[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-10779

Non-Argument Calendar

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UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

CEDRICK DURHAM, JR., 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:22-cr-00170-TPB-MRM-1

____________________

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2 Opinion of the Court 23-10779

Before ROSENBAUM, BRASHER, and ABUDU, Circuit Judges.

PER CURIAM:

Cedric Durham, Jr., appeals his sentence of 48 months of imprisonment for possession of a firearm and ammunition after a felony conviction, in violation of 18 U.S.C. § 922(g)(1). Durham was 

involved in a shooting outside of a bowling alley in Tampa, Florida, 

during which he exchanged gunfire with other individuals and suffered a gunshot wound to his right leg. Based on that conduct, the 

district court applied a four-level guideline enhancement under 

U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm in connection 

with another felony offense. Durham maintains that the enhancement does not apply because his conduct was justified by defense 

of self and others. After reviewing available surveillance footage of 

the incident, the district court applied the enhancement because, in 

its view, Durham’s conduct went beyond self-defense. That finding is not clearly erroneous, so we affirm Durham’s sentence. 

I.

On March 6, 2022, Durham and a group of friends, including 

Jamal Jackson, arrived at Pin Chasers Bowling Alley in Tampa, 

Florida, and began walking from the parking lot to the entrance. 

On the way, Durham stopped and exchanged words with members 

of another group who were standing in the parking lot, while Jackson attempted to pull Durham away. Durham then followed the 

rest of his group toward the front entrance to the bowling alley. 

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Surveillance footage shows that, as Durham’s group approached the door, individuals in the other group fired shots toward the bowling alley’s front entrance. Durham’s group scattered, some running inside for shelter and others taking cover outside. Durham retreated inside the bowling alley, firing shots back 

toward the parking lot with the firearm he had in his possession as 

he entered. After passing the check-in counter inside, Durham returned to the front doors with his gun drawn and continued shooting into the parking lot, moving in and out of the front vestibule as 

he fired. 

Police recovered more than 30 spent rounds of 9mm ammunition at the front entrance. These rounds were forensically linked 

to Durham’s gun, which was equipped with a high-capacity magazine. Durham, Jackson, and one of their friends all sustained gunshot wounds. 

II.

Durham was charged with and pled guilty to one count of 

possession of a firearm and ammunition after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). 

Durham’s presentence investigation report (“PSR”) calculated a total offense level of 21, which included a four-level increase 

for using a firearm or ammunition “in connection with another felony offense” under U.S.S.G. § 2K2.1(b)(6)(B). According to the 

PSR, “[s]urveillance video recordings show that after retreating 

into the bowling alley, the defendant returned to the entrance several times and shot at least 32 rounds into the parking lot.” That 

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conduct, the PSR stated, could be “considered a number of felony 

offenses, including Aggravated Assault with a Firearm and Shooting Into [a Building] or Throwing Deadly Missiles.”

Durham objected to the § 2K2.1(b)(6) enhancement, contending that he had been the “victim of an attempted murder” and 

had “returned fire in an attempt to defend himself and his friends.”

He also filed a sentencing memorandum, arguing that he was the 

victim of an “unprovoked attack” and that he was justified in using 

deadly force under Fla. Stat. § 776.012(2). In response, the probation officer maintained that the enhancement was appropriate because surveillance video showed that “after retreating into the relative safety of the bowling alley, where the perpetrator(s) did not 

follow, the defendant returned to the entrance several times and 

shot at least 32 rounds into the parking lot” in a “reckless exchange 

of gunfire.” 

At sentencing, Durham maintained that he lacked the criminal intent necessary for aggravated assault or shooting into a building and that his conduct was justified by defense of self and others. 

The government responded that Durham had “already retreated” 

and was “no longer in danger” when he chose to reengage and “discharge[] 30 rounds.”1

1 The parties also disputed whether Durham, during the initial verbal altercation in the parking lot, lifted his shirt to display the firearm in his possession. 

The district court indicated that this dispute did not matter to its decision. 

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The district court viewed the available surveillance videos of 

the incident—two videos of the parking lot from different angles, 

and one video from inside the bowling alley looking toward the 

front entrance—with some explanatory comments by the parties. 

Durham personally stated that, after he went inside, he returned to 

the front vestibule and continued shooting because his girlfriend 

and her best friend, who was shot, were still outside. Defense 

counsel likewise emphasized that Durham not only was protecting 

himself, but also “was trying to protect against his friends being 

shot who were still stuck outside in the open and still being shot 

at.” 

The district court overruled Durham’s objection, finding 

that he was “not engaging in self-defense after he came back into 

the bowling alley,” which the court described as a “breaking point.” 

Although it “happened very quickly,” the court stated, at that point 

he had “stopped at being on defense and go[ne] on offense.” The 

court applied the § 2K2.1(b)(6) enhancement and calculated a 

guideline range of 41 to 51 months based on a total offense level of 

21 and a criminal history category of II. 

Ultimately, the district court sentenced Durham to a withinguideline sentence of 48 months. The court explained that, while 

“there was a self-defense aspect” to Durham’s conduct and he had 

accepted responsibility, he had “just got out of prison for a gun” 

conviction and was “not allowed to have a gun at all, even for selfdefense.” Durham appeals.

III.

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“We review the district court’s factual findings at sentencing 

under the clearly erroneous standard, while its application of law 

to those facts is subject to de novo review.” United States v. Jones, 32 

F.3d 1512, 1517 (11th Cir. 1994). “A factual finding is clearly erroneous when although there is evidence to support it, the reviewing 

court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Morrissette-Brown v. 

Mobile Infirmary Med. Ctr., 506 F.3d 1317, 1319 (11th Cir. 2007) (quotation marks omitted). So long as the district court’s view of the 

evidence is “plausible in light of the record viewed in its entirety,” 

it “cannot be clearly erroneous.” Anderson v. City of Bessemer City, 

N.C., 470 U.S. 564, 574 (1985). 

In gun-possession cases, a four-level guideline enhancement 

applies if the defendant “used or possessed any firearm in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). The 

phrase “another felony offense” includes state offenses punishable 

by imprisonment for a term of more than one year, regardless of 

whether the defendant was charged with that offense. United States 

v. Smith, 480 F.3d 1277, 1280 (11th Cir. 2007); see U.S.S.G. § 2K2.1, 

cmt. n.14. The government bears the burden of establishing by a 

preponderance of the evidence the facts necessary to support the 

sentencing enhancement. Smith, 480 F.3d at 1280. 

In Durham’s view, whether the § 2K2.1(b)(6)(B) enhancement applies depends on whether he was acting in defense of self 

or others. Durham maintains that his actions “were reasonable and 

justified to protect himself and his friends who were still outside,” 

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and that there is “insufficient proof” that his actions exceeded the 

bounds of self-defense. He asserts that our review is de novo, not 

for clear error, because the court’s findings were based on video 

evidence and not “the credibility of the witnesses,” and because the 

court’s ruling “involve[d] the application of the facts to the law.”

The government, in response, does not dispute that the enhancement would not apply if Durham had acted entirely in self-defense, 

but it contends that the court’s contrary finding is supported by the 

record. 

The doctrine of self-defense “is an affirmative defense that 

has the effect of legally excusing the defendant from an act that 

would otherwise be a criminal offense.” Mosansky v. State, 33 So. 

3d 756, 758 (Fla. 1st DCA 2010). “A person may use deadly force 

in self-defense if he or she reasonably believes such force is necessary to prevent imminent death or great bodily harm.” Rasley v. 

State, 878 So. 2d 473, 476 (Fla. 1st DCA 2004); see Fla. Stat. 

§ 776.032(1).2 But a “defendant who is engaged in unlawful activity 

2 Section 776.032(1) states,

A person is justified in using or threatening to use deadly force 

if he or she reasonably believes that using or threatening to use 

such force is necessary to prevent imminent death or great 

bodily harm to himself or herself or another or to prevent the 

imminent commission of a forcible felony. A person who uses 

or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to 

stand his or her ground if the person using or threatening to 

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. . . has a duty to retreat and must use all reasonable means in his 

power, consistent with his own safety, before his use of deadly 

force will be justified.” Jimenez v. State, 353 So. 3d 1286, 1288 (Fla. 

2d DCA 2023). It is undisputed that Durham was engaged in unlawful activity—possession of a firearm as a convicted felon—and 

so had a duty to retreat. 

Durham has not shown that the district court erred in applying the § 2K2.1(b)(6)(B) enhancement. For starters, our review of 

the court’s finding that Durham’s conduct went beyond self-defense is for clear error because, under Florida law, “[t]he question 

of self-defense is one of fact.” Dias v. State, 812 So. 2d 487, 491 (Fla. 

Dist. Ct. App. 2002). The mere fact that the court based its finding 

on video evidence rather than witness credibility does not mean 

we may exercise de novo review. See Anderson, 470 U.S. at 574 (explaining that clear-error review applies “even when the district 

court’s findings do not rest on credibility determinations, but are 

based instead on physical or documentary evidence or inferences 

from other facts”). So we may not reverse the court’s findings as 

to self-defense so long as they were “plausible in light of the record 

viewed in its entirety.” Id.

use the deadly force is not engaged in a criminal activity and is 

in a place where he or she has a right to be.

Durham agreed below that the second sentence of this paragraph—the “stand 

your ground” component—did not apply because he was unlawfully possessing a firearm when the events occurred. 

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And here, based on the entire record, we are not left with a 

definite and firm conviction that the district court made a mistake 

in finding that Durham’s conduct at the bowling alley was not fully 

justified by self-defense. See Morrissette-Brown, 506 F.3d at 1319. 

The surveillance videos show that Durham, after firing several 

shots and retreating to the relative safety of the bowling alley, returned to the front entrance and reengaged in a gun fight, ultimately firing more than 30 rounds. Even assuming his initial use 

of deadly force was justified by self-defense, this evidence is “susceptible of the view that the defendant could have extricated himself from the situation without [further] using deadly force” by 

staying inside the shelter of the bowling alley, as Jackson had. Dias, 

812 So. 2d at 491; see also Jimenez, 353 So. 3d at 1288. Thus, the 

district court reasonably determined that Durham’s reengagement 

and continued use of deadly force was not justified. 

Durham maintains that he reengaged to protect his friends 

who had taken cover outside. But the issue is not whether Durham 

personally “believed that [others] w[ere] in danger.” Reimel v. State, 

532 So. 2d 16, 18 (Fla. 5th DCA 1988). Rather, the self-defense inquiry “concerns a reasonably prudent person’s state of mind.” Id. 

So the court was not required to accept Durham’s testimony that 

it was necessary for him to reengage to protect his friends outside 

the front entrance. Plus, both the video evidence and Durham’s 

statements at sentencing indicate that Durham was the target, not 

his group as a whole. So by choosing to reengage in a gunfight at 

the front entrance, Durham may well have actually increased the 

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danger for the people outside, as well as for others who may have 

been in the parking lot but not involved in the shooting.

For these reasons, the district court offered a plausible view 

based on the evidence that Durham’s reengagement and use of 

deadly force after reaching the relative safety of the bowling alley 

was not justified by the doctrine of self-defense. While the evidence may support a contrary view, that is not enough to render 

the court’s finding clearly erroneous. See Anderson, 470 U.S. at 574. 

And Durham does not otherwise contend on appeal that the 

§ 2K2.1(b)(6)(B) enhancement was inappropriate even if his conduct lacked justification, or that his sentence is unreasonable. Accordingly, we affirm Durham’s sentence. 

AFFIRMED.

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