United States v. Olivier Alexandre

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 24, 2026
• Docket: 25-10155
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION

In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 25-10155 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus

OLIVIER RICARDY ALEXANDRE, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:24-cr-20354-DSL-1 ____________________

Before LUCK, LAGOA, and ED CARNES, Circuit Judges. PER CURIAM: Olivier Ricardy Alexandre pleaded guilty to one count of possessing ammunition as a convicted felon and one count of pos- sessing a firearm and ammunition as a convicted felon, in violation USCA11 Case: 25-10155 Document: 35-1 Date Filed: 02/24/2026 Page: 2 of 11

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of 18 U.S.C. § 922(g)(1). When calculating the guidelines range, the district court applied a sentence enhancement to account for the fact that, while Alexandre was unlawfully possessing ammunition and a firearm, he attempted to murder someone. The court considered recordings from video surveillance that showed Alexandre, who at the time was on probation for a felony, chasing B.V. into his home while firing eighteen shots at him. The court also considered a factual proffer in which Alexan- dre admitted that he wanted to kill B.V. to avenge the death of a friend who had been killed by B.V. years earlier. In the same prof- fer, Alexandre also admitted that the week after he shot at B.V., he used another loaded pistol to “confront” a tow truck driver who was attempting to repossess a vehicle. Weighing the 18 U.S.C. § 3553(a) factors, the district court varied upward from Alexandre’s guidelines range of 108 to 135 months imprisonment, sentencing him to 240 months. Alexandre challenges his sentence on several grounds, none of which suc- ceeds. I. Alexandre first contends that the district court erred in ap- plying to him the attempted first-degree murder guideline under U.S.S.G. § 2A2.1(a)(1) through § 2K2.1(c)(1)(A)’s cross-reference to § 2X1.1. He argues that the court did so without sufficient evidence or explicit findings about his intent to kill. According to Alexandre, USCA11 Case: 25-10155 Document: 35-1 Date Filed: 02/24/2026 Page: 3 of 11

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the court should have considered whether he acted with less cul- pable intent when he shot at B.V. eighteen times because he might have just meant to scare, threaten, or injure him. Calculating Alexandre’s base offense level for his § 922(g) felon-in-possession crimes started with U.S.S.G. § 2K2.1. See U.S.S.G. § 2K2.1 (2024). The district court found that Alexandre “used or possessed” the firearm or ammunition “in connection with the . . . attempted commission of another offense,” and that triggered § 2K2.1(c)(1)(A)’s cross-reference to the guideline for at- tempt crimes, § 2X1.1. See id. § 2K2.1(c)(1)(A). The court determined that the evidence presented at sen- tencing established that Alexandre had attempted to commit first degree murder, which “includes any willful, deliberate, malicious, and premeditated killing.” United States v. Cenephat, 115 F.4th 1359, 1368 (11th Cir. 2024) (quotation marks omitted). “Attempted mur- der occurs when a person (1) intends to kill someone and (2) com- pletes a substantial step towards that goal.” Id. (alteration adopted) (quotation marks omitted). Under § 2X1.1, the court determined that because the at- tempted murder guideline, § 2A2.1(a)(1), expressly covered Alex- andre’s conduct, it applied, making his base offense level 33. See id. §§ 2X1.1(c)(1) (providing that “[w]hen an attempt . . . is expressly covered by another offense guideline section, apply that guideline section”), 2A2.1(a)(1) (setting a base offense level of 33 “if the object of the offense would have constituted first degree murder”). USCA11 Case: 25-10155 Document: 35-1 Date Filed: 02/24/2026 Page: 4 of 11

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We review de novo the district court’s interpretation of the sentencing guidelines and its application of the guidelines to the facts, but we review its factual findings only for clear error. United States v. Barrington, 648 F.3d 1178, 1194–95 (11th Cir. 2011). A fac- tual finding is clearly erroneous when it is not supported by sub- stantial evidence or when we are “left with the definite and firm conviction that a mistake has been committed.” United States v. Robertson, 493 F.3d 1322, 1330 (11th Cir. 2007) (quotation marks omitted). “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” United States v. Izquierdo, 448 F.3d 1269, 1278 (11th Cir. 2006) (quo- tation marks omitted). The court made all the necessary findings to conclude that the attempted first-degree murder guideline applied, and the evi- dence clearly supports those findings. At the sentence hearing, the government introduced video recordings showing Alexandre chas- ing B.V. into his home and shooting at him eighteen times while B.V. dives to the floor and crawls away, miraculously avoiding be- ing shot. One of the videos shows B.V.’s mother running into the room and slamming the front door after Alexandre runs out of the house. And in Alexandre’s factual proffer, he admitted that “he saw [B.V.] at his place of employment and wanted to kill him” to avenge the death of his friend, whom B.V. had shot six years be- fore. Based on that evidence, the court found that “[t]his was cold- blooded attempted murder” with a total of eighteen shots fired at USCA11 Case: 25-10155 Document: 35-1 Date Filed: 02/24/2026 Page: 5 of 11

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B.V. outside and inside of his home. The court recognized that Al- exandre “basically made no bones about his motive.” He admitted he wanted to kill B.V. Not only that, but also Alexandre “went in the home where three other people were,” and he fired “a barrage” of gunshots, conduct indicating that he “didn’t care what bystand- ers were present.” Based on the undisputed evidence that the court considered, its findings are not erroneous, much less clearly erroneous. The court properly applied the cross-reference for attempted murder to set Alexandre’s base offense level at 33. 1 See U.S.S.G. §§ 2X1.1(c)(1), 2A2.1(a)(1).

1 Alexandre also takes issue with the court’s comment at his sentence hearing

that, in addition to attempted murder, Alexandre’s entry into B.V.’s house while shooting at him was an armed burglary. Alexandre did not object to that comment, and he argues for the first time on appeal that the district court should have made findings about all the elements of burglary. We review that unpreserved issue for plain error only, and Alexandre must show (1) an error (2) that is plain (3) that affects substantial rights (4) which seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). The district court didn’t rely on armed burglary to calculate Alexandre’s of- fense level. To the extent the court in its 18 U.S.C. § 3553(a) analysis consid- ered armed burglary to be uncharged relevant conduct, Alexandre has identi- fied no precedent indicating that the court was required to make findings as to each of the elements of burglary, and he has failed to show that any absence of those findings affected his substantial rights. The undisputed evidence es- tablished that Alexandre did in fact enter B.V.’s house while shooting at him. And that conduct was highly relevant to the district court’s sentencing deci- sions, regardless of how it was classified. Cf. United States v. Gyetvay, 149 F.4th 1213, 1240 (11th Cir. 2025) (“Because it is clear to us what evidence the district USCA11 Case: 25-10155 Document: 35-1 Date Filed: 02/24/2026 Page: 6 of 11

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II. Alexandre contends that his sentence is procedurally unrea- sonable because the district court based it on “speculative relevant conduct” that was not supported by reliable evidence. He also as- serts in passing that his sentence is substantively unreasonable be- cause it is procedurally unreasonable. At the sentence hearing, the government presented shell cas- ing evidence to establish that the firearm Alexandre used when he fired eighteen rounds at B.V. was the same firearm that some uni- dentified person had used to shoot B.V. five months before. Alex- andre asserts that his connection to the firearm cannot establish his connection to the earlier attempt to kill the same victim. We “review[] the reasonableness of a sentence under a def- erential abuse-of-discretion standard,” United States v. Dougherty, 754 F.3d 1353, 1361 (11th Cir. 2014), and we evaluate the substan- tive reasonableness of a sentence “in light of the totality of the cir- cumstances and the 18 U.S.C. § 3553(a) factors,” United States v. Fox, 926 F.3d 1275, 1278 (11th Cir. 2019). “A district court abuses its discretion when it (1) fails to afford consideration to relevant fac- tors 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,

court relied upon in calculating its sentence, the district court did not plainly err by failing to provide an explicit relevant-conduct explanation.”). USCA11 Case: 25-10155 Document: 35-1 Date Filed: 02/24/2026 Page: 7 of 11

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612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quotation marks omitted). It also abuses its discretion when it makes clearly erro- neous factual findings. Gyetvay, 149 F.4th at 1239. Apart from Alexandre’s objection to the attempted murder enhancement, which we have already concluded was properly ap- plied, see supra at 2–5, the parties agreed that 108 to 135 months was the correctly calculated guidelines range. Alexandre faced a 30- year statutory maximum. The government argued for an upward variance to a sen- tence of 300 months (25 years). It pointed out that Alexandre had “hunt[ed] down this victim” and attempted to “assassinate him” with a “barrage of gunfire” inside a home occupied by other family members who also could have been killed. The shooting happened just “a few weeks after” Alexandre had received a probation sen- tence “in Kentucky for armed drug trafficking.” And just a week after trying to murder B.V., Alexandre “pull[ed] a gun on a tow truck driver when he didn’t know the police were outside waiting to arrest him.” The government argued that an upward variance to a 25-year sentence was justified based on Alexandre’s “absolutely horrific conduct,” his criminal history, and “the need to protect the victims and deter others from attempting to murder people.” Defense counsel argued for a sentence within the guidelines, asserting that attempting to murder someone had already been taken into account in the guidelines calculation based on the appli- cation of § 2A2.1. Counsel also pointed out that Alexandre was facing additional penalties in state court. USCA11 Case: 25-10155 Document: 35-1 Date Filed: 02/24/2026 Page: 8 of 11

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In his allocution, Alexandre told the court that he was a col- lege graduate who had excelled on the track team. He had family and community support. He took responsibility for his actions and asked the court for leniency. In its analysis of the 18 U.S.C. § 3553(a) factors, the district court considered the fact that in October 2022, B.V. had been shot with the same firearm that Alexandre used in March 2023 when he fired eighteen rounds at B.V. The government’s shell casing evi- dence established that same gun was used in both crimes. The court found that, even if Alexandre didn’t pull the trigger in the earlier shooting, he had some connection to it through the firearm. The court reasoned that the same gun, the same victim, and two shootings just months apart amounted to something more than a mere coincidence. The court’s findings about that were not clearly erroneous. The court also considered Alexandre’s criminal history and the fact that he was on probation for a felony in another state when he engaged in the conduct that led to his two current § 922(g) con- victions. It factored in the nature and severity of the offenses, high- lighting the fact that Alexandre had disregarded the safety of by- standers when he shot a “barrage” of bullets at B.V. in his home. The court focused on “the cold-blooded attempted murder” which was soon followed by Alexandre’s use of another firearm to intim- idate a tow truck driver. The court didn’t overlook Alexandre’s history and characteristics, pointing out that he was a college track USCA11 Case: 25-10155 Document: 35-1 Date Filed: 02/24/2026 Page: 9 of 11

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star who “possessed gifts.” Instead of using those gifts, however, he had “wasted” them and had “led a life of crime.” The court considered the need to provide specific and gen- eral deterrence, to protect the public, to provide just punishment for the offense, and to promote respect for the law. It noted the statutory maximum sentence of 30 years and decided not to impose it because of Alexandre’s acceptance of responsibility and the fact that he was a young man. After its detailed consideration of the § 3553(a) factors and the guidelines range, the court varied upward to 240 months imprisonment, which it found was sufficient but not greater than necessary. We have recognized that “a district court has considerable discretion in deciding whether the § 3553(a) factors justify a vari- ance and the extent of one that is appropriate.” United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009) (quotation marks omit- ted). We give due deference to its decision. Id. In imposing a sen- tence of 240 months, the district court provided detailed justifica- tions for its upward variance. See id. It carefully considered the § 3353(a) factors. It did not abuse its discretion. III. Alexandre’s final contention is based on a remark that coun- sel for the government made during the sentence hearing. Alt- hough Alexandre didn’t object at the time, he now contends that the remark amounted to prosecutorial misconduct that was “cal- culated to inflame the sentencing judge.” He argues that he is en- titled to resentencing because of it. USCA11 Case: 25-10155 Document: 35-1 Date Filed: 02/24/2026 Page: 10 of 11

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At the sentence hearing, the government introduced into ev- idence a recording of a jail call from Alexandre’s time in state cus- tody after his detention hearing. In the call Alexandre, who was anticipating being released from jail, talked about how he was in the wrong frame of mind and wanted to say, “Look, look, they let a murderer out.” After discussing that call and Alexandre’s reference to him- self as a “murderer,” counsel for the government mentioned that Alexandre was a young man and the statutory maximum for his current convictions was 30 years. Given those numbers, counsel stated that the sentencing judge was “going to be the judge that lets this murderer out of prison, and it’s really just a question of when.” The government then asked for a sentence of 25 years. When it was defense counsel’s turn to argue about what sen- tence would be appropriate, he emphasized that Alexandre “didn’t murder anybody.” Instead, “this was an attempt.” The court gave no indication that it was sentencing Alexan- dre for having committed a murder. Instead, as part of its analysis of the § 3553(a) factors, the court considered the jail call. It found that Alexandre’s statement about “let[ting] a murderer out” was “very relevant.” But the court made it clear that for the purpose of the § 3553(a) factors and the upward variance, it was “focus[ing] upon the cold-blooded attempted murder” and just “shortly there- after, the attempted intimidation of a tow truck driver after retriev- ing the second firearm.” USCA11 Case: 25-10155 Document: 35-1 Date Filed: 02/24/2026 Page: 11 of 11

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“For a prosecutor’s remarks to constitute prosecutorial mis- conduct, they must (1) be improper and (2) prejudicially affect the defendant’s substantial rights.” United States v. Oscar, 877 F.3d 1270, 1283 (11th Cir. 2017). And when a defendant fails to object to the alleged misconduct, as Alexandre did here, we review only for plain error. United States v. House, 684 F.3d 1173, 1197 (11th Cir. 2012). There was no prosecutorial misconduct here. Alexandre was the one who, in the jail call, referred to himself as a “mur- derer.” Counsel for the government merely referred to the jail call, which was admitted into evidence without objection, and repeated what Alexandre had said about himself. In its detailed analysis of the § 3553(a) factors, the court considered the jail call itself, not an- yone’s comment about it. Alexandre has shown no error, much less plain error. AFFIRMED.