[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15723 ELEVENTH CIRCUIT
Non-Argument Calendar DECEMBER 14, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cr-00114-WS-B-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOUGLAS WADE BRAITHWAITE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(December 14, 2011)
Before EDMONDSON, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Douglas Wade Braithwaite appeals his 84-month sentence, imposed after he
pleaded guilty to one count of being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1). On appeal, Braithwaite argues that the district court erred
in: (1) determining that he possessed a semiautomatic firearm capable of accepting
a large capacity magazine, under U.S.S.G. § 2K2.1(a)(4)(B); and (2) applying a
four-level enhancement, under U.S.S.G. § 2K2.1(b)(6), for possession of a firearm in
connection with another felony offense. After careful review, we affirm.
Whether the firearm in question was a semiautomatic firearm capable of
accepting a large capacity magazine for the purposes of § 2K2.1(a)(4)(B), and
whether a firearm was used or possessed in connection with another felony offense,
are findings of fact, and we normally review such findings for clear error. See United
States v. Edmonds, 348 F.3d 950, 952-53 (11th Cir. 2003). 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) (quoting United States v. Williams, 431
F.3d 767, 773 (11th Cir. 2005) (Carnes, J., concurring)). This is an “assumed error
harmlessness inquiry” with two steps. Id. First, the record must clearly indicate that
the district court would have imposed the same sentence had it decided the guideline
issue in the defendant’s favor. This step is satisfied if the district court explicitly
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states on the record that it would have done so. Second, the sentence must be
reasonable even if the guideline issues had been resolved in the defendant’s favor.
Id.
Here, the district court explicitly and unambiguously said that it would have
imposed the same sentence regardless of how it decided the guideline issues. This
express statement is sufficient to trigger Keene’s harmless error analysis, which
means that we may affirm Braithwaite’s sentence if it is reasonable, based on the
assumption that the district court decided the disputed sentencing issues in
Braithwaite’s favor. See id. at 1348-49. Assuming that the district court had done
so, § 2K2.1(a)(6)(A) would have been used to set his base offense level at 14, and
without the 4-level enhancement for possession of a firearm in connection with
another felony offense, Braithwaite’s total adjusted offense level would have been 15.
With a criminal history category of IV, this results in a suggested guidelines range of
30 to 37 months. See U.S.S.G. Sentencing Table, Ch. 5, Pt. A. We therefore must
determine whether Braithwaite’s 84-month sentence, which represents a 47-month
upward variance from the high end of that range, was reasonable.
We review the sentence a district court imposes for “reasonableness,” which
“merely asks whether the trial court abused its discretion.” United States v. Pugh,
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515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338,
351 (2007)).
In reviewing sentences for reasonableness, we typically perform two steps. Id.
at 1190. First, we “‘ensure that the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately explain
the chosen sentence -- including an explanation for any deviation from the Guidelines
range.’” Id. (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).1 “[T]he
justification for [any] variance must be sufficiently compelling to support the degree
of the variance.” United States v. Irey, 612 F.3d 1160, 1187 (11th Cir. 2010) (en
banc) (quotation omitted), cert. denied, 131 S.Ct. 1813 (2011). We may not presume
that a non-guidelines sentence is unreasonable and generally must defer to the district
court’s decision that the § 3553(a) factors justify the extent of the variance. See id.
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The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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If we conclude that the district court did not procedurally err, we must consider
the “‘substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard,’” based on the “‘totality of the circumstances.’” Pugh,
515 F.3d at 1190 (quoting Gall, 552 U.S. at 51). This review is “deferential,”
requiring us to determine “whether the sentence imposed by the district court fails to
achieve the purposes of sentencing as stated in section 3553(a).” United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005). “[W]e will not second guess the weight
(or lack thereof) that the [district court] accorded to a given factor . . . as long as the
sentence ultimately imposed is reasonable in light of all the circumstances presented.”
United States v. Snipes, 611 F.3d 855, 872 (11th Cir. 2010) (quotation, alteration and
emphasis omitted), cert. denied, 131 S. Ct. 2962 (2011). We will “vacate the sentence
if, but only if, we are left with the definite and firm conviction that the district court
committed a clear error of judgment in weighing the § 3553(a) factors by arriving at
a sentence that lies outside the range of reasonable sentences dictated by the facts of
the case.” See Irey, 612 F.3d at 1190.
Braithwaite’s above-guidelines sentence was not procedurally or substantively
unreasonable. When imposing its sentence, the district court explicitly said that it had
considered the § 3553(a) factors in fashioning a sentence that would accomplish the
statute’s sentencing objectives. Specifically, the district court relied heavily on
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Braithwaite’s criminal history and characteristics. 18 U.S.C. § 3553(a)(1). The
district court acknowledged that Braithwaite’s seven criminal history points were
only a “moderate number of points,” but that Braithwaite’s overall criminal history
indicated that he had been in trouble with the law repeatedly since age ten. The
district court further noted that Braithwaite’s criminal history indicated a “long-term
trend” and “a total disregard for any kind of lawful activity.”
Nothing in the district court’s discussion at the sentencing hearing indicates
that Braithwaite’s criminal history was given preference to the exclusion of all other
§ 3553(a) factors. In fact, the district court also explicitly noted the seriousness of
Braithwaite’s criminal conduct in this instance, another § 3553(a) factor. See 18
U.S.C. § 3553(a)(2)(A). As revealed by the testimony of Special Agent Johnny
Thornton, Braithwaite illegally possessed several loaded firearms, and would not
relinquish one of them during the execution of the search warrant, indicating that the
officers faced a very dangerous situation. Given these circumstances, it was not an
abuse of discretion for the district court to conclude that an 84-month sentence
accurately reflected the seriousness of Braithwaite’s offense conduct.
Accordingly, we affirm Braithwaite’s sentence because, even if there was a
misapplication of the sentencing guidelines, “the error did not affect the district
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court’s selection of the sentence imposed.” Keene, 470 F.3d at 1350 (quotation omitted).
AFFIRMED.
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