[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10853 ELEVENTH CIRCUIT
Non-Argument Calendar DECEMBER 1, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:09-cr-00180-SLB-RRA-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
WALTER LEE ECHOLS,
lllllllllllllllllllll Defendant-Appellant
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(December 1, 2010)
Before TJOFLAT, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Walter Lee Echols pled guilty to possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1), and the district court sentenced him to
a prison term of 72 months. He appeals his sentence, presenting two arguments
for reversal. First, in determining his offense level under the Sentencing
Guidelines, the district court erred in enhancing the base offense under U.S.S.G.
§ 2K2.1(b)(4)(A)—which calls for a two-level increase in the base offense level if
the subject firearm was stolen—because the Government failed to establish that
the firearm was stolen. Second, but for the enhancement, the district court would
have imposed a lesser sentence.
Whether a firearm was “stolen” for purposes of § 2K2.1(b)(4)(A) is a
question of fact that we review for clear error only. See United States v. Walker,
490 F.3d 1282, 1299 (11th Cir. 2007). However, “it is not necessary to decide
guidelines issues or remand cases for new sentence proceedings where the
guidelines error, if any, did not affect the sentence.” United States v. Keene, 470
F.3d 1347, 1349 (11th Cir. 2006). Instead, we affirm a district court’s sentence if
the record includes evidence that the district court would have imposed the same
sentence even if it had not applied the enhancement.
In this case, we do not decide whether the district court clearly erred in
applying an enhancement under U.S.S.G. § 2K2.1(b)(4)(A) because any error
would be harmless. At the sentencing hearing, the district court stated that it
would have imposed the same sentence even if it had found the stolen-firearm
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enhancement to be inapplicable. In that circumstance, Echols's resulting
sentencing range under the Guidelines would have been 51-63 months'
imprisonment, making his sentence of 72 months a 9-month upward variance from
the high end of that range.
As the district court correctly noted, Echols has an extensive criminal
history and has demonstrated a high likelihood of recidivism. An upward variance
provided was needed to promote respect for the law, to provide general deterrence,
and to protect the public from Echols’s criminal behavior. See 18 U.S.C. §
3553(a)(1), (2), (3). Therefore, the imposed sentence was sufficiently justified,
and any error in imposing the stolen-firearm enhancement was harmless. See
United States v. Irey, 612 F.3d 1160, 1187 (11th Cir. 2010) (en banc); Keene, 470
F.3d at 1349.
AFFIRMED.
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