United States v. Airamis J. Williams , 709 F. App'x 988 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-16963
Non-Argument Calendar
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D.C. Docket No. 6:16-cr-00013-GKS-GJK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AIRAMIS J. WILLIAMS,
a.k.a. Demp,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(September 25, 2017)
Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
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On January 20, 2016, a sealed indictment was returned against Airamis J.
Williams for possession of a firearm, a Davis Industries .22 caliber revolver, by a
convicted felon in violation of 18 U.S.C. § 922(g)(1). He was arraigned on April
11, 2016 following his arrest, and pled guilty to the charge on July 11, 2016. The
District Court subsequently sentenced Williams to prison for 110 months, a
sentence below the Guidelines sentence range. He appeals the sentence on the
grounds (1) that the District Court erred in enhancing his base offense levels under
U.S.S.G. § 2K2.1(b)(1)(A) for possession of three firearms and under U.S.S.G.
§ 2K2.1(b)(4)(A) because one of the firearms was stolen; (2) that his sentence is
procedurally and substantively unreasonable; and (3) that § 922(g) is
unconstitutional facially and as applied. We affirm.
I.
These are the events that led to Williams’ indictment and sentence. In June
2015, a confidential informant (“CI”) entered Williams’ residence to purchase
marijuana and a gun. Williams offered to sell him a .380 caliber revolver and a
pocket-sized pistol, but the CI wanted a Davis Industries .22 caliber revolver,
which Williams did not have at the moment. The CI returned a week later and
observed a bag of marijuana and a .357 caliber revolver on Williams’ kitchen
counter. The CI bought an ounce of the marijuana and left. The CI went back the
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next week intending to buy the .357 revolver and marijuana. He observed several
pounds of marijuana, bought an ounce and left.
On July 30, 2015, based on the CI’s report of seeing large quantities of
cocaine, marijuana, other drugs and a number of firearms at Williams’s residence,
the Orange County Sheriff’s office went there with a search warrant and seized
drugs and a Springfield Armory .40 caliber pistol. The pistol had been reported
stolen in 2014.
On March 6, 2016, several weeks following Williams’ indictment but prior
to his arrest, the Orlando police, acting on a tip that Williams was selling drugs
from a new residence he was occupying, executed a search warrant and seized
drugs and a loaded Springfield Armory .45 caliber pistol.
II.
U.S.S.G. § 2K2.1(b)(1)(A) provides for a two-level increase of the base
offense level if the defendant possessed three to seven firearms. Only firearms
such as those depicted above, that were “unlawfully sought to be obtained,
unlawfully possessed, or unlawfully distributed” are counted under § 2K2.1(b)
(emphasis added). U.S.S.G. § 2K2.1(b)(1), comment., n.5. Under U.S.S.G. §
1B1.3(a), specific offense characteristics are determined based on all acts and
omissions by the defendant in relation to the subject offense, here a violation of 18
U.S.C. § 922(g). For firearm-related offenses falling under § 2K2.1, relevant
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conduct includes all acts and omissions that were part of “the same course of
conduct or common scheme or plan as the offense of conviction,” i.e., 18 U.S.C. §
922(g) in this case. U.S.S.G. § 1B1.3(a)(2). For multiple events, such as those
depicted in Part I above, to form a common scheme or plan, they must be
“substantially connected to each other by at least one common factor, such as . . .
[a] common purpose, or similar modus operandi.” U.S.S.G. § 1B1.3, comment.,
n.5(B)(i). In evaluating whether multiple firearm possessions meet this test, a
sentencing court considers “the degree of similarity of the offenses, the regularity
(repetitions) of the offenses, and time intervals between the offenses.” United
States v. Fuentes, 107 F.3d 1515, 1525 (11th Cir. 1997) (quoting U.S.S.G. § 1B1.3,
comment., n.9(B)) .
As for “similarity,” Williams possessed all three firearms as a felon in
possession in violation of § 922(g). As to regularity, as the presentence
investigation report (“PSI”) indicates, Williams regularly sold drugs and firearms
out of his residence. Regarding temporal proximity, less than two months passed
between the possession of the first firearm on June 9, 2015, and the second firearm
on July 30, 2015. The nine-month interval between the first and last possession on
March 6, 2016, is longer, but not so long as to warrant a conclusion that the last
possession was separate from the first possession. The Court’s finding, albeit
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implicit, that Williams possessed the three guns in the same course of conduct does
not amount to clear error.
Section 2K2.1(b)(4)(A) provides for a two-level enhancement if the firearm
was stolen. We find no clear error in the Court’s application of the enhancement
because the PSI established that the Springfield Armory .40 caliber pistol was
stolen.
II.
Williams argues that his sentence is procedurally and substantively
unreasonable. We review a sentence for reasonableness, which “merely asks
whether the trial court abused its discretion.” Rita v. United States, 551 U.S. 338,
351 (2007). The first step in reviewing the reasonableness of a sentence is to
assess whether the sentence is procedurally reasonable. Gall v. United States, 552
U.S. 38, 51 (2007). We determine whether “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.
As to the court’s explanation for the sentence, the court “should set forth
enough to satisfy the appellate court that [it] has considered the parties’ arguments
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and has a reasoned basis for exercising [its] own legal decisionmaking authority.”
United States v. Agbai, 497 F.3d 1226, 1230 (11th Cir. 2007) (quotation omitted).
In a case such as this one, where the District Court imposes a sentence within the
Guidelines sentence range, “doing so will not necessarily require lengthy
explanation.” Rita, 551 U.S. at 356. Moreover, when a district court considers the
18 U.S.C. § 3553(a) factors, it need not state on the record that it has explicitly
considered each of the § 3553(a) factors, or discuss the role that each played in the
sentencing decision. United States v. Docampo, 573 F.3d 1091, 1100 (11th Cir.
2009). “[A]n acknowledgment by the district court that it has considered the
defendant’s arguments and the factors in section 3553(a) is sufficient.” Id.
(quoting United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (per curiam)).
Substantive reasonableness review seeks to evaluate “whether the sentence
imposed by the district court fails to achieve the purposes of sentencing as stated in
section 3553(a).” Talley, 431 F.3d at 788. The court must impose a sentence
“sufficient, but not greater than necessary to comply with the purposes” listed in §
3553(a)(2), including the need to reflect the seriousness of the offense, deter
criminal conduct, and protect the public from the defendant’s future criminal
conduct. See 18 U.S.C. § 3553(a)(2)(A)–(D). In imposing a particular sentence,
the court must also consider the nature and circumstances of the offense, the
history and characteristics of the defendant, the kinds of sentences available, the
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applicable guidelines range, pertinent policy statements, the need to avoid
unwarranted sentencing disparities, and the need to provide restitution to victims.
Id. § 3553(a)(1), (3)–(7). The weight given to any specific § 3553(a) factor is
committed to the “sound discretion” of the district court. United States v. Clay,
483 F.3d 739, 743 (11th Cir. 2007) (quotations omitted).
While we have not adopted a presumption of reasonableness for sentences
within the guidelines range, United States v. Campbell, 491 F.3d 1306, 1313 (11th
Cir. 2007), we have stated that “when the district court imposes a sentence within
the advisory Guidelines range, we ordinarily will expect that choice to be a
reasonable one.” Docampo, 573 F.3d at 1101 (quotations omitted). Moreover, a
sentence imposed “well below” the statutory maximum penalty is an indicator of
reasonableness. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
Williams has not shown that his sentence, imposed at the low-end of the
Guidelines range, was procedurally unreasonable. First, the record does not show
that the Court concluded that the Guidelines were presumptively valid. In
addition, the Court stated that it had considered the § 3553(a) factors and
adequately explained the reasons for the sentence, namely Williams’s extensive
criminal history. Moreover, the record belies Williams’s assertion that the Court
did not consider mitigating factors.
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Williams also does not demonstrate that his sentence was substantively
unreasonable in light of the record and § 3553(a)’s sentencing objectives. The
sentence of 110 months’ imprisonment falls within the Guidelines sentence range
and below the statutory maximum sentence, which indicates reasonableness. See
Docampo, 573 F.3d at 1101; Gonzalez, 550 F.3d at 1324. Furthermore, the
sentence reasonably meets the sentencing goals of § 3553(a)(2) in light of the
totality of the circumstances. As the Court noted, Williams had an extensive
criminal history, with 13 prior arrests and a criminal history category of VI. While
Williams asserts that he presented mitigating arguments and faults the Court for
not imposing a lower sentence based on those arguments; the weight to be given a
particular factor is within the discretion of the court. See Clay, 483 F.3d at 743. It
was also within the court’s discretion to decide that Williams’s mitigating
arguments were unconvincing.
Lastly, Williams argues that his conviction should be vacated because 18
U.S.C. § 922(g) is facially unconstitutional because it exceeds Congress’s authority
under the Commerce Clause, and is unconstitutional as applied to his possession of
firearms. The problem with his argument is that it is foreclosed by precedent. In
United States v. Wright, 607 F.3d 708, 715–16 (11th Cir. 2010), we held that
§ 922(g) is not constitutionally invalid under the Commerce Clause. We also
rejected the defendant’s argument that § 922(g) was unconstitutional as applied to
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him because mere possession of a firearm does not substantially effect interstate
commerce.
AFFIRMED.
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