United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3198
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Anton Lamont Burnes, *
* [UNPUBLISHED]
Appellant. *
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Submitted: June 13, 2011
Filed: July 15, 2011
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Before LOKEN, BEAM, and GRUENDER, Circuit Judges.
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PER CURIAM.
The district court1 sentenced Burnes to 110 months' imprisonment following
Burnes's guilty plea to the charge of being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Burnes appeals and challenges the
substantive reasonableness of this sentence. We affirm.
1
The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
I. BACKGROUND
On July 28, 2008, officers arrested Burnes based on a suspicion that he
committed murder. At the time of his arrest, he had a stolen 9-millimeter pistol
hidden in his sock. Burnes's past is wrought with unlawful behavior, beginning as a
juvenile, that resulted in imprisonment and probation, among other punishments.
Burnes attempted to justify the instant offense by explaining to the court the
events that led to his carrying the gun that night. Burnes explained that it all started
on May 31, 2008, when one person was killed and three others were wounded at a bar
in St. Paul, Minnesota. Burnes and his best friend Desmond Clark were accused by
friends of the victims of being involved in the shooting. Burnes heard rumors that
people wanted him dead in retaliation for the victim's death. Burnes and Clark
received overt threats and Clark was later shot and killed on June 26, 2008. Fearing
for his life, Burnes went into hiding. The night of his arrest, according to Burnes, was
one of the rare times he ventured out and he only did so upon the urging of a friend
who ended up being a police informant cooperating in the murder investigation.
Burnes pleaded guilty to the felon-in-possession charge but claimed that he was
justified in carrying the firearm due to the life-threatening circumstances. Using this
reasoning in support, Burnes sought departures under United States Sentencing
Guidelines § 5K2.11 (lesser harms policy statement) and § 5K2.12 (coercion and
duress policy statement), and additionally asked for a below-range sentence under 18
U.S.C. § 3553(a). Burnes's calculated Guidelines sentence was 120 months, the
statutory maximum. The district court varied downward and imposed a 110-month
sentence followed by a three-year term of supervised release. In doing so, the court
rejected Burnes's justification argument and noted that it varied primarily due to
Burnes's lengthy stay in Sherburne County jail, the court's belief that the four-level
firearm enhancement is written and applied broadly, and Burnes's own history and
characteristics.
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II. DISCUSSION
On appeal, Burnes challenges the substantive reasonableness of his sentence
and argues that his 110-month sentence is far greater than necessary under § 3553(a)
to accomplish the goals of sentencing. He further challenges the court's refusal to
grant the requested departures as well as a firearm enhancement applied in the
Guidelines calculation, which are procedural challenges. We first "ensure that the
district court committed no significant procedural error," including "failing to
calculate (or improperly calculating) the Guidelines range." Gall v. United States, 552
U.S. 38, 51 (2007). To the extent an asserted procedural error involves interpretation
of the Guidelines, we review the district court's construction and application of the
sentencing Guidelines de novo. United States v. Cordy, 560 F.3d 808, 817 (8th Cir.),
cert. denied, 130 S. Ct. 271 (2009). Next, we consider the substantive reasonableness
of the sentence imposed under an abuse-of-discretion standard. United States v.
Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). "If the sentence is within the
Guidelines range, the appellate court may, but is not required to, apply a presumption
of reasonableness." Gall, 552 U.S. at 51. In the end, even if the appellate court might
reasonably conclude that a different sentence is appropriate, it is insufficient to justify
reversal of the district court. Id.
Burnes's argument that the district court should have granted the departures
Burnes sought is nearly unreviewable on appeal. "[W]e will generally not review a
decision not to grant a downward departure unless the district court had an
unconstitutional motive or erroneously thought that it was without authority to grant
the departure." United States v. Heath, 624 F.3d 884, 888 (8th Cir. 2010) (quotation
omitted), cert. denied, 131 S. Ct. 2164 (2011). Burnes makes no claim that the district
court had an unconstitutional motive or that it believed it was without authority to
grant Burnes's requests.
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Burnes's challenge to the firearm enhancement is also foreclosed. Here, Burnes
challenges the court's application of the four-level enhancement for use of any firearm
in connection with another felony offense, claiming that even though he had used a
firearm in connection with two prior second-degree assault convictions, he did not use
the exact same firearm in those prior crimes and so the enhancement should not have
applied. Our circuit precedent is directly contrary. United States v. Easley, 557 F.3d
591, 593 (8th Cir. 2009) (holding that a § 2K2.1(b)(6) enhancement does not require
the firearm used in another felony offense to be the same firearm as that serving the
basis of the felon-in-possession offense).
Finally, even though Burnes's briefing adeptly describes the wide latitude
afforded sentencing courts today, it falls short of recognizing the great limitations on
appellate courts reviewing the sentences imposed. There was no abuse of discretion
here. Indeed, as the government repeatedly points out, Burnes actually received the
very sentence he asked for–a sentence less than 120 months. See United States v.
Mickelson, 433 F.3d 1050, 1056 (8th Cir. 2006) (holding that because the defendant
had requested a within-Guidelines sentence, he essentially acknowledged that any
sentence within the range would have been reasonable, foreclosing any argument on
appeal to the contrary). Even addressing Burnes's argument head-on, that the district
court did not account for Burnes's "justification" in carrying this gun to vary
downward was certainly not an abuse of discretion.
III. CONCLUSION
For the reasons stated herein, we affirm.
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