[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16064 ELEVENTH CIRCUIT
APRIL 23, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-00225-CR-2-KOB-RRA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENJAMIN JAMAR WEEKS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(April 23, 2010)
Before CARNES, BARKETT AND MARCUS, Circuit Judges.
PER CURIAM:
Benjamin Jamar Weeks appeals his 37-month sentence following a
conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. §
922(g)(1). On appeal, Weeks argues that the district court erred by applying a two-
level enhancement pursuant to U.S.S.G. § 2K2.1(b)(4)(A) because the government
failed to prove by a preponderance of the evidence that the firearm he possessed
was stolen.
Whether the firearm in question was stolen is a finding of fact that we
review only for clear error. See United States v. Walker, 490 F.3d 1282, 1299
(11th Cir. 2007). Because Weeks objected to this factual finding, the government
had the burden of proving by a preponderance of the evidence that the firearm was
indeed stolen. See United States v. Moriarty, 429 F.3d 1012, 1022 (11th Cir.
2005). Whether or not the court erred in finding that the government had
sufficiently proved that the gun was stolen is immaterial as “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)).
When (1) the district court explicitly states that it would have imposed the
same sentence had it decided the guidelines issue in the defendant’s favor, and (2)
the sentence imposed would be reasonable even if the court had decided the
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guidelines issue in the defendant’s favor, we affirm the sentence. Keene, 470 F.3d
at 1349. Here, the district court explicitly and unambiguously stated that it would
have imposed the same sentence regardless of how it decided the guidelines issues.
Under Keene, we therefore affirm Weeks’s 37-month sentence if it is reasonable
even without application of the § 2K2.1(b)(4)(A) enhancement.
The reasonableness of a sentence depends on whether, under the totality of
the circumstances, the factors outlined in § 3553(a) support the sentence. Gall v.
United States, 552 U.S. 38, 53-54 (2007). The sentence must be “sufficient, but
not greater than necessary” to achieve the purposes of sentencing outlined in §
3553(a)(2), which include the need to reflect the seriousness of the offense, to
afford adequate deterrence, to promote respect for the law, to provide just
punishment for the offense, to protect the public, and to provide the defendant with
needed educational or vocational training. 18 U.S.C. § 3553(a) and (a)(2). In
addition, the sentencing court must take into account certain factors, such as the
nature and circumstances of the offense and the history and characteristics of the
defendant. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005); 18 U.S.C.
§ 3553(a)(1). We normally expect a sentence within the advisory guidelines range
to be a reasonable one. See Talley, 431 F.3d at 788.
If Weeks had succeeded in persuading the court not to apply the two-level §
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2K2.1(b)(4)(A) enhancement, Weeks’s base offense level would have been 17,
and, with a criminal history category of III, would have resulted in a guideline
range of 30-37 months’ imprisonment. See U.S.S.G. Sentencing Table, Ch. 5,
Pt. A. Although we apply no presumption of per se reasonability to within-
Guidelines sentences such as Weeks’s, we ordinarily expect that such sentences are
reasonable. Talley, 431 F.3d at 787-88.
In this case, the district court found that the Weeks’s 37-month sentence
reflected the seriousness of the crime, the need to protect the public and provide
respect for the law, and considered Weeks’s rehabilitative needs. The district court
also considered Weeks’s extensive criminal history, character, and background.
Given the totality of these circumstances, a 37-month sentence is not unreasonable,
even if the guideline range was 30-37 months instead of 37-46 months. See United
States v. Hunt, 459 F.3d 1180, 1185 (11th Cir. 2006) (holding that a district court
may determine what weight to give the guidelines so long as the sentence is made
with reference to the remaining § 3553(a) factors). Accordingly, we affirm
Weeks’s sentence because, even if there was a misapplication of the §
2K2.1(b)(4)(A) enhancement, “the error did not affect the district court’s selection
of the sentence imposed.” Keene, 470 F.3d at 1350.
AFFIRMED.
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