FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

June 26, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-15730

Non-Argument Calendar

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D. C. Docket No. 03-00441-CR-T-17-EAJ

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

ANDRE RUSSELL SIMMONS, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(June 26, 2006)

Before TJOFLAT, DUBINA and HULL, Circuit Judges.

PER CURIAM:

Appellant Andre Russell Simmons appeals his 77-month sentence, imposed
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at re-sentencing for possession of a firearm by a convicted felon, in violation of 18

U.S.C. §§ 922(g)(1) and 924(a)(2). On appeal, Simmons argues that the district

court erred in applying a four-level enhancement under U.S.S.G. § 2K2.1(b)(5)

when his possession of the firearm was merely incidental to, not “in connection

with,” another felony offense. Simmons also argues that, because the Sentencing

Guidelines created legally binding maximum sentences when he committed his

offense, his sentence could be no higher than the maximum sentence provided for

under the guidelines and based on only the facts that were charged in the

indictment. Simmons further argues that the retroactive application of the advisory

guidelines violated his due process rights and ex post facto principles. 

I.

We “review[] the district court’s application and interpretation of the

sentencing guidelines under a de novo standard of review, but review[] its findings

of fact for clear error.” United States v. Rhind, 289 F.3d 690, 693 (11th Cir. 2002)

(citation omitted). A district court may use facts admitted by a defendant to

enhance his sentence. United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir.

2005). Applying the advisory guidelines, a district court may use a preponderance

of the evidence standard to make factual findings beyond the charges in the

indictment or a defendant’s admissions. United States v. Chau, 426 F.3d 1318,
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1324 (11th Cir. 2005). 

Section § 2K2.1(b)(5) provides for a four-level enhancement “[i]f the

defendant . . . possessed any firearm . . . in connection with another felony

offense.” U.S.S.G. § 2K2.1(b)(5). This section of the guidelines does not define

the phrase “in connection with.” See U.S.S.G. § 2K2.1, comment. (n. 1). A district

court’s determination that a firearm was possessed “in connection with” another

felony offense is a factual one. See United States v. Whitfield, 50 F.3d 947, 949 &

n. 8 (11th Cir. 1995). We have refused to adopt a more restrictive approach of

interpreting “in connection with” used in other courts. United States v. Young, 115

F.3d 834, 837-38 (11th Cir. 1997). We have considered the definition of “in

connection with” in other sections of the guidelines and have determined that the

phrase “merely reflects the context of the defendant’s possession of the firearm”

and the firearm “does not have to facilitate the underlying offense.” Rhind, 289

F.3d at 695 (citations omitted). The enhancement may be applied when the two

felony offenses are for different conduct, but are committed contemporaneously. 

United States v. Jackson, 276 F.3d 1231, 1234 (11th Cir. 2001).

After reviewing the record, we conclude that the district court did not err in

making the factual finding that Simmons possessed a firearm in connection with

armed trespassing, nor in applying a four-level enhancement under § 2K2.1(b)(5). 
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II. 

When a defendant raises and then knowingly withdraws an objection to his

sentence, we deem the objection waived and will not review it on appeal. United

States v. Masters, 118 F.3d 1524, 1526 (11th Cir. 1997). “The doctrine of invited

error is implicated when a party induces or invites the district court into making an

error. Where invited error exists, it precludes a court from invoking the plain error

rule and reversing.” United States v. Silvestri, 409 F.3d 1311, 1327-28 (11th Cir.),

cert. denied, 126 S. Ct. 772 (2005) (citation and quotation omitted). 

We have held that “the use of extra-verdict enhancements in an advisory

guidelines system is not unconstitutional.” United States v. Rodriguez, 398 F.3d

1291, 1301 (11th Cir.) cert. denied, 125 S. Ct. 2935 (2005). We have also held

that the retroactive application of the remedial holding in Booker does not violate

ex post facto principles. United States v. Duncan, 400 F.3d 1297, 1307-08 (11th

Cir.), cert. denied, 126 S. Ct. 432 (2005).

We conclude from the record that, as Simmons specifically withdrew his

Blakely objection at the re-sentencing hearing, he has waived any constitutional

error based on Blakely, and we will not review that issue. Also, Simmons sought

re-sentencing in light of Booker, and, thus, invited the error of which he now

complains concerning retroactive application. Moreover, we are bound by prior
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precedent holding that the use of extra-verdict enhancements in an advisory

guidelines systems is not unconstitutional and that the retroactive application of the

remedial holding in Booker does not violate ex post facto principles. Accordingly,

we affirm Simmons’s 77-month sentence.

AFFIRMED.