FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 8, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-11394

Non-Argument Calendar

________________________

D. C. Docket No. 05-00085-CR-FTM-29-SPC

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

RAMIRO HERNANDEZ, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(September 8, 2006)

Before ANDERSON, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

Appellant Ramiro Hernandez appeals his 18-month sentence for possession
This violation is punishable up to five years imprisonment. See Fla. Stat. §§ 775.082(3)(d), 1

796.05(1). 

This violation is punishable up to 10 years imprisonment. See 18 U.S.C. § 2424(a). 2

2

of a firearm by an illegal alien, in violation of 18 U.S.C. §§ 922(g)(5) and

924(a)(2), attacking the district court’s application of a four-level sentencing

enhancement, pursuant to U.S.S.G. § 2K2.1(b)(5), for use or possession of a

firearm in connection with two other felony offenses, namely: (1) “deriv[ing]

support or maintenance in whole or in part from what is believed to be the earnings

or proceeds of such person’s prostitution,” in violation of Fla. Stat. § 796.05(1);1

and (2) failing to file a written statement with the Commissioner of the

Immigration and Naturalization Service (“INS”) within five days of “keep[ing],

maintain[ing], control[ling], support[ing], or harbor[ing] in any house or place for

the purpose of prostitution . . . any individual, knowing or in reckless disregard of

the fact that the individual is an alien,” in violation of 18 U.S.C. § 2424(a). 

2

On appeal, Hernandez argues that the district court clearly erred in finding

that the shotgun he possessed was involved in the other felonies because: (1) he

was not shown to have actually gained earnings, support, or maintenance from

prostitution, as required by Florida state precedent interpreting § 796.05; (2) the

statute sanctions economic gain from prostitution rather than suggesting

punishment for weapons violations; and (3) section 2424(a) is only a ministerial
This guideline provides that “[a]ll counts involving substantially the same harm shall be 3

grouped together into a single Group.” U.S.S.G. § 3D1.2. 

3

reporting requirement, and “[t]he temporary possession of the firearm by

[Hernandez] had nothing to do with the non-reporting to the INS and was therefore

not connected.” He also appears to argue for the first time on appeal that the

offenses under § 796.05(1) and § 2424(a) should have been combined, for

sentencing purposes and pursuant to U.S.S.G. § 3D1.2, with each other and with 3

the offense of conviction because these three offenses occurred contemporaneously

and “although legally distinct offenses, represent[] essentially the same wrongful

conduct[.]” 

“This court reviews the district court’s application and interpretation of the

sentencing guidelines under the de novo standard of review, but reviews its

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

Cir. 2002). The district court’s determination that the defendant use a firearm “in

connection with” another felony offense is reviewed for clear error. United States

v. Whitfield, 50 F.3d 947, 949 n.8 (11th Cir. 1995); see also United States v.

Gainey, 111 F.3d 834, 837 (11th Cir. 1997) (holding that district court’s factual

finding that the defendant possessed firearm “in connection with” his heroin

offense was not clearly erroneous). Because Hernandez did not raise an argument

under § 3D1.2 in the district court, we review this argument for plain error. 
To establish plain error, Hernandez must show that there is: “(1) error, (2) that is plain, and 4

(3) that affects substantial rights. If all three conditions are met, an appellate court may then

exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Shelton, 400 F.3d at 1328-29

(quotations and citations omitted). 

4

See United States v. Shelton, 400 F.3d 1325, 1328-29 (11th Cir. 2005).4

The Sentencing Guidelines provide that, for a defendant like Hernandez,

who was convicted under 18 U.S.C. § 922(g), the base offense level is 14. See

U.S.S.G. § 2K2.1(a)(6), comment. (n.3). “If the defendant used or possessed any

firearm or ammunition in connection with another felony offense; or possessed or

transferred any firearm or ammunition with knowledge, intent, or reason to believe

that it would be used or possessed in connection with another felony offense,” his

offense level is increased by 4 levels, or to a minimum of level 18. Id.

§ 2K2.1(b)(5). The Guidelines define the term “another felony offense” as

“offenses other than explosives or firearms possession or trafficking offenses.” Id.

§ 2K2.1, comment. (n.15). 

Because the Guidelines do not define the phrase “in connection with” in

§ 2K2.1(b)(5), we have held that the phrase should be interpreted expansively, not

restrictively, and “merely reflects the context of [the defendant’s] possession of the

firearm.” See Rhind, 289 F.3d at 695 (brackets in original, quotations and citations

omitted). “[T]he firearm does not have to facilitate the underlying offense.” Id.
5

Additionally, even if the “other” offense occurs contemporaneously with, and

without a distinction of conduct from, the offense of conviction, the four-level

enhancement may still be applied. See United States v. Jackson, 276 F.3d 1231,

1234 (11th Cir. 2001) (upholding enhancement where defendant pled guilty to

being a felon in possession of a firearm, which offense occurred

contemporaneously with the “other” state felony of assault and battery of police

officers). Further, firearm possession is “in connection with” other criminal

activity when the possession“embolden[s]” the defendant to undertake the other

criminal activity. See id. at 1234-35 (noting that when defendants’ possession of

firearms “len[t] support to an inference that the defendants would have, if

necessary, used their firearms in furtherance of their crimes[,]” this inference

permitted a finding that the possession was “in connection with” the crimes of

conviction). 

The district court did not err, plainly or otherwise, in failing to group

Hernandez’s illegal conduct together or clearly err in finding that Hernandez

possessed the shotgun in connection with other offenses. First, Hernandez’s

argument that the two prostitution-related offenses each constituted just “any

other” and not “another” felony offense is without merit because the Guidelines

specifically provide that the term “another felony offense” includes “offenses other
Hernandez’s citation of United States v. Szakacs, 212 F.3d 344 (7th Cir. 2000) (persuasive 5

authority), is unpersuasive. In Szakacs, the defendants were convicted for conspiracy to steal

firearms from a licensed dealer, and the Seventh Circuit refused to apply § 2K2.1(b)(5)’s four-level

enhancement for the “other” state felony of conspiracy to commit burglary because “the state law

offense and the federal offense were essentially the same crime.” See id. at 349-50. Here, however,

Hernandez’s offense of conviction (firearm possession by an illegal alien) is substantively different

than the prostitution-related offenses underlying the enhancement. 

6

than explosives or firearms possession or trafficking offenses.” U.S.S.G. § 2K2.1,

comment. (n.15). Hernandez’s “other offenses” were prostitution-related offenses,

which did not involve explosives, firearms, or trafficking. Likewise, no

“distinction of conduct” between the offense of conviction and the other felony

offense need exist. See Jackson, 276 F.3d at 1234.5

Additionally, Hernandez’s argument that these offenses should have been

grouped together, pursuant to U.S.S.G. § 3D1.2, is without merit. Section 3D1.2

provides that “[a]ll counts involving substantially the same harm shall be grouped

together into a single Group.” U.S.S.G. § 3D1.2 (emphasis added). Hernandez

was only charged with one count of firearm possession by an illegal alien. 

Therefore, there were no counts to be grouped together. Cf. U.S.S.G. § 3D1.2,

comment. (n.6) (providing that firearms counts are to be grouped together when

“[t]he defendant is convicted of three counts of unlicensed dealing in firearms”)

(emphasis added). Thus, the district court did not commit error, plain or otherwise,

in applying the enhancement. 

Furthermore, Hernandez’s argument that these offenses were not “in
Hernandez’s contention that the government did not show that he derived support from 6

prostitution is without merit because he admitted to working for six months as a doorman at a house

of prostitution. Cf. State v. Morris, 540 So.2d 226 (Fla. Dist. Ct. App. 1989) (holding that merely

getting support from someone known to engage in prostitution is insufficient for a conviction under

§ 796.05(1)). 

7

connection with” his offense of conviction conduct also fails. Hernandez admitted

to the facts recalled in the presentence investigation report (“PSI”), which stated

that he worked for approximately six months at a house where he knew there was a

shotgun and loaded it on one occasion; and where he performed the duties of

protecting the house (possibly with the aid of the shotgun), and ensuring that

patrons paid in advance for sex with individuals whom Hernandez believed to be

illegal aliens. 

Under our expansive view of the phrase “in connection with,” Hernandez’s

admissions provided facts upon which the district court could easily determine that

Hernandez’s shotgun possession occurred in connection with both: (1) his

derivation of support or maintenance from prostitution, in violation of Fla. Stat.

§ 796.05(1); and (2) his failure to file a written statement with the Commissioner 6

of the INS within five days of keeping, maintaining, controlling, supporting, or

harboring individuals he knew to be aliens in the house for the purpose of

prostitution, in violation of 18 U.S.C. § 2424(a). See Rhind, 289 F.3d at 695

(concluding that this Court expansively interprets the phrase “in connection with”). 
8

Like the defendants discussed in Jackson, Hernandez’s shotgun possession, which

he admitted served to protect the prostitution house, emboldened him in

undertaking his other criminal activities of earning money from prostitution and

failing to report prostitution performed by illegal aliens. See Jackson, 276 F.3d at

1234-35 (defendants’ firearm possession “len[t] support to an inference that the

defendants would have, if necessary, used their firearms in furtherance of their

crimes”). Accordingly, the district court did not clearly err in applying the fourlevel enhancement, and we affirm Hernandez’s sentence. 

AFFIRMED.