United States v. Steven Cenephat
Citation115 F.4th 1359
Date Filed2024-09-23
Docket22-13741
Cited14 times
StatusPublished
Full Opinion (html_with_citations)
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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13741
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
PlaintiďŹ-Appellee,
versus
STEVEN MICHAEL CENEPHAT,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cr-20230-CMA-1
____________________
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2 Opinion of the Court 22-13741
Before JILL PRYOR, TJOFLAT, and ANDERSON, Circuit Judges.
PER CURIAM:
Steven Cenephat appeals his conviction and sentence for
knowingly possessing a firearm as a felon in violation of 18 U.S.C.
§ 922(g)(1). He argues that the District Court erred by (1) admit-
ting other bad acts evidence relating to a drive-by shooting and his
prior convictions for illegally possessing firearms; (2) calculating his
offense levels under the guideline for attempted murder; and (3)
applying a sentencing enhancement for reckless flight from a law
enforcement officer. We affirm.
I.
In February 2020, Miami police officers responded to the
sound of gunshots while on patrol. As the officers approached the
source of the noise, they saw a silver Pontiac Grand Prix speeding
in the opposite direction. A high-speed chase ensued. The Grand
Prix fled erratically, causing accidents, driving through red lights
and stop signs, and stopping only when the car finally crashed be-
tween a fence and a light post. Police did not see anyone enter or
exit the car. They found Cenephat in the back, with another per-
son in the driverâs seat. There were firearms and ammunition on
the carâs rear floorboard. The car belonged to Cenephatâs mother.
Other officers responded to the scene of the gunshots, a
nearby apartment complex. They found an injured man who had
been shot in the head, requiring urgent medical care. Investigators
recovered spent cartridge casings that matched the firearms located
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22-13741 Opinion of the Court 3
in the Grand Prix. And they obtained video surveillance footage
from the apartment complex that seemed to show gunshots being
fired from the back of a four-door sedan matching the appearance
of the Grand Prix. Later testing revealed gunshot residue on
Cenephatâs left hand.
A grand jury indicted Cenephat for possession of a firearm
by a felon in violation of 18 U.S.C. § 922(g)(1). Before trial, the
Government filed notice of its intent to offer prior bad acts evi-
dence under Federal Rule of Evidence 404(b). It sought to intro-
duce evidence of (1) Cenephatâs 2011 and 2014 felon-in-possession
convictions to show that his alleged possession âwas knowing and
not the result of a mistake or accidentâ and (2) Cenephatâs partici-
pation in a drive-by shooting shortly before he was arrested, which
the Government suggested was ânecessary to complete the story
of the crime.â
Cenephat moved to exclude both forms of evidence under
Federal Rules of Evidence 404(b) and 403. He argued that the prior
convictions were not probative on account of their temporal re-
moteness and were overly prejudicial in that they âpaint[ed] Mr.
Cenephat as a violent and armed individual.â He also argued that
the Government should have agreed to merely stipulate that
Cenephat had a prior felony conviction. And he stated that the
drive-by evidence was extrinsic to his felon-in-possession charge
and would be extremely inflammatory because of its violent na-
ture. He offered to stipulate that the officers who arrested him
were responding to âshots fired.â
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4 Opinion of the Court 22-13741
The District Court addressed these arguments at a pre-trial
hearing. The Court ruled that the evidence about the drive-by
shooting would be admissible because it was inextricably inter-
twined with the charged offense. The Court also ruled that
Cenephatâs prior convictions would be admissible because he
placed his intent at issue by pleading not guilty, the fact that they
were convictions was sufficient proof that he committed the acts,
and the risk of prejudice did not outweigh their probative value.
At trial, the Government highlighted Cenephatâs involve-
ment in the drive-by, stating that âthe evidence in this case will
show that the Defendant committed a drive-by shooting, but that
is not what you are here to decide today.â The Government also
referred to Cenephatâs prior felon-in-possession convictions, stat-
ing that they did ânot mean that itâs more likely that he committed
the offense charged todayâ but that the jury was âallowed to con-
sider those prior firearm convictions when deciding whether the
Defendant had the intention to possessâ the charged weapons. At
the close of trial, the District Court provided a limiting instruction
to the jury regarding the prior acts evidence. The jury found
Cenephat guilty.
At sentencing, the District Court noted that the Sentencing
Guidelines ârecommend[ed] a sentence of 324 to 405 monthsâ im-
prisonment; however, the statutory maximum is 120 months.â
The Court denied Cenephatâs objection to a reckless flight en-
hancement, stating that Cenephat aided or abetted the reckless
flight because he was âin the car with the driverâ and surrounded
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22-13741 Opinion of the Court 5
by guns, ammunition, and spent bullet casings. The Court also de-
nied Cenephatâs objection to having his offense levels calculated
under the attempted murder guideline, stating that Cenephat aided
the drive-by shooting, allowed his motherâs car to be used, was pre-
sent at the shooting, and knowingly possessed guns and ammuni-
tion used in the shooting. After weighing the 18 U.S.C. § 3553 fac-
tors, the Court sentenced Cenephat to the statutory maximum 120
months in prison. At the Governmentâs request, the Court added
that, âin the event that [Cenephatâs] objections should have been
sustained, the guideline range would still have exceeded the statu-
tory maximum and the sentence that I have imposed . . . is suffi-
cient and not greater than necessary.â
II.
Cenephat appeals the District Courtâs decisions to admit ev-
idence regarding prior acts: (1) the drive-by shooting and (2) his
earlier felon-in-possession convictions. We review a district courtâs
evidentiary rulings for an abuse of discretion. United States v. Nova-
ton, 271 F.3d 968, 1005 (11th Cir. 2001). âA district court abuses its
discretion if it applies an incorrect legal standard, follows improper
procedures in making its determination, or makes clearly errone-
ous factual findings.â United States v. Giron, 15 F.4th 1343, 1345
(11th Cir. 2021).
We will not reverse based on harmless error. United States
v. Barton, 909 F.3d 1323, 1337 (11th Cir. 2018). Thus, reversal is not
warranted âif the purported error had no substantial influence on
the outcome and sufficient evidence uninfected by error supports
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6 Opinion of the Court 22-13741
the verdict.â United States v. Fortenberry, 971 F.2d 717, 722 (11th Cir.
1992). The government bears the burden of establishing harmless-
ness. See United States v. Mathenia, 409 F.3d 1289, 1292 (11th Cir.
2005).
A
Evidence of uncharged or past crimes âis not admissible to
prove a personâs character in order to show that on a particular oc-
casion the person acted in accordance with the character.â Fed. R.
Evid. 404(b)(1). However, â[t]his evidence may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack
of accident.â Id. 404(b)(2). The evidence must satisfy a three-part
test: â(1) it must be relevant to an issue other than defendantâs char-
acter; (2) there must be sufficient proof to enable a jury to find by
a preponderance of the evidence that the defendant committed the
act(s) in question; and (3) . . . the evidence must satisfy Rule 403.â
United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007). The
government must also offer prior notice of its intent to present the
evidence, including an explanation of its permitted purpose. Fed.
R. Evid. 404(b)(3).
But Rule 404 does not apply to evidence that is intrinsic to
the charged crime. United States v. Dixon, 901 F.3d 1322, 1344â45
(11th Cir. 2018). Evidence is intrinsic if it âarose out of the same
transaction or series of transactions as the charged offense, is nec-
essary to complete the story of the crime, or is inextricably
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22-13741 Opinion of the Court 7
intertwined with the evidence regarding the charged offense.â Id.
(quotations omitted).
Here, the District Court held that Rule 404 did not apply to
the drive-by evidence because it was âinextricably intertwinedâ
with the charged offense. In other words, details of the drive-by
could be presented as part of the prosecutionâs story of how
Cenephat unlawfully possessed firearms. Cenephat does not argue
that Rule 404 applies.
Rather, Cenephat objects on Rule 403 grounds. Rule 403
permits district courts to âexclude relevant evidence if its probative
value is substantially outweighed by a danger of . . . unfair preju-
dice.â Fed. R. Evid. 403. By its terms, the rule creates a âstrong
presumption in favor of admissibility.â United States v. Church, 955
F.2d 688, 703 (11th Cir. 1992). âThe term âunfair prejudice,â as to a
criminal defendant, speaks to the capacity of some concededly rel-
evant evidence to lure the factfinder into declaring guilt on a
ground different from proof specific to the offense charged.â Old
Chief v. United States, 519 U.S. 172, 180 (1997). That different
ground is âcommonly, though not necessarily, an emotional one.â
Id. But Rule 403 imposes âno requirement that the government
choose the least prejudicial method of proving its case.â United
States v. Dixon, 698 F.2d 445, 446 (11th Cir. 1983).
Here, the District Court did not err in admitting evidence
that Cenephat committed a drive-by shooting shortly before his ar-
rest. Viewed in the light most favorable to admission, this evidence
was not substantially more prejudicial than probative. The
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8 Opinion of the Court 22-13741
Government had to prove that Cenephat possessed firearms, and
the evidence tended to show that: (1) a drive-by shooting occurred
with gunfire coming from the back driverâs side window of a car;
(2) Cenephat was arrested sitting in the back driverâs side seat of
the car; (3) there was only one other person in the car when
Cenephat was arrested, the driver; (4) no one exited the car before
or after the police stopped it; (5) cartridge casings found at the
scene of the shooting and in the car matched each other and the
firearms that were in the car; and (6) Cenephat had gunshot residue
on his left hand. All of these points, if proven, would help to per-
suade the jury that Cenephat knowingly possessed the firearms.
True, evidence of an uncharged drive-by shooting has prej-
udicial potential. But we have routinely permitted intrinsic evi-
dence of similarly violent acts in other prosecutions for illegal fire-
arm possession. See, e.g., Fortenberry, 971 F.2d at 721 (allowing evi-
dence of an uncharged double murder to establish the defendantâs
possession of a firearm). And the Government here limited the ev-
idenceâs prejudicial impact by omitting any mention of the injured
victim from its case to the jury.
Nevertheless, Cenephat argues that the Court should have
merely accepted his offer to stipulate that police were responding
to âshots firedâ when they encountered him. But that stipulation
is not nearly as probative as the evidence he seeks to exclude. For
all the reasons described above, details regarding the drive-by
shooting have a much greater tendency to prove that Cenephat
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22-13741 Opinion of the Court 9
possessed firearms as alleged. We conclude that the District Court
did not abuse its discretion by admitting the drive-by evidence.
B
Cenephat also objects to the Governmentâs use of his prior
felon-in-possession convictions to prove intent under Rule 404(b).
This Court has held that â[a] defendant who enters a not guilty plea
makes intent a material issue which . . . [the government] may
prove by qualifying Rule 404(b) evidence.â United States v. Zapata,
139 F.3d 1355, 1358 (11th Cir. 1998). Alternatively, defendants can
remove intent as an issue and prevent the introduction of Rule
404(b) evidence by stipulating that they had the required intent.
United States v. Costa, 947 F.2d 919, 925 (11th Cir. 1991).
â[W]here the state of mind required for the charged and ex-
trinsic offenses is the same, the first prong of the Rule 404(b) test is
satisfied.â Edouard, 485 F.3d at 1345. Thus, we have permitted ev-
idence of prior felon-in-possession offenses to be used to prove later
charges, reasoning that there is a âlogical connection between a
convicted felonâs knowing possession of a firearm at one time and
his knowledge that a firearm is present at a subsequent time.â
United States v. Jernigan, 341 F.3d 1273, 1281â82 (11th Cir. 2003), ab-
rogated in part on other grounds by Rehaif v. United States, 588 U.S. 225
(2019); see also United States v. Gomez, 927 F.2d 1530, 1534 (11th Cir.
1991) (reasoning that prior firearm convictions were admissible to
show that the defendant âwas aware of the dangers of and law re-
lating to concealed weapons and rebut [his] claim that the gun was
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10 Opinion of the Court 22-13741
for an innocent purpose and its presence was mere accident or co-
incidenceâ).
Cenephat argues that our precedent has been abrogated by
more recent changes to Rule 404. The rule was amended in 2020
to impose additional notice requirements in criminal prosecutions.
Fed. R. Evid. 404 advisory committeeâs note to 2020 amendment.
Before the amendment, prosecutors needed to provide notice only
of the âgeneral natureâ of the evidence they sought to introduce.
Id. Now, Rule 404(b) requires that prosecutors articulate both a
non-propensity purpose and the reasoning that supports their pur-
pose. Fed. R. Evid. 404(b)(3).
Here, the Government provided the required notice, but
Cenephat argues that the ruleâs text also prompts a change in how
our courts analyze this kind of evidence. But there is nothing in
either the ruleâs text or the advisory committee notes to suggest
that the amendment did anything more than require better notice
to courts and criminal defendants. At any rate, the risk of prejudice
is more properly assessed under the framework of Rule 403.
On that point, Cenephat argues that his prior convictions
lack probative value because of their age. To determine the proba-
tive value of prior bad acts, we have considered âwhether it ap-
peared at the commencement of trial that the defendant would
contest the issue of intent, the overall similarity of the charged and
extrinsic offenses, and the temporal proximity between the
charged and extrinsic offenses.â Edouard, 485 F.3d at 1345. But
âdecisions as to impermissible remoteness are so fact-specific that
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a generally applicable litmus test would be of dubious value.â
United States v. Pollock, 926 F.2d 1044, 1048 (11th Cir. 1991). Thus,
we have held that 15-year-old convictions were not too remote but
also stated that the remoteness of 4-year-old convictions âdepleted
this evidence of any force of probity whatsoever.â United States v.
Lampley, 68 F.3d 1296, 1300 (11th Cir. 1995); United States v. Do-
thard, 666 F.2d 498, 504 (11th Cir. 1982).
Cenephatâs prior convictions date back to 2011 and 2014,
roughly nine and seven years before the instant offense. Our cases
make clear that neither age is inherently disqualifying. And we see
no reason to conclude that the convictions were too remote under
the circumstances here. In fact, Cenephat committed the instant
offense less than a year after he completed his sentence for the 2014
conviction.
Cenephat also argues that the prior convictions are too dis-
similar to the instant offense to have significant probative value.
He says that the earlier cases involved different guns or ammuni-
tion and that neither involved any accompanying violent conduct.
But these distinctions are superficial. The offenses share much
more in common: each offense involved the unlawful possession
of weapons that Cenephat knew he should not have.
Somewhat more compelling is Cenephatâs argument regard-
ing the evidenceâs prejudicial potential. He reasons that the jury
might have been tempted to convict him just because he was
caught twice before. This risk of prejudice is frequently a concern
in prosecutions using extrinsic evidence. See United States v. Nerey,
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12 Opinion of the Court 22-13741
877 F.3d 956, 974 (11th Cir. 2017) (noting that this evidence ârisks
a juryâs convicting the defendant for the extrinsic offense or con-
duct rather than the charged oneâ). Nevertheless, given the high
probative value of this evidence, decisions regarding its admissibil-
ity tend to fall soundly within the district courtsâ discretion. See
United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005). And
the Court here provided a limiting instruction against any propen-
sity use of the prior acts. We cannot say that the District Court
abused its discretion in admitting the prior convictions below.
III.
On appeal from sentencing, Cenephat objects to the District
Courtâs application of the guideline for attempted murder. We re-
view a district courtâs fact findings for clear error and its interpre-
tation of the Sentencing Guidelines de novo. United States v. Massey,
443 F.3d 814, 818(11th Cir. 2006); United States v. Revel,971 F.2d 656, 660
(11th Cir. 1992). To find clear error, we âmust be left with
a definite and firm conviction that a mistake has been committed.â
United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004)
(quotation omitted).
A district court may rely on any statements in the presen-
tence investigation report (âPSIâ) that the defendant did not object
to âwith specificity and clarity.â United States v. Bennett, 472 F.3d
825, 832â33 (11th Cir. 2006). However, â[w]here a defendant ob-
jects to the factual basis of his sentence, the government has the
burden of establishing the disputed fact.â Id. at 832. In district
court, the government must establish a sentencing enhancement
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22-13741 Opinion of the Court 13
by a preponderance of reliable evidence. United States v. Askew, 193
F.3d 1181, 1183 (11th Cir. 1999).
Typically, the base offense level for a defendant convicted of
unlawful possession of a firearm is calculated under § 2K2.1.
U.S.S.G. § 2K2.1. But a cross-reference to § 2X1.1 applies if the de-
fendant used or possessed the firearm in connection with another
offense. Id. § 2K2.1(c)(1)(A). That provision itself cross-references
other guidelines that cover more specific attempt, solicitation, or
conspiracy offenses. Id. § 2X1.1(c)(1).
Attempted murder is covered by § 2A2.1. Id. § 2A2.1. The
base offense level thereunder is 33 if the completed offense would
have been first-degree murder. Id. § 2A2.1(a)(1)â(2). And it adds
two levels if the victim suffered a serious bodily injury. Id.
§ 2A2.1(b)(1)(B). First-degree murder includes any âwillful, delib-
erate, malicious, and premeditated killing.â United States v. Mock,
523 F.3d 1299, 1303(11th Cir. 2008) (quoting18 U.S.C. § 1111
(a)).
Attempted murder occurs when a person (1) intends to kill some-
one and (2) âcomplete[s] a substantial step towards that goal.â Al-
varado-Linares v. United States, 44 F.4th 1334, 1346 (11th Cir. 2022).
Here, the trial evidence and uncontested PSI statements
tended to show that Cenephat was an active participant in an ear-
lier drive-by shooting that resulted in serious bodily injury.
Cenephat was found with firearms and ammunition in the backseat
of his motherâs Grand Prix directly after it fled the scene of the
shooting. The firearms were loaded, and one had been modified
for faster reloading. Forensics matched the bullets found at the
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14 Opinion of the Court 22-13741
scene of the drive-by with the casings and firearms found in the car.
Cenephatâs hand tested positive for gunshot residue.
Based on this evidence, the District Court could find that
Cenephat intended to commit murder and attempted to do so.
Therefore, the Court did not clearly err in finding that Cenephat
possessed firearms in connection with an attempted murder.
IV.
Cenephat also objects to the District Courtâs application of
a sentencing enhancement for reckless endangerment during
flight. â[W]hen a defendant fails to raise an argument before the
district court, we review only for plain error.â United States v. John-
son, 694 F.3d 1192, 1195 (11th Cir. 2012). Plain error occurs where
there is: â(1) an error (2) that is plain and (3) that has affected the
defendantâs substantial rights; and . . . (4) the error seriously af-
fect[s] the fairness, integrity or public reputation of judicial pro-
ceedings.â United States v. Madden, 733 F.3d 1314, 1320 (11th Cir.
2013) (quotation omitted). For an error to be plain, the issue must
be specifically resolved by the operative text or by precedent from
this Court or the Supreme Court. United States v. Lejarde-Rada, 319
F.3d 1288, 1291 (11th Cir. 2003).
The Sentencing Guidelines impose a two-level sentencing
enhancement â[i]f the defendant recklessly created a substantial
risk of death or serious bodily injury to another person in the
course of fleeing from a law enforcement officer.â U.S.S.G.
§ 3C1.2. The commentary to the reckless flight enhancement pro-
vides that, â[u]nder this section, the defendant is accountable for
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22-13741 Opinion of the Court 15
the defendantâs own conduct and for conduct that the defendant
aided or abetted, counseled, commanded, induced, procured, or
willfully caused.â U.S.S.G. § 3C1.2 comment. (n.5).
In a line of cases interpreting this language, we have held
that âa defendant cannot be held responsible for anotherâs conduct
under § 3C1.2 without some form of direct or active participation.â
United States v. Dougherty, 754 F.3d 1353, 1360 (11th Cir. 2014) (cit-
ing United States v. Cook, 181 F.3d 1232, 1235 (11th Cir. 1999)). In
other words, mere foreseeability is not enough. Id. And the district
court must make âa specific finding that the defendant actively
caused or procured the reckless behavior at issue.â Id. (quotation
omitted).
We review for plain error Cenephatâs arguments raised for
the first time on appeal. He argues that a recent decision by this
Court rendered the guidelines commentary irrelevant when a
guideline is unambiguous on its face. See United States v. Dupree, 57
F.4th 1269 (11th Cir. 2023) (en banc). He also argues that the Dis-
trict Court failed to make a sufficient finding that he actively par-
ticipated in the reckless driving.
In United States v. Dupree, we held that guidelines commen-
tary may only be used to construe a guideline if, having exhausted
all the traditional rules of statutory interpretation, the guidelineâs
main text is ambiguous. Id. at 1273â77. Cenephat notes that
§ 3C1.2 itself addresses only those risks that âthe defendant reck-
lessly created . . . in the course of fleeing from a law enforcement
officer.â See U.S.S.G. § 3C1.2 (emphasis added). He argues that the
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16 Opinion of the Court 22-13741
guidelines commentary cannot modify the guidelineâs plain mean-
ing to impose an enhancement for merely aiding and abetting an-
otherâs conduct.
But Cenephat forgets § 1B1.3, which otherwise directs that
Chapter Three enhancements, like that of § 3C1.2, âshall be deter-
minedâ based on âall acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully caused by
the defendant.â Id. § 1B1.3(a)(1). In fact, âin the case of a jointly
undertaken criminal activity,â § 1B1.3 applies even more broadly
to some conduct by others that is âreasonably foreseeable in connec-
tion with that criminal activity.â Id. § 1B1.3(a)(1)(B) (emphasis
added).
Indeed, our pre-Dupree holdings acknowledged this âcon-
flictâ between § 1B1.3 and the commentary to § 3C1.2. See Cook,
181 F.3d at 1234. But we reasoned that the former provided only a
general rule because it applies â[u]nless otherwise specified,â so the
latterâs more specific language should prevail. Id. at 1235â36.
It is unclear whether our previous interpretations of § 3C1.2
survived Dupree. However, as the Government notes, our resolu-
tion of this issue would not affect the outcome here. Without the
two-level enhancement, Cenephatâs total offense level and crimi-
nal history would have yielded a guidelines range of 262 to 327
months. 1 But the statutory maximum sentence that Cenephat
1 Cenephatâs base offense level would have been 33 under the attempted mur-
der guideline. U.S.S.G. § 2A2.1(a)(1). A two-level increase would apply be-
cause the offense resulted in serious bodily injury. Id. § 2A2.1(b)(1)(B).
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22-13741 Opinion of the Court 17
faced was 120 months, so his actual guideline sentence would re-
main the same. See U.S.S.G. § 5G1.1(a).
At sentencing, the Government requested that the District
Court make a Keene finding. See United States v. Keene, 470 F.3d 1347
(11th Cir. 2006). Under Keene, we will not vacate a defendantâs sen-
tence if the district court states that its decision as to a guidelines
issue would not have affected the sentence imposed, provided that
sentence is reasonable. Id. at 1348â49. The Government here in-
voked Keene in asking the District Court to state that it âstill would
have applied a 120-month sentenceâ even if Cenephat had pre-
vailed on his sentencing objections. The District Court itself noted
that, âin the event that the objections should have been sustained,
the guideline range would still have exceeded the statutory maxi-
mum,â and it stated that the 120-month sentence was âsufficient
and not greater than necessary.â 2
Finally, the District Courtâs sentence was not âoutside the
range of reasonable sentences dictated by the facts of the case.â See
Combined with Cenephatâs criminal history category of V, the guidelines yield
a sentencing range of 262 to 327 months.
2 At sentencing, the District Court and the parties apparently assumed that
Cenephatâs guidelines range would remain above the statutory maximum
even if he succeeded on both his sentencing objections. That assumption may
have resulted from a typographical error in the PSI. But that error would only
have affected the outcome if Cenephat succeeded in challenging the applica-
bility of the attempted murder guidelines. Because we hold that those guide-
lines are applicable, his corrected guidelines range would remain well above
the statutory maximum.
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18 Opinion of the Court 22-13741
United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (quotation
omitted). The Court appropriately weighed the 18 U.S.C. § 3553(a)
factors and found Cenephatâs conduct to be âabhorrent and hei-
nous.â Therefore, even if the District Court erred in applying the
reckless endangerment enhancement, the error was harmless.
AFFIRMED.