[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12985

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus

PATRICK ABOITE, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:21-cr-20385-JLK-1

____________________

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2 Opinion of the Court 22-12985

Before JILL PRYOR, LAGOA, and BRASHER, Circuit Judges.

PER CURIAM:

Patrick Aboite appeals his 87-month sentence for one count 

of possession of a firearm and ammunition by a convicted felon. 

On appeal, Aboite first argues that the district court clearly erred in 

imposing a four-level enhancement under United States Sentencing Guidelines Manual § 2K2.1(b)(6)(B) for using or possessing a 

firearm in connection with another felony offense. Aboite argues 

that this enhancement is clear error because the other offense involved a different firearm than the one that he was convicted of 

possessing. Second, he argues his 87-month sentence is substantively unreasonable because the district court relied too heavily on 

conduct outside the count to which he pleaded guilty. On both 

fronts, Aboite’s arguments fail. Accordingly, we affirm the district 

court’s sentence.

I.

After a shooting in Miami on March 29, 2021, law enforcement agents watched surveillance footage and saw the shooter’s 

vehicle. Aboite was pulled over the next day while driving a matching vehicle nearby. During a pat-down search, agents discovered a 

loaded .380 caliber pistol in Aboite’s waistband. Because Aboite 

was a convicted felon, the agents arrested him for being a felon in 

possession of a firearm and ammunition. They also obtained a 

search warrant for Aboite’s vehicle. The search of Aboite’s vehicle 

uncovered a loaded .40 caliber pistol that had been reported stolen 

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and small amounts of cocaine and Eutylone. That .40 caliber pistol 

was later determined to have been used to shoot the individual 

(G.S.) on March 29.

Aboite was indicted and charged with two counts of possessing a firearm and ammunition as a convicted felon in violation 

of 18 U.S.C. § 922(g)(1). Count 1 was related to the .40 caliber pistol, which Aboite possessed between March 29, 2021, and April 1, 

2021. Count 2 was related to the .380 caliber pistol—the pistol for 

which he was initially arrested—which Aboite possessed on March 

30, 2021, when he was arrested and which he told law enforcement 

that he had purchased three to four months before he was stopped 

by law enforcement.

The United States executed an oral plea agreement with 

Aboite. Based on that plea agreement, Aboite pleaded guilty to 

Count 2 (.380 caliber pistol possession), and the United States dismissed Count 1 (.40 caliber pistol possession). Aboite and the government also agreed that Aboite’s possession of the stolen .40 caliber pistol made Aboite subject to U.S.S.G. § 2K2.1(b)(4)(A)’s stolen 

firearm sentencing enhancement and that any sentence imposed 

would run concurrently with any state sentence for offenses related 

to possessing these firearms.

The district court found that the victim of the shooting had 

identified Aboite as the shooter and found that both firearms were 

in Aboite’s possession the day after the shooting. The district court 

also found that possessing and using the .40 caliber firearm that 

Aboite used to shoot G.S. was part of the same purpose and plan as 

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that involved with the count to which he pleaded guilty. Moreover, 

the district court found that the .40 caliber pistol was used in connection with another felony offense. Thus, the district court imposed a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for 

using or possessing a firearm in connection with another felony offense. The district court calculated Aboite’s advisory Guidelines 

range to be 70 to 87 months of imprisonment. And after considering the factors under 18 U.S.C. § 3553(a)—with an emphasis on the 

need for deterrence and protection of the public—the district court 

ultimately imposed an 87-month sentence. Aboite appeals.

II.

We review a district court’s legal interpretations and application of the Guidelines to the facts de novo and review its factual 

findings for clear error. See United States v. Zaldivar, 615 F.3d 1346, 

1350 (11th Cir. 2010) (citing United States v. De La Cruz Suarez, 601 

F.3d 1202, 1219 (11th Cir. 2010); United States v. Caraballo, 595 F.3d 

1214, 1230 (11th Cir. 2010)). “A district court’s determination that 

a defendant possessed a gun ‘in connection with’ another felony 

offense is a finding of fact that we review for clear error.” United 

States v. Bishop, 940 F.3d 1242, 1250 (11th Cir. 2019) (citing United 

States v. Whitfield, 50 F.3d 947, 949 & n.8 (11th Cir. 1995)). Moreover, “[w]e review only for clear error the application of the relevant 

conduct [G]uideline in § 1B1.3 to the facts of the case.” United States 

v. Valladares, 544 F.3d 1257, 1267 (11th Cir. 2008) (citing United 

States v. White, 335 F.3d 1314, 1319 (11th Cir. 2003)).

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For a factual finding to be clearly erroneous, we must be 

“left with a ‘definite and firm conviction’” that the district court 

made a mistake. United States v. Smith, 821 F.3d 1293, 1302 (11th 

Cir. 2016) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 

573 (1985)). A factual finding cannot be clearly erroneous just because the factfinder chose between two permissible views of the 

evidence. See id. (quoting Anderson, 470 U.S. at 574). Additionally, 

when reviewing the substantive reasonableness of a sentence, we 

apply a deferential abuse-of-discretion standard. See Gall v. United 

States, 552 U.S. 38, 41, 51 (2007). Therefore, we review one aspect 

of the question in Part III.A de novo and the other aspects for clear 

error and review the question in Part III.B for an abuse of discretion.

III.

A.

The Guidelines provide for a four-level enhancement “[i]f 

the defendant . . . used or possessed any firearm or ammunition in 

connection with another felony offense . . . .” U.S.S.G. 

§ 2K2.1(b)(6)(B). First, we will examine the “any firearm or ammunition” provision to see if the .40 caliber firearm falls under that 

provision. Second, we will examine the “another felony offense” 

provision. In this portion of the analysis, we must compare other 

felonies—even those Aboite was not convicted of—to the felony 

for which Aboite was convicted (felon in possession of a firearm 

and ammunition related to the .380 caliber pistol). Third, we will 

examine the “in connection with” provision. In this portion of the 

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analysis, we must analyze whether the district court properly connected the .40 caliber firearm to those other felonies. Based on the 

record and our analysis, we conclude that the district court 

properly applied the four-level enhancement.

1.

We have held that the term “‘any firearm’ truly means any 

firearm.” United States v. Williams, 431 F.3d 767, 770 (11th Cir. 

2005); see also id. at 770–71 (citing United States v. Sutton, 302 F.3d 

1226, 1227 (11th Cir. 2002)); Sutton, 302 F.3d at 1228 (finding that a 

different “Guideline seems to use ‘the firearm’ to refer to the firearm that the defendant is convicted of possessing” (quoting

U.S.S.G. § 4B1.4(b)(3)(A))). This case law resolves this part of the 

dispute. The use of “any” in § 2K2.1(b)(6)(B) and our decision in 

Williams that “any firearm’ truly means any firearm” establish that 

the .40 caliber pistol could properly be considered by the district 

court in Aboite’s Guidelines calculation if it was used or possessed 

in connection with another felony offense within the meaning of 

the Guidelines and our case law. Williams, 431 F.3d at 770; see also

id. at 772; U.S.S.G. § 2K2.1(b)(6)(B).

2.

Although any firearm can be used under § 2K2.1(b)(6)(B), 

the firearm must be used or possessed in connection with “another 

felony offense.” We have stated that, unless the Guidelines language specifies otherwise, the default rule is that “other offenses 

must be within the relevant conduct of the charged offense.” 

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Williams, 431 F.3d at 772. After we stated this in Williams, the Sentencing Commission added Application Notes 14(A) and 14(E) to 

the United States Sentencing Guidelines Manual’s commentary—

which the parties discuss at length because it is ostensibly relevant. 

The commentary explains that the enhancement at issue here applies if “the firearm or ammunition facilitated, or had the potential 

of facilitating, another felony offense.” U.S.S.G. § 2K2.1, 

cmt. n.14(A). Additionally, the commentary states that when the 

firearm is not cited in the offense of conviction, “[i]n determining 

whether subsection (b)(6)(B) applies, the threshold question for the 

court is whether the two unlawful [use or] possession offenses . . . 

were ‘part of the same course of conduct or common scheme or 

plan.’” Id. § 2K2.1, cmt. n.14(E)(ii) (quoting id. § 1B1.3(a)(2)). However, we need not consider and do not defer to the Guidelines’

commentary if the Guidelines themselves are unambiguous. See

United States v. Dupree, 57 F.4th 1269, 1279 (11th Cir. 2023) (en 

banc).

Because U.S.S.G. § 2K2.1(b)(6)(B) itself did not change and is 

unambiguous, nothing undermines Williams’s continued force nor 

requires our consideration of the more recently added text in the 

commentary. The fact that it discusses a relevant topic does not 

change this result. Therefore, we continue to apply Williams and 

the Guidelines themselves to this question.

Determining whether the other offense was within the relevant conduct involves examining the Guidelines’ application. We 

review the functioning of the Guidelines de novo. See Zaldivar, 615 

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F.3d at 1350 (citing De La Cruz Suarez, 601 F.3d at 1219; Caraballo, 

595 F.3d at 1230). Given that § 2K2.1(b)(6)(B) does not specify otherwise, the other offense must be within the relevant conduct of 

the charged offense, and U.S.S.G. § 1B1.3 applies to determine 

whether it is relevant conduct. See Williams, 431 F.3d at 772. Although Williams was about § 2K2.1(c), this result is buoyed by the 

fact that the four-level enhancement at issue here is categorized as 

a “[s]pecific [o]ffense [c]haracteristic,” U.S.S.G. § 2K2.1(b), and the 

fact that the relevant conduct Guideline (§ 1B1.3) explicitly states 

that it applies to “specific offense characteristics,” id. § 1B1.3(a). 

Therefore, just as we applied § 1B1.3 to determine relevant conduct with respect to § 2K2.1(c) in Williams, we apply that same provision of the Guidelines to determining relevant conduct under 

§ 2K2.1(b)(6)(B). See Williams, 431 F.3d at 772; see also U.S.S.G. 

§ 1B1.3(a).

The district court found that the use and possession of the 

.40 caliber pistol was part of the same purpose and plan as the 

charged felon-in-possession count related to the .380 caliber pistol. 

Upon clear error review of the application of the relevant conduct 

guideline to the facts, we agree. See Valladares, 544 F.3d at 1267 (citing White, 335 F.3d at 1319). There are two potential felonies predicated on Aboite’s use and possession of the .40 caliber pistol: another unlawful possession and attempted murder under Florida 

law for the shooting of G.S. Both constitute relevant conduct with 

respect to the unlawful possession conviction. As we illustrate below, under either path, the enhancement applies.

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First, the two unlawful possession offenses were part of the 

same course of conduct. We agree with our sister circuits that 

“[w]hen a person prohibited from possessing firearms under federal law possesses other firearms in addition to the ones for which 

he was charged, these other uncharged firearms can be ‘relevant 

conduct’ under the Sentencing Guidelines.” United States v. Parlor, 

2 F.4th 807, 812 (9th Cir. 2021) (citing United States v. Nichols, 464 

F.3d 1117, 1123–24 (9th Cir. 2006)); see also United States v. Brummett, 355 F.3d 343, 345 (5th Cir. 2003); United States v. Santoro, 159 

F.3d 318, 321 (7th Cir. 1998); United States v. Windle, 74 F.3d 997, 

1000–01 (10th Cir. 1996); United States v. Powell, 50 F.3d 94, 104 (1st 

Cir. 1995) (“[T]he contemporaneous, or nearly contemporaneous, 

possession of uncharged firearms is . . . relevant conduct in the context of a felon-in-possession prosecution.” (citing United States v. 

Sanders, 982 F.2d 4, 9–10 (1st Cir. 1992)). Section 1B1.3(a)(2) applies 

to this dual felon-in-possession path because § 2K2.1 is listed within 

§ 3D1.2(d)—which 1B1.3(a)(2) cross-references to establish the 

types of crimes to which § 1B1.3(a)(2) applies. Therefore, relevant 

conduct in the dual-possession path is that conduct which is “part 

of the same course of conduct or common scheme or plan as the 

offense of conviction.” U.S.S.G. § 1B1.3(a)(2).

And here, the possession of the .40 caliber pistol is relevant 

conduct. Under these facts, the temporal and spatial proximities of 

the two illegal firearms possessions are close enough to make possession of the .40 caliber pistol within the relevant conduct of the 

illegal possession of the .380 caliber pistol that Aboite was convicted of possessing. They were possessed at the same time—at the 

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time of arrest. And they were possessed in effectively the same 

place—in Aboite’s waistband when he was in the car (.380 caliber 

pistol) versus in the car (.40 caliber pistol). These felonies are linked 

closely enough for possession of the .40 caliber pistol to be relevant 

conduct for purposes of the § 2K2.1(b)(6)(B) sentencing enhancement of Aboite’s conviction for possessing the .380 caliber pistol.

Second, the .40 caliber firearm was used or possessed in connection with the felony shooting—attempted murder under Florida law—which is relevant conduct with respect to the felon-inpossession conviction related to the .380 caliber pistol. For the attempted murder path, § 1B1.3(a)(2) does not apply. See U.S.S.G. 

§ 1B1.3(a)(2); Williams, 431 F.3d at 772–73. Instead, the Guidelines 

require establishing that the shooting “occurred during the commission of the offense of conviction, in preparation for that offense, 

or in the course of attempting to avoid detection or responsibility 

for that offense.” U.S.S.G. § 1B1.3(a)(1).

Here, under the Guidelines, the use and possession of the .40 

caliber pistol to commit attempted murder is relevant conduct 

with respect to the conviction for being a felon in possession of the 

.380 caliber pistol because it “occurred during the commission of 

the offense of conviction.” Id. That is, it occurred during the felonin-possession act of having the .380 caliber pistol. We understand 

the district court to have inferred that Aboite had the .380 caliber 

pistol with him in the car at the time he shot G.S. with the .40 caliber pistol. Aboite has not established that this inference is clear error, and our review of the record counsels against any such 

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conclusion. Aboite had owned the .380 caliber pistol for three to 

four months before he was stopped by law enforcement, and the 

gun was with him the day after the shooting in the same car. Even 

if we would not make the same inference, we cannot say that the 

district court clearly erred in doing so. See Smith, 821 F.3d at 1302 

(quoting Anderson, 470 U.S. at 574).

As a result, his felon-in-possession offense—the felony offense of conviction—was ongoing at the time that he used the .40 

caliber pistol to shoot G.S. Consequently, under the Guidelines, the 

attempted murder of G.S. is relevant conduct with respect to the 

felon-in-possession conviction for purposes of the § 2K2.1(b)(6)(B)

sentencing enhancement.

In short, there are two different felonies related to the .40 

caliber pistol that are both relevant conduct for purposes of applying § 2K2.1(b)(6)(B) to Aboite’s felon-in-possession conviction. 

Thus, the district court did not clearly err in applying this part of 

the Guidelines.

3.

Finally, we address the district court’s “in connection with” 

determination. Both the firearm and the other offense were 

properly used under the Guidelines, but we must still determine 

whether the district court clearly erred in determining that Aboite’s 

firearm was “in connection with” that other felony offense. See

Bishop, 940 F.3d at 1250 (citing Whitfield, 50 F.3d at 949 & n.8). A 

firearm is in connection with the other felony offense if it facilitates 

or could facilitate that other felony offense. The district court 

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found that the victim of the shooting had identified Aboite as the 

shooter and found that both firearms were in Aboite’s possession 

the day after the shooting. Consequently, the district court found 

that the .40 caliber pistol was used in connection with another felony offense. Here, it is the case that the .40 caliber pistol was used 

in connection with two other felony offenses: possession of that 

firearm and the offense of shooting the victim.

The district court’s reasoned analysis of the application of 

this enhancement is not entirely clear about for which of these two 

felonies the enhancement was applied. Indeed, on appeal, Aboite 

focuses on the shooting felony, while the government focuses on 

the dual-possession theory. But we need not decide the exact felony

on which the district court based its application of the enhancement because we would affirm based on either. See United States v. 

Campbell, 26 F.4th 860, 879 (11th Cir. 2022) (en banc) (“[W]e have 

‘discretion to affirm on any ground supported by the law and the 

record that will not expand the relief granted below.’” (quoting Upper Skagit Indian Tribe v. Lundgren, 138 S. Ct. 1649, 1654 (2018)) (citing SEC v. Chenery Corp., 318 U.S. 80, 88 (1943))). Moreover, it is

entirely possible that the district court referred to both, given that 

there were in fact two different felonies in this case. We need only 

decide whether the district court properly found that the .40 caliber 

pistol was used in connection with another felony. It did. On this 

record, Aboite has not established that the district court clearly 

erred in this determination.

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* * *

The district court deliberated the applicability of the enhancement, properly applied it, and chose a permissible view of the 

evidence. See Smith, 821 F.3d at 1302 (quoting Anderson, 470 U.S. at 

574). Therefore, the district court did not err in imposing a fourlevel enhancement under U.S.S.G. § 2K2.1(b)(6)(B).

B.

The party challenging a sentence bears the burden of proving that it is unreasonable based on the record and the 18 U.S.C. 

§ 3553(a) factors. See United States v. Tome, 611 F.3d 1371, 1378 (11th 

Cir. 2010) (citing United States v. Thomas, 446 F.3d 1348, 1351 (11th 

Cir. 2006)). The § 3553(a) factors include (1) “the nature and circumstances of the offense and the history and characteristics of the 

defendant”; (2) “the need for the sentence imposed” (A) “to reflect 

the seriousness of the offense, to promote respect for the law, and 

to provide just punishment for the offense”; (B) “to afford adequate 

deterrence to criminal conduct”; (C) “to protect the public from 

further crimes of the defendant”; and (D) “to provide the defendant 

with needed educational or vocational training, medical care, or 

other correctional treatment in the most effective manner”; 

(3) “the kinds of sentences available”; (4) the Sentencing Guidelines 

range; (5) the pertinent policy statements of the Sentencing Commission; (6) “the need to avoid unwanted sentencing disparities

among defendants with similar records who have been found 

guilty of similar conduct”; and (7) “the need to provide restitution 

to any victims of the offense.” 18 U.S.C. § 3553(a). A district court 

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must consider all § 3553(a) factors but need not give all factors 

equal weight. See United States v. Rosales-Bruno, 789 F.3d 1249, 1254 

(11th Cir. 2015) (citing United States v. Shaw, 560 F.3d 1230, 1237 

(11th Cir. 2009)).

“A district court abuses its discretion when it (1) fails to afford consideration to relevant factors that were due significant 

weight, (2) gives significant weight to an improper or irrelevant factor, or (3) commits a clear error of judgment in considering the 

proper factors.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 

2010) (en banc) (quoting United States v. Campa, 459 F.3d 1121, 1174 

(11th Cir. 2006) (en banc)). The district court may attach greater 

weight to one § 3553(a) factor than others. See Rosales-Bruno, 789 

F.3d at 1254 (quoting Gall, 552 U.S. at 57). Moreover, “[t]he decision about how much weight to assign a particular sentencing factor is ‘committed to the sound discretion of the district court.’” See

Rosales-Bruno, 789 F.3d at 1254 (quoting United States v. Williams, 

526 F.3d 1312, 1322 (11th Cir. 2008)).

But it is still possible for the district court to balance the factors incorrectly: “a district court commits a clear error of judgment 

when it considers the proper factors but balances them unreasonably.” Irey, 612 F.3d at 1189 (citing Ameritas Variable Life Ins. Co. v. 

Roach, 411 F.3d 1328, 1330 (11th Cir. 2005)). Thus, provided the 

proper factors are considered, we consider a sentence substantively 

unreasonable only if “we ‘are left with the definite and firm conviction that the district court committed a clear error of judgment in 

weighing the § 3553(a) factors by arriving at a sentence that lies 

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outside the range of reasonable sentences dictated by the facts of 

the case.” See id. at 1190 (quoting United States v. Pugh, 515 F.3d 

1179, 1191 (11th Cir. 2008)) (citing Shaw, 560 F.3d at 1238; United 

States v. McBride, 511 F.3d 1293, 1297–98 (11th Cir. 2007); United 

States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007)).

“We are not often ‘left with [that] definite and firm conviction’ because, as we have explained, our examination of the sentence is made ‘through the prism of abuse of discretion.’” Id. (alteration in original) (quoting Pugh, 515 F.3d at 1191). Additionally, 

“although we do not automatically presume [that] a sentence 

within the [G]uidelines range is reasonable, we ‘ordinarily . . . expect [it] . . . to be reasonable.’” See United States v. Hunt, 526 F.3d 

739, 746 (11th Cir. 2008) (third alteration in original) (quoting 

United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005)).

Here, Aboite fails to meet his burden to establish that his 87-

month sentence was substantively unreasonable. The district court

considered the § 3553(a) factors as required. See Rosales-Bruno, 789 

F.3d at 1254. It was within its discretion to weigh the factors of deterrence and protection of the public more seriously than other factors. See id. It was also permitted to consider the seriousness of the 

offense conduct, including the conduct beyond the count to which 

Aboite pleaded guilty. See id. Furthermore, Aboite’s sentence fell 

within the Guidelines range—an indicator of reasonableness. See

Hunt, 526 F.3d at 746. Based on these facts, the sentence of 87-

months’ imprisonment is not unreasonable. In conclusion, because 

the district court did not abuse its discretion in weighing the 

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§ 3553(a) factors and considering the facts surrounding this offense, 

Aboite’s total sentence was not substantively unreasonable.

IV.

For the reasons discussed above, we AFFIRM the district 

court’s imposition of Aboite’s 87-month sentence.

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