United States Court of Appeals
Fifth Circuit
F I L E D
April 27, 2004
In the
Charles R. Fulbruge III
United States Court of Appeals Clerk
for the Fifth Circuit
_______________
m 03-20059
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOSEPH LELAND EVERIST,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m H-00-CR-689-ALL
_________________________
Before GARWOOD, HIGGINBOTHAM, and or foreign commerce, or possess in or affect-
SMITH, Circuit Judges. ing commerce, any firearm or ammunition; or
to receive any firearm or ammunition; or to re-
JERRY E. SMITH, Circuit Judge: ceive any firearm or ammunition which has
been shipped or transported in interstate or
Joseph Everist was charged with being a foreign commerce.”
felon in possession of a firearm in violation of
18 U.S.C. §§ 922(g)(1) and 924(e)(1). Sec- Everist was a felon, having been convicted
tion 922(g)(1) makes it unlawful, inter alia, and sentenced to more than a year’s impris-
for a person who has been convicted of a onment for bank robberies. He possessed five
crime punishable by more than one year’s im- firearms, several of which moved in interstate
prisonment to “ship or transport in interstate commerce in satisfaction of § 922(g)(1)’s jur-
isdictional requirement. He was convicted and zens. See id. (noting that “it is clear that fel-
sentenced to 180 months in prison. ons, infants and those of unsound mind may be
prohibited from possessing firearms”). Ac-
Everist requested that this sentence be cordingly, § 922(g)(1) represents a limited and
served wholly concurrently with a standing narrowly tailored exception to the freedom to
300-month sentence for the bank robberies. possess firearms, reasonable in its purposes
The district court allowed 60 months of the and consistent with the right to bear arms pro-
sentence to be served concurrently, the re- tected under the Second Amendment.1 Ever-
maining 120 consecutively. Everist challenges ist’s constitutional challenge to § 922(g)(1)
his conviction under § 992(g)(1) and the fails.2
district court’s manner of applying his partially
concurrent sentence. Everist asserts other constitutional theories
respecting § 922(g)(1). He argues that the
I. provision was enacted in excess of Congress’s
Everist makes a facial constitutional chal- power under the Commerce Clause. That the-
lenge to § 922(g)(1), arguing that the felon ory is foreclosed under Fifth Circuit precedent
firearm possession statute deprives him of the but is preserved for further review.3 Everist’s
constitutional right to keep and bear arms. In other theories, resting variously on the Tenth
United States v. Emerson, 270 F.3d 203, 260 Amendment and Equal Protection Clauses, are
(5th Cir. 2001), we held that the Second meritless.
Amendment “protects the rights of individuals,
including those not then actually a member of
any militia or engaged in active military service
or training, to privately possess and bear their 1
We need not decide whether the Second
own firearms . . . .”
Amendment’s boundaries are properly defined
through strict scrutiny analysis, though it remains
The Second Amendment right is subject to certain that the federal government may not re-
“limited narrowly tailored specific exceptions strain the freedom to bear arms based on mere
or restrictions for particular cases that are rea- whimsy or convenience. See Emerson, 270 F.3d at
sonable and not inconsistent with the right of 261.
Americans generally to individually keep and
2
bear their private arms as historically under- Other circuits, as well, have rejected consti-
stood in this country.” Id. at 261. It is not in- tutional challenges to § 922(g)(1). See, e.g., Unit-
consistent with the Second Amendment to lim- ed States v. Price, 328 F.3d 958, 961 (7th Cir.
it the ability of convicted felons to keep and 2003); United States v. Boer, 235 F.3d 561, 564
possess firearms. (10th Cir. 2000); Gillespie v. City of Indianapolis,
185 F.3d 693, 710 (7th Cir. 1999); United States
v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974).
Irrespective of whether his offense was vio-
lent in nature, a felon has shown manifest dis- 3
See United States v. Daugherty, 264 F.3d
regard for the rights of others. He may not 513, 518 (5th Cir. 2001); United States v. Gresh-
justly complain of the limitation on his liberty am, 118 F.3d 258, 264-65 (5th Cir. 1997); United
when his possession of firearms would other- States v. Kuban, 94 F.3d 971, 973 (5th Cir. 1996);
wise threaten the security of his fellow citi- United States v. Rawls, 85 F.3d 240, 242-43 (5th
Cir. 1996).
2
II. tors enumerated in § 3553(a).4 Section
Everist contends that the district court act-
ed improperly in sentencing him to a partially
concurrent sentence of 180 months for his vio- 4
At all times pertinent to this case, § 3553(a)
lation of the felon firearm possession statute. provided:
At the sentencing hearing, Everist requested
that his sentence run concurrently with the The court, in determining the particular sen-
300-month sentence he was serving for bank tence to be imposed, shall considerSS
robbery. After hearing Everist’s reason, the
(1) the nature and circumstances of the offense
district court allowed only 60 months to run
and the history and characteristics of the de-
concurrently. Everist does not dispute the
fendant;
calculation of the 180-month sentence––the
court properly relied on the sentencing (2) the need for the sentence imposedSS
guidelines and the presentence report. Rather,
Everist asserts that the court failed to abide by (A) to reflect the seriousness of the of-
18 U.S.C. § 3553(c)’s requirement that a court fense, to promote respect for the law, and
weigh appropriate factors and explain its rea- to provide just punishment for the offense;
soning in open court when a defendant re-
quests a concurrent sentence. (B) to afford adequate deterrence to crim-
inal conduct;
We generally review the imposition of a
consecutive sentence only for abuse of discre- (C) to protect the public from further
tion, if the court relied on permissible factors. crimes of the defendant; and
We review de novo the court’s obedience to
(D) to provide the defendant with needed
the sentencing guidelines and § 3553(c). Be-
educational or vocational training, medical
cause Everist did not object to the court’s im- care, or other correctional treatment in the
plementation of § 3553(c) during the sentenc- most effective manner;
ing proceeding, we review this discrete issue
for plain error. See United States v. Henry, (3) the kinds of sentences available;
288 F.3d 657, 664 (5th Cir. 2002); United
States v. Londono, 285 F.3d 348, 355 (5th Cir. (4) the kinds of sentence and the sentencing
2002). We will correct plain error only if it range established for -
seriously affects the fairness, integrity, or pub-
lic reputation of judicial proceedings. United (A) the applicable category of offense
States v. Ravitch, 128 F.3d 865, 869 (5th Cir. committed by the applicable category of
1997). defendant as set forth in the guidelines . . .;
or
Section 3553(c) governs a court’s consider-
(B) in the case of a violation of probation
ation of the sentence and explanation for its or supervised release, the applicable guide-
reasoning. With respect to the imposition of lines . . .
concurrent or consecutive sentences, the stat-
ute requires the court to rely on allowable fac- (5) any pertinent policy statement issued by the
Sentencing Commission pursuant to 28 U.S.C.
(continued...)
3
3553(c) requires the court to state in open factors.” United States v. Izaguirre-Losoya,
court the reasons for its imposition of a partic- 219 F.3d 437, 440 (5th Cir. 2000). It is suffi-
ular sentence. cient that “the proceedings imply consideration
of the § 3553(a) factors.” Id. The court
The district court amply fulfilled its obliga- already had made plain its view of the severity
tions under § 3553(c) with respect to the cal- of Everist’s conduct when it discussed the pre-
culation of the 180-month sentence. It relied sentence report and the manner of the sentence
on and explained the presentence report and calculation. Because the seriousness of the of-
why it believe the 180-month sentence was ap- fense was an important and allowable element
propriate, given the magnitude of the offense. under § 3553(a), the court’s statements imply
consideration of relevant factors under the
statute. Nothing in the record indicates disre-
The court gave a much more truncated ex- gard for the permissible factors under
planation, however, when, after hearing argu- § 3553(a), so there is no plain error.
ments from both sides, it denied Everist’s re-
quest for a wholly concurrent sentence. The Nor did the court commit plain error in fail-
court revealed its reasoning only via a state- ing to state its reasons for assigning Everist a
ment during Everist’s attorney’s arguments for partially concurrent sentence. Although it
a fully concurrent sentence. When counsel would have been better, given the purposes of
said that Everist had acquired his collection of § 3553(c), if the court had carefully explained
guns because he “loves to hunt,” the court in- its full reasoning, the court already, and at
terjected that “[h]e also loves to commit rob- length, had explained its displeasure with the
beries.” Nonetheless, we are confident that severity of Everist’s conduct and had noted
the court did not commit plain error either by especially his recidivism as respects bank rob-
failing to consider appropriate factors for the beries.
imposition of a partially concurrent sentence
under § 3553(c) or by failing to communicate Everist and his counsel, when presented
its reasoning in open court. with the fact that only sixty months of his sen-
tence were designated as concurrent, should
As this court has noted, other circuits re- have been neither surprised nor puzzled. In
quire “little more” than “that the record merely fact, the court was more lenient than it was re-
not evidence a disregard for the § 3553(a) quired to be, by assigning any amount of the
sentence as concurrent. And again, neither
Everist nor his counsel had questions concern-
4
(...continued) ing the imposition of the partially consecutive
994(a)(2) that is in effect on the date the sentence. There was no plain error.
defendant is sentenced;
(6) the need to avoid unwarranted sentence dis-
Even if there were plain error, the sentence
parities among defendants with similar records does not undermine the fairness, integrity, or
who have been found guilty of similar conduct; reputation of judicial proceedings. Because
and Everist had a chance to inquire further of the
court’s reasoning, we cannot say that his op-
(7) the need to provide restitution to any victims portunity to understand his sentence was
of the offense.
4
otherwise diminished by the manner in which
the court conducted the proceedings.
AFFIRMED.
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