASKIE, Circuit Judges

                                   (Filed: July 28, 2017)
                                      _____________

                                        OPINION
                                      _____________




       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
CHAGARES, Circuit Judge.

       On November 19, 2013, a federal jury convicted the defendant, Jerome Edwards

(“Edwards”), of two counts of robbery which interferes with interstate commerce, in

violation of 18 U.S.C. § 1951(a), and acquitted him of two counts of using, carrying, and

brandishing a firearm during and in relation to a crime of violence, in violation of 18

U.S.C. § 942(c). At sentencing, the District Court applied a five-level enhancement,

pursuant to U.S.S.G. § 2B3.1(b)(2)(C), for brandishing or possessing a firearm during a

robbery. Edwards appeals his sentence and conviction, arguing that the District Court

committed clear error when it applied the five-level enhancement in light of the fact that

he was acquitted of the firearms charges. For the reasons that follow, we will affirm.

                                             I.

       Because we write exclusively for the parties, we set forth only those facts

necessary to our disposition. Edwards was charged in relation to two robberies that took

place in 2011. On the night of August 16, 2011, Edwards robbed a Wendy’s restaurant

located in Philadelphia, Pennsylvania. He entered the restaurant, pulled a ski mask over

his face, removed a handgun from his waistband, and approached the cash register. He

stood on the counter, pointed the gun at the cashier, and demanded money. The cashier

backed away from the cash register and Edwards took $216 from the register and fled.

The robbery was captured on surveillance cameras, and employees later identified

Edwards as the perpetrator of the robbery.

       At approximately 2:45 a.m. on August 18, 2011, Edwards robbed a McDonald’s

restaurant, also in Philadelphia, Pennsylvania. He approached the drive-thru window,

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threw a boulder through it, and climbed through the opening created by the boulder. He

then drew a handgun, threatened to kill everyone inside, and demanded money. Several

employees ran to hide. Edwards pursued one of them through the kitchen and, seeing a

police officer, fled through the drive-thru window. He did not take anything from the

restaurant. Video surveillance captured the events, and employees later identified

Edwards as the one who robbed the restaurant. No physical evidence was recovered in

relation to either robbery.

       At trial, the video surveillance of both robberies was introduced. In addition, two

officers testified that a gun was used during the robberies. See Supplemental Appendix

4, 8-10. Employees of both restaurants also testified that Edwards brandished a firearm

during the robberies. For example, a Wendy’s employee, Yanhe Plummer, testified that

she was “robbed at gunpoint,” Appendix (“App.”) 30, and that she “saw the gun,” App.

31. A McDonald’s employee, Ashley Saunders, testified that she saw Edwards bring a

gun into the store. App. 56-57. Another McDonald’s employee, Julius St. John, testified

that he “saw the gun come out.” App. 88. On cross examination, Plummer admitted that

she did not “know guns,” and, although it looked like a real gun, she could not definitely

say that it was not fake. App. 46, 51. Saunders admitted that she was not “an expert on

guns,” that she didn’t touch the gun, did not know if it had bullets in it, and did not know

if it could hold bullets. App. 79-80. Plummer and Saunders testified that the gun was

black, and St. John testified that the gun was silver. App. 88-89.

       The jury convicted Edwards of the robbery charges, but acquitted him of the

firearms charges. At sentencing, the District Court applied a five-level enhancement

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pursuant to U.S.S.G. § 2B3.1, finding that a preponderance of the evidence showed that

Edwards brandished or possessed a firearm. The District Court sentenced him to 144

months of imprisonment, a three-year term of supervised release, a mandatory special

assessment of $200, and restitution in the amount of $216. Edwards’s appeal is timely.1

                                            II.2

       On appeal, Edwards contends that the District Court committed clear error by

applying the five-level enhancement, pursuant to U.S.S.G. § 2B3.1(b)(2)(C), for

brandishing a firearm because there was insufficient evidence to support the

enhancement. “[T]he burden of proof for facts relevant to sentencing [is] preponderance

of the evidence.” United States v. Grier, 

, 568 (3d Cir. 2007) (en banc).

“[A] jury's verdict of acquittal does not prevent the sentencing court from considering

conduct underlying the acquitted charge, so long as that conduct has been proved by a

preponderance of the evidence.” United States v. Watts, 

, 157 (1997) (per

curiam). We “review factual findings relevant to the Guidelines for clear error and . . .


1
  Edwards’s counsel did not file a timely appeal, but Edwards later filed habeas petition,
pursuant to 28 U.S.C. § 2255, to contest the five-level enhancement. He argued that the
enhancement was improper in light of his acquittal on the firearms counts, that his
counsel was ineffective for failing to object to the enhancement, and that his counsel was
ineffective for failing to timely appeal despite his request to do so. The District Court
denied his petition with respect to the propriety of the five-level enhancement and with
respect to Edwards’s argument that his attorney was ineffective for failing to object to the
enhancement. However, the District Court granted a hearing to determine the merits of
his argument that his attorney was ineffective for failing to appeal, and the court
appointed counsel to represent him. After the hearing and supplemental briefing by the
parties, the District Court granted his petition with respect to this issue and then
resentenced Edwards to an identical sentence. Edwards timely appealed.
2
  The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231, and we
have jurisdiction pursuant to 28 U.S.C. § 1291.
                                             4
[we] exercise plenary review over a district court’s interpretation of the Guidelines.”

. “A finding is ‘clearly erroneous' when[,] although there is

evidence to support it, the reviewing [body] on the entire evidence is left with the definite

and firm conviction that a mistake has been committed.” 

original)

(quoting Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S.

Cal., 

, 622 (1993)).

       The five-level enhancement provided for in U.S.S.G. § 2B3.1(b)(2)(C) is applied

when, during a robbery, “a firearm was brandished or possessed.” U.S.S.G.

§ 2B3.1(b)(2)(C). Edwards concedes that he “brandished and possessed an object that he

implied was a firearm” during the robberies but contends that there is not a

preponderance of evidence to establish that the object was an actual firearm, as opposed

to a toy or fake gun. Edwards’s Br. 11.

       The District Court acknowledged that the jury did not find beyond a reasonable

doubt that a firearm was used or brandished but the court was “very much comfortable

with understanding the evidence as being at least a preponderance of the evidence that a

firearm was used in each instance.” App. 125. The District Court specifically noted the

video footage, still photographs of the robberies, and the witness testimony as supporting

his conclusion. His finding was not clearly erroneous. Although defense counsel elicited

some testimony during cross-examination that cast doubt on whether or not the gun was

real, there was sufficient evidence to support the District Court’s conclusion that it was

and we are not “left with the definite and firm conviction that a mistake has been

committed.” 

(quoting Concrete 

).

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                                    III.

For the foregoing reasons, the judgment of the District Court will be affirmed.




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