USCA11 Case: 21-13097 Document: 45-1 Date Filed: 02/09/2023 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13097
Non-Argument Calendar
____________________
3:20-cr-00072-TJC-MCR-2
3:20-cr-00244-TJC-JRK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRY LAVON SHUMAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
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2 Opinion of the Court 21-13097
D.C. Docket Nos. 3:20-cr-00072-TJC-MCR-2,
3:20-cr-00144-TJC-JRK-1
____________________
Before GRANT, LUCK, and ANDERSON, Circuit Judges.
PER CURIAM:
Terry Shuman pleaded guilty to two counts of possessing a
firearm as a convicted felon, in violation of
18 U.S.C. section
922(g)(1). Shuman argues his 100-month sentence is substantively
unreasonable and that section 922(g)(1) is unconstitutional under
the Commerce Clause. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In November 2019, a shootout in Jacksonville left Jose Mi-
randa lying dead on the ground. Surveillance footage did not show
who started the gunfight, but it did show Mr. Miranda trading shots
with two men who escaped in a white Honda. Police found the
Honda occupied by Evonte Glover, who had been shot several
times, and a witness told them that another man had recently run
from the vehicle and had thrown a silver object to the side of the
road. The officers found Shuman fleeing from the scene—with the
Honda key in his pocket—and the pistol he threw as he fled.
After the November shootout, a federal grand jury indicted
Shuman for possessing a firearm as a convicted felon—he had been
convicted of armed robbery in 2009—and a warrant issued for his
arrest.
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21-13097 Opinion of the Court 3
In August 2020, officers attempted to pull over Shuman’s ve-
hicle to arrest him on the warrant. Shuman fled in his vehicle until
he ran off the road and crashed. He continued to run away on foot,
carrying a white backpack, until he was apprehended. In the back-
pack Shuman had a loaded .40-caliber pistol with the serial num-
bers removed. The grand jury indicted Shuman in a separate case
for possessing a firearm as a convicted felon during his August 2020
arrest.
Shuman pleaded guilty in both cases. His presentencing in-
vestigation report assigned him an offense level of 23, which ac-
counted for both aggravating characteristics like the filed-off serial
numbers and mitigating characteristics like his acceptance of re-
sponsibility. It also assigned him a category II criminal history,
based on his 2009 armed-robbery conviction. In that case, Shuman
carjacked a woman at gunpoint while the woman was holding her
granddaughter, then fled from police who were trying to appre-
hend him. Shuman’s guideline range was thus 51 to 63 months’
imprisonment.
The government sought an upward departure (1) based on
Mr. Miranda’s death and (2) because the guidelines did not ade-
quately reflect the seriousness of Shuman’s armed robbery convic-
tion. And the government alternatively asked the court to vary
upward from the guideline range and impose a ten-year sentence.
Schuman opposed the departure and variance because the evi-
dence did not show he was responsible for Mr. Miranda’s death, his
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4 Opinion of the Court 21-13097
prior offense occurred when he was a minor, and he had been try-
ing to improve himself by starting a nonprofit.
Before the district court announced Shuman’s sentence, it
explained that it was going to sentence Shuman “only according to
the charge that [he was] [t]here for” and not for the shooting of Mr.
Miranda. It then reiterated that it was “only sentencing [Shuman]
for the crimes [he was] convicted of,” not others he may have com-
mitted. Still, the district court categorized Shuman’s case on the
serious end of the “spectrum” of felon-in-possession cases, because
Shuman had not merely possessed a firearm but had used it in a
shootout that left Mr. Miranda dead and Glover shot, in a residen-
tial area where others could also have been victims of a stray bullet.
The district court said that it did not assume Shuman had fired first,
but it stated that he was not allowed to have the gun and should
not have been in the situation that led to the shootout in the first
place.
The district court then considered Shuman’s history and
characteristics, his acceptance of responsibility and work for a non-
profit organization, his “bad background[] and difficulties,” the
need for deterrence and protecting the public, the seriousness of
the offense, promoting respect for the law, and providing just pun-
ishment. It also found that Shuman’s flight from police and posses-
sion of a different firearm during the second arrest were aggravat-
ing factors, because they showed he hadn’t learned from the No-
vember shootout the dangers of illegally carrying a firearm.
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21-13097 Opinion of the Court 5
The district court varied upwards from the guideline range
and imposed a 100-month prison sentence. In its statement of rea-
sons, the district court listed five justifications for the variance: (1)
that the “[f]irearm was used in a shootout that resulted in the death
of another,” (2) Shuman’s criminal history, (3) the need to reflect
the seriousness of the offense, (4) the need to afford deterrence, and
(5) the need to avoid unwarranted sentencing disparities. Shuman
timely appealed.
STANDARD OF REVIEW
We review the substantive reasonableness of a sentence for
an abuse of discretion. Gall v. United States,
552 U.S. 38, 51 (2007).
Where the defendant raises a constitutional challenge to his con-
viction that he did not raise before the district court, we review that
challenge under a plain error standard. United States v. Madden,
733 F.3d 1314, 1320 (11th Cir. 2013).
DISCUSSION
Shuman raises two issues on appeal. First, he argues that his
sentence is substantively unreasonable because the district court
double-counted his criminal history and improperly found him cul-
pable for Miranda’s death. Second, he contends that the felon-in-
possession statute,
18 U.S.C. section 922(g)(1), is unconstitutional
under the Commerce Clause, U.S. Const. Art. I, section 8, cl. 3. We
address each in turn.
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A.
The district court varied upward from the guideline range
and sentenced Shuman to 100 months’ imprisonment. Although
the guidelines are not mandatory, a district court must offer “suffi-
cient justifications” for a variance. United States v. Brown,
772 F.3d
1262, 1266 (11th Cir. 2014) (quoting Gall,
552 U.S. at 46). A district
court abuses its discretion in varying upward when it “(1) fails to
afford consideration to relevant factors that were due significant
weight, (2) gives significant weight to an improper or irrelevant fac-
tor, or (3) commits a clear error of judgment in considering the
proper factors.” United States v. Irey,
612 F.3d 1160, 1189 (11th Cir
2010) (en banc) (quoting United States v. Campa,
459 F.3d 1121,
1174 (11th Cir. 2006)). However, a district court need not “articu-
late [its] findings and reasoning in great detail,” so long as “‘the con-
text and record’ indicate[] the reasoning behind [its] decision.”
Id.
(quoting Rita v. United States,
551 U.S. 338, 359 (2007)).
Here, the district court gave sufficient justifications for the
variance. It discussed several factors that placed Shuman’s conduct
at the more serious end of the “spectrum” of felon-in-possession
cases, including that: Shuman illegally carried a firearm into a sit-
uation that became a deadly gunfight; the shootout occurred in a
residential area and posed a danger to innocent passersby; Shuman
fled from police; and Shuman’s previous prison sentence for a vio-
lent offense had not deterred him from misconduct. And the dis-
trict court considered that Shuman carried a separate firearm at the
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21-13097 Opinion of the Court 7
time of his second arrest, so the gunfight and Mr. Miranda’s death
evidently did not lead him to reconsider illegally carrying a firearm.
Shuman argues that the district court improperly found him
“somehow culpable” for Mr. Miranda’s death and “improperly re-
lied on” it to vary upward from the guidelines. But the record con-
tradicts Shuman’s argument. The district court stated that it was
sentencing Shuman “only according to the charge that [he was]
[t]here for” and not for homicide. It said that it didn’t assume Schu-
man was culpable for Mr. Miranda’s death and that it was punish-
ing him for “the crime of felon in possession, not for the death of
Mr. Miranda, per se.” And it disclaimed any finding that Shuman
had initiated the shooting; it clarified that his felon-in-possession
offense was more severe because he was not allowed to have a gun
and shouldn’t have been in the situation that led to Mr. Miranda’s
death.
Shuman also contends that the district court abused its dis-
cretion by using his criminal history as a justification for the vari-
ance, since his criminal history was already reflected in his offense
level and criminal history score. But the district court gave a rea-
soned basis for considering Shuman’s prior conviction in varying
upward. The seriousness of the prior offense—Shuman carjacked
a grandmother at gunpoint while she held her granddaughter, then
tried to escape from police in a car chase—warranted some addi-
tional consideration in the ultimate sentence. A “district court may
vary upward based on conduct that was already considered in cal-
culating the guideline range.” United States v. Taylor, 997 F.3d
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8 Opinion of the Court 21-13097
1348, 1355 (11th Cir. 2021). The district court was free to exercise
its “sound discretion” in weighing Shuman’s criminal history to de-
termine his sentence, United States v. Clay,
483 F.3d 739, 743 (11th
Cir. 2007) (citation omitted), and we do not find that the district
court abused its discretion here.
B.
Shuman’s second argument is that the federal felon-in-pos-
session statute,
18 U.S.C. section 922(g), is unconstitutional under
the Commerce Clause. He argues that the statute’s ban on “pos-
sess[ing] in or affecting commerce, any firearm” is unconstitutional
under United States v. Lopez,
514 U.S. 549, 559 (1995).
As Shuman recognizes, our precedent forecloses his argu-
ment. We have already held that Lopez did not invalidate section
922(g) under the Commerce Clause. See United States v. McAllis-
ter,
77 F.3d 387, 390 (11th Cir. 1996) (“Nothing in Lopez suggests
that the “minimal nexus” test should be changed. Because the gov-
ernment demonstrated that the firearm possessed by McAllister
previously had travelled in interstate commerce, the statute is not
unconstitutional as applied to him.”). The district court thus did
not commit plain error. See United States v. Olano,
507 U.S. 725,
734 (explaining that an error is not plain “unless the error is clear
under current law”).
AFFIRMED.
