United States v. Kevin Leon Thompson ( 2013 )

Case: 12-14985 Date Filed: 05/07/2013 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14985
Non-Argument Calendar
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Docket No. 1:12-cr-20306-JLK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN LEON THOMPSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 7, 2013)
Before TJOFLAT, PRYOR, and EDMONDSON, Circuit Judges.
PER CURIAM:
Kevin Thompson appeals his conviction and 37-month sentence for being a
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). No
reversible error has been shown; we affirm.
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On appeal, Thompson argues that his conviction must be vacated because
section 922(g)(1) is unconstitutional both on its face and as applied to him.
Because Thompson raises this issue for the first time on appeal, we review it only
for plain error. See United States v. Peters, 403 F.3d 1263, 1270 (11th Cir. 2005).
We reject Thompson’s facial challenge to the constitutionality of section
922(g)(1) as foreclosed by our precedent. See, e.g., United States v. Wright, 607
F.3d 708, 715 (11th Cir. 2010) (concluding that section 922(g)(1) “is not an
unconstitutional exercise of Congress’s power under the Commerce Clause”). We
also reject Thompson’s argument that section 922(g)(1) is unconstitutional as
applied to him because -- as Thompson has stipulated -- the gun that Thompson
possessed in Florida was manufactured outside of Florida and, thus, had traveled in
interstate commerce. See id. at 715-16 (noting that section 922(g) “only requires
that the government prove some ‘minimal nexus’ to interstate commerce, which it
may accomplish by ‘demonstrat[ing] that the firearm possessed traveled in
interstate commerce.’”). Thompson has failed to demonstrate error, plain or
otherwise.
Next, Thompson argues that his sentence is substantively unreasonable
because it is greater than necessary to comply with the statutory sentencing goals
under 18 U.S.C. § 3553(a). At sentencing, Thompson sought a downward
variance, arguing that he possessed a gun because he lived in an area with a lot of
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violent crime and because he was concerned about his daughters’ safety. The
district court denied the request and sentenced Thompson to 37 months’
imprisonment.
We evaluate the substantive reasonableness of a sentence under a deferential
abuse-of-discretion standard. Gall v. United States, 128 S.Ct. 586, 597 (2007).
The party challenging the reasonableness of the sentence bears the burden of
establishing that the sentence is unreasonable in the light of both the record and the
section 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir.
2005). *
Thompson’s sentence -- which was at the low end of the applicable
guidelines range of 37 to 46 months -- was substantively reasonable. See id.(noting that ordinarily we would expect a sentence within the Guidelines range to
be reasonable). The sentence was also well below the statutory maximum of 10-
years imprisonment. See United States v. Winingear, 422 F.3d 1241, 1246 (11th
Cir. 2005) (comparing, as one indication of reasonableness, the actual prison term
imposed against the statutory maximum).
*
Under section 3553(a), a district court should consider the nature and circumstances of the
offense, the history and characteristics of the defendant, the need for the sentence to provide
adequate deterrence, respect for the law, and protection of the public, policy statements of the
Sentencing Commission, provision for the medical and educational needs of the defendant, and
the need to avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(1)-(7).
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Thompson argues that the district court should have given more weight to
one section 3553(a) factor: his history and characteristics. But, “[t]he weight to be
accorded any given § 3553(a) factor is a matter committed to the sound discretion
of the district court.” United States v. Williams, 526 F.3d 1312, 1322 (11th Cir.
2008). On this record, we cannot say that Thompson’s sentence failed to reflect
the purposes of sentencing or that the district court clearly erred in weighing the
section 3553(a) factors: no abuse of discretion.
AFFIRMED.
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