United States v. Cecil Levon Grider , 337 F. App'x 820 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
July 21, 2009
No. 08-15727 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00005-CR-WS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CECIL LEVON GRIDER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(July 21, 2009)
Before BIRCH, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Cecil Levon Grider appeals his 30-month sentence for possession of
ammunition by a convicted felon. On appeal, Grider challenges the application of
U.S.S.G. § 2K2.1 to his base offense level, alleging that, as a matter of policy, it
unfairly establishes equal punishments for possession of ammunition and
possession of a firearm. In the alternative, Grider contends the district court should
have downwardly departed or varied from the Guideline range based on this unfair
punishment scheme and his personal circumstances and history and that the court’s
refusal to do so reflected an improper “presumption of reasonableness” for the
Guideline range. We find no merit to either of these arguments.
I.
Grider argues that the district court erred by applying § 2K2.1 in
determining his base offense level because it failed to distinguish between
possession of a firearm and possession of ammunition in spite of the court’s
acknowledgment that there was “certainly” a difference between the two. Grider
asserts that under Kimbrough v. United States, 552 U.S. __, 128 S. Ct. 558 (2007),
the district court could have disregarded § 2K2.1 based on a policy disagreement
with equating firearms and ammunition. We disagree.
In United States v. Vazquez, 558 F.3d 1224 (11th Cir. 2009), we held that
Kimbrough addressed only a district court's discretion to vary from the Guidelines
“based on a disagreement with Guideline, not Congressional, policy.” Id. at 1229.
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In this case, however, Congress explicitly prohibits a felon from possessing either
ammunition or a firearm, 18 U.S.C. § 922(g), and possession of either subjects a
defendant to the same penalties, see generally 18 U.S.C. § 924(a). In order to
effectuate this congressional policy, U.S.S.G. § 2K2.1 governs sentencing for
unlawful receipt, possession, or transportation of both a firearm or ammunition.
Although it retained its full discretion to deviate from the Guidelines based upon
the unique circumstances of Grider’s case, the district court did not err in declining
to disregard § 2K2.1.
II.
We generally lack jurisdiction to review a district court’s refusal to grant a
downward departure, unless the district court incorrectly believed that it lacked the
statutory authority to depart from the Guidelines range. United States v. Norris,
452 F.3d 1275, 1282 (11th Cir. 2006).1 We review de novo whether the district
court believed it lacked authority to depart. United States v. Holden, 61 F.3d 858,
860 (11th Cir. 1995). When nothing in the record indicates otherwise, we assume
that the sentencing court understood it had authority to depart downward. United
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In addition, we may review a refusal to grant a downward departure to the extent that it
was based on a possible misinterpretation or misapplication of the Guidelines’ directives
regarding such departures. United States v. Castellanos, 904 F.2d 1490, 1497 (11th Cir. 1990).
However, Ward does not argue that the court misapplied or misinterpreted a provision of the
Guidelines related to downward departure.
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States v. Chase, 174 F.3d 1193, 1195 (11th Cir.1999). .2
In this case, the court correctly determined Grider’s Guideline range, and we
see no indication in the record that the court mistakenly believed that it lacked the
authority to depart downward. Although the district judge did indicate that he felt
“obliged to apply [the] Guideline” in spite of his agreement with Grider that there
is a difference between possessing a gun and possessing ammunition, this
statement goes to the court’s (accurate) understanding that it lacked discretion to
disregard a federal statute, namely 18 U.S.C. § 922(g), which prohibits possession
of both a firearm and ammunition, or § 924(a), which provides punishment for the
violation of § 922(g). However, it does not demonstrate a mistaken belief that the
court lacked the discretion to depart downward based on other factors unique to the
defendant or his situation. Therefore, we lack jurisdiction to review the district
court’s decision not to downwardly depart from the Guidelines range.
III.
Our review of the district court’s decision not to grant Grider a “variance”
from the Guidelines, as opposed to a departure, is more appropriately considered a
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Grider bore the burden of proving, by a preponderance of the evidence, that he was
entitled to the departure. United States v. Stuart, 384 F.3d 1243, 1246 (11th Cir. 2004). Any
“factor which removes the case from the heartland of the Guidelines and warrants a downward
departure must be supported by evidence in the record.” Id.; see also U.S.S.G. § 5K2.0
(providing that a district court has the authority to depart downward only if it finds an
aggravating or mitigating circumstance “not adequately taken into consideration by the
Sentencing Commission in formulating the Guidelines . . .”).
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review of the reasonableness of the court’s sentence in light of the sentencing
factors set forth at 18 U.S.C. § 3553(a). See United States v. Willis, 560 F.3d
1246, 1251 (11th Cir. 2009). We review the reasonableness of a sentence for
abuse of discretion. Gall v. United States, 552 U.S. 38, 128 S. Ct. 586 (2007).
Specifically, we
must first ensure that 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. at 597.
Although district courts must consider the Guidelines as one of several §
3553 factors, district courts may not presume that a sentence within the Guidelines
range is reasonable. See Rita v. United States, 551 U.S. 338, ___, 127 S. Ct. 2456,
2465 (2007).
Our review of the sentencing transcript in this case demonstrates that the
district court adequately considered the § 3553(a) factors and did not erroneously
apply a presumption of reasonableness to the Guidelines range. Indeed, the court
specifically noted that it was required to consider § 3553(a) “to find a sentence
that’s reasonable and appropriate under the circumstances” and that it believed that
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a 30-month sentence was reasonable and appropriate. The court indicated that it
had considered Grider’s personal history and characteristics, a psychiatric report on
Grider’s alleged mental deficiencies, and Grider’s extensive criminal history before
arriving at the sentence imposed. The court also considered a letter from Grider’s
mother suggesting that Grider’s criminal history was a result of “the environment
in which lives” but determined that much of Grider’s past conduct was not
excusable simply based upon environmental factors. We therefore find that the
district court’s denial of Grider’s request for a variance and imposition of a 30-
month sentence were reasonable light of the facts and circumstances of this case.
AFFIRMED.
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