United States v. Norman Russell Willis , 550 F. App'x 763 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-11063
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-00035-WS-C-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NORMAN RUSSELL WILLIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Alabama
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(December 19, 2013)
Before CARNES, Chief Judge, TJOFLAT and JORDAN, Circuit Judges.
PER CURIAM:
Norman Russell Willis appeals his 60-month sentence after pleading guilty
to one count of being a felon in possession of a firearm in violation of 18 U.S.C.
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§ 922(g). He contends that his sentence is procedurally and substantively
unreasonable.
I.
Willis shot his friend, James Owens, the night of November 15, 2011.
Willis was intoxicated and waving the gun around when it went off. The bullet
struck Owens through the chest and neck, putting him in the hospital. A federal
grand jury indicted Willis in March 2012, charging him with one count of being a
felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Willis pleaded
guilty in November 2012.
The presentence investigation report (PSR) calculated a base offense level of
14 under United States Sentencing Guideline § 2K2.1(a)(6). Because Willis
possessed the firearm in connection with another felony offense — his aggravated
assault of Owens — the PSR added 4 levels under § 2K2.1(b)(6)(B). The PSR
then followed the cross-referencing provision in § 2K2.1(c)(1)(A) and considered
the base offense level and enhancement provisions for aggravated assault under
§ 2A2.2. It kept the same base offense level of 14, see U.S.S.G. § 2A2.2(a), but
applied several enhancements. The PSR added 5 levels under § 2A2.2(b)(2)(A)
because the firearm was discharged, and 7 levels under § 2A2.2(b)(3)(C) because
Owens sustained a life-threatening bodily injury. While 5 plus 7 normally equals
12, the cumulative enhancement under § 2A2.2(b)(2) and (3) cannot exceed 10
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levels. See U.S.S.G. § 2A2.2(b)(3)(E). So Willis received only a 10-level
adjustment. Finally, the PSR subtracted three levels for acceptance of
responsibility under § 3E1.1, giving Willis a total offense level of 21. That offense
level combined with Willis’ criminal history category of IV to give him a
guidelines range of 57 to 71 months imprisonment.
Willis raised several objections to the PSR; one of them is relevant to this
appeal. He pointed out that his sentencing enhancements were predicated on an
aggravated assault, and argued that they should not apply because he did not act
with the intent required for aggravated assault. The government responded by
calling Owens as a witness at the sentencing hearing. Owens testified that Willis
did not purposefully shoot him, and that the gun went off when Willis was waving
it around. The government used Owens’ testimony to contend that Willis’ actions
amounted to second-degree assault under Alabama law, which is a Class C felony.
See Ala. Code § 13A-6-21(a)(3), (b). It then argued that a felonious assault under
state law, combined with the serious bodily injury Owens suffered, amounted to
aggravated assault under the guidelines. See U.S.S.G. § 2A2.2 cmt. n.1.
The district court accepted the government’s position and held that the
shooting qualified as an aggravated assault under the guidelines. The court took
the base level of 14, then added a 5-level enhancement under § 2A2.2(b)(2)(A) for
discharge of a firearm and a 5-level enhancement under § 2A2.2(b)(3)(B) for
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“serious bodily injury” to the victim. 1 Finally, the court subtracted 3 levels under
§ 3E1.1 for acceptance of responsibility resulting in a total offense level of 21, as
before, along with the same criminal history category of IV, yielding the same
guidelines range of 57 to 71 months. The district court then considered the
sentencing factors under 18 U.S.C. § 3553(a) and settled on a sentence of 60
months imprisonment.
II.
We review sentencing decisions only for an abuse of discretion, using the
two-step method outlined in Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586,
597 (2007). First, we review the procedural soundness of the decision, checking to
ensure, among other things, that the district court has not miscalculated the
guidelines range, treated the guidelines as mandatory, failed to consider the
§ 3553(a) factors, selected a sentenced based on clearly erroneous facts, or failed to
adequately explain the chosen sentence — including any deviation from the
guidelines range. United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009).
Next, we assess the “substantive reasonableness” of the decision given the totality
of the circumstances, “including the extent of any variance from the Guidelines
range.” Id. (quotation marks omitted). In making the second inquiry, we do not
1
The district court relied on § 2A2.2(b)(3)(B) because the parties stipulated at the sentencing
hearing that there was a serious bodily injury. Doing that actually made no difference to the
ultimate guidelines calculation because Willis’ base offense level was 21 regardless of whether
the court used § 2A2.2(b)(3)(B) or § 2A2.2(b)(3)(C). See U.S.S.G. § 2A2.2(b)(3)(E).
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presume that sentences outside the guidelines are unreasonable, but we can
consider the extent of the variance in making our assessment. Id.
A.
Willis contends that the district court miscalculated his guidelines range by
cross-referencing the aggravated assault guidelines in U.S.S.G. § 2A2.2. His
argument rests on the mistaken assumption that intent is a necessary element of
“aggravated assault” under § 2A2.2. The commentary to § 2A2.2 states that:
“‘Aggravated assault’ means a felonious assault that involved (A) a dangerous
weapon with intent to cause bodily injury (i.e., not merely to frighten) with that
weapon; (B) serious bodily injury; or (C) an intent to commit another felony.”
U.S.S.G. § 2A2.2 cmt. n.1 (emphasis added). Contrary to Willis’ reading, we
conclude that the disjunctive structure of the definition gives an independent
meaning to each of the three demarcated clauses. See Jaggernauth v. U.S.
Attorney Gen., 432 F.3d 1346, 1353–54 (11th Cir. 2005). So subsection (B)’s
definition of aggravated assault does not include the “intent” element found in
subsections (A) and (C). U.S.S.G. § 2A2.2 cmt. n.1. See also United States v.
Garcia-Camacho, 122 F.3d 1265, 1268 (9th Cir. 1997) (“Section 2A2.2 . . . applies
even where there is no finding that a defendant had the specific intent to cause
serious bodily injury.”). So the district court did not abuse its discretion as long as
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it could conclude that (1) Willis committed a “felonious assault,” and (2) Owens
suffered “serious bodily injury.”
The government presented evidence that allowed the court to do just that.
Initially, Owens testified that Willis was “pretty intoxicated,” that he was
“playing” with the gun, and that he was “waving the gun around” when it went off.
The district court did not abuse its discretion by concluding that Willis’ behavior
met the elements for second-degree assault under Alabama Code § 13A-6-21(a)(3).
Cf. Powell v. Alabama, 576 So. 2d 1285 (Ala. Crim. App. 1991) (upholding a
guilty verdict under § 13A-6-21(a)(3) where the defendant drove while intoxicated,
at excessive speeds, on a wet highway). Owens also testified that the bullet wound
put him in the hospital for several days. An injury that puts the victim in the
hospital qualifies as a “serious bodily injury” under the guidelines. See U.S.S.G.
§ 1B1.1 cmt. n.1(L). The evidence presented at sentencing thus allowed the
district court to conclude that Willis committed an aggravated felony, and the
district court’s cross-referencing of the aggravated assault guidelines was therefore
not an abuse of discretion.
B.
Willis also contends that his sentence is substantively unreasonable. He has
not, however, carried his burden of demonstrating that the district court
“committed a clear error in judgment in weighing the § 3553(a) factors.” United
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States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quotation marks
omitted). While he points to several facts that he believes should have received
greater weight from the district court, the abuse-of-discretion standard requires
more. See Gall, 552 U.S. at 51, 128 S.Ct. at 597 (“The fact that the appellate court
might reasonably have concluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.”). The totality of the
circumstances show that Willis’ sentence was reasonable. His within-the-
guidelines-range sentence takes into account the nature and circumstances of his
offense, his criminal and personal history, as well as the other § 3553(a) factors.
AFFIRMED.
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