[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 17

- 12041 Non

- Argument Calendar

________________________ D.C. Docket No. 1:16

- cr - 20726

- RNS

- 1 UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus JAMES BELL, Defendant

- Appellant.

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

________________________ (July 16, 2018) Before MARCUS , WILSON and JORDAN , Circuit Judges.
PER CURIAM: James Bell appeals following his conviction and 264

- month sentence for possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1). In calculating his sentence, the district court relied on the guideline for attempted murder,

Case: 17-12041 Date Filed: 07/16/2018 Page: 1 of 52 because he possessed the firearm in connection with a shooting. On appeal, Bell argues that the district court erred in imposing a four

- point enhancement for injury to a victi m because there was insufficient evidence that he caused the injury and that the injury was likely to be permanent. 1 After careful review, we affirm. We review a district court’s application of the guidelines to the facts de novo and all factual findings for clear error. United States v. Martikainen , 640 F.3d 1191, 1193 (11th Cir. 2011). A district court’s determination of whether a victim’s injuries meet the threshold for an enhancement is a factual finding. United States v. Torrealba , 339 F.3d 1238, 1 246 (11th Cir. 2003). We will not find clear error “unless our review of the record leaves us with the definite and firm conviction that a mistake has been committed.” United States v. Poirier , 321 F.3d 1024, 1035 (11th Cir. 2003) (quotation omitted)

. If the victim of an attempted murder sustained a permanent or life

threatening bodily injury, a four

- level increase to the offense level applies. U.S.S.G. § 2A2.1(b)(1). A “permanent or life

- threatening bodily injury” is defined, in part, as “ an obvious disfigurement that is likely to be permanent.” Id . § 1B1.1, cmt. (n.1(J)). Bell first argu es that the district court err ed in applying the four

- point enhancement to his sentence for attempted murder based on the injury that the

1 In his initial brief, Bell challenged the validity of his guilty plea, but concedes in his reply brief that the court did not err in accepting the plea.

Case: 17-12041 Date Filed: 07/16/2018 Page: 2 of 53 victim, Darius Davis , suffe red , because a nearby shooting had occurred simultaneously to the one attributed to Bell and there was insufficient evidence that Bell was the one who shot Davis in the face. We disagree . For starters , bystander Alexey Aguilar testified at trial that he had witnessed a shooting outside of a stor e

on Northwest 191st Street in Miami Gardens on May 31, 2016 , in which two individuals had been arguing until one drew a gun and fired . Aguilar said that after the shooting , both men ran from the scene , and as Aguilar drove away , he called 911, described the shooter, and told the operator that he saw the shooter get into a white Impala with a damaged passenger side door. He then saw law enforcement stop the vehicle two minutes later. Sylvia Caceres, a patrol officer, testified at trial that she had responded to the shooting on May 31 and conducted a traffic stop on a white Impala, and Bell was in the passenger seat with a woman driving. When a black sweatshirt that matched the description of the shoo ter’s clothing was found in the backseat, Bell was detained for questioning. Officers eventually searched the woman’s purse and located a firearm inside, loaded with ammunition. In a 911 call played for the jury, Aguilar reported that it looked like the victim was shot near the face, but he was not sure if the bullet missed. Omar Vega, a paramedic firefighter, testified that when he found Davis at “180

- something” Street and 27th Avenue Northwest , he treated him for a superficial bullet wound to

Case: 17-12041 Date Filed: 07/16/2018 Page: 3 of 54 his face

. Shanika Slaughter , part of the Miami Gardens Crime Scene Unit , testified that she had responded to Davis’s shooting, and had photographed him on 185th Street. She said he had an app arent gunshot wound to his face. A firearms expert did not testify at trial because j ust before the government presented him , Bell changed his plea to guilty. At sentencing, Bell’s presentence investigation report (“PSI”) summarized the trial evidence and added additional facts, including that: (1) a shell casing found at the scene of the shooting matched the firearm found in Bell’s possession; (2) a surveillance video of the shooting at Northwest 191st Street shows the shooter firing at the victim’s face; (3) Aguilar told 911 operators that the shooter fired at the victim’s face; (4) Davis suffered a gunshot wound to the face ; and (5) Davis was likely to suffer permanent scarring. On this record , the court did not clearly err in finding that Bell is the person who caused Davis’s injury. Togethe r with Officer Caceres’s testimony, the discovery of a shell casing at the scene that matched the firearm found in Bell’s possession, and the video surveillance of the shooting, Aguilar provided testimony to support a finding

-- and Bell has not expressly disputed on appeal

-- that Bell fired a gun at another person’s face. In addition, Vega and Slaughter testified that Davis was treated nearby shortly thereafter for a gunshot wound to his face.
B ecause witnesses provided testimony to support findings tha t Bell fired a gun at

Case: 17-12041 Date Filed: 07/16/2018 Page: 4 of 55 another person’s face and the alleged victim was treated nearby shortly thereafter for a gunshot wound to his face , the record does not suggest that the district court clearly erred in finding that Bell shot Davis. See U.S.S.G. § 2A 2.1(b)(1); Poirier , 321 F.3d at 1035. Moreover, there was no clear error in the finding that the victim’s scar was an obvious disfigurement that was likely to be permanent . A review of the photograph that the court relied on

-- even if taken near the tim e of injury

-- does not leave us with any indication that a mistake was made. See U.S.S.G. § 1B1.1, cmt. (n.1(J)); Poirier , 321 F.3d at 1035. Accordingly, we affirm. 2
AFFIRMED.

2 In addition, Bell’s motions for leave to file a supplemental bri ef and for a stay of appellate proceedings are DENIED.

Case: 17-12041 Date Filed: 07/16/2018 Page: 5 of 5