United States v. Paiva ( 2023 )

Case: 23-50239 Document: 00516976789 Page: 1 Date Filed: 11/22/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 23-50239 November 22, 2023
Summary Calendar Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Kenneth Paiva,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:22-CR-243-1
______________________________
Before Jones, Southwick, and Ho, Circuit Judges.
Per Curiam: *
Kenneth Paiva appeals his conviction and sentence following his guilty
plea to one count of possession of a firearm by a convicted felon. First, Paiva
argues that his above-guidelines, 180-month sentence is substantively
unreasonable because it represents a clear error of judgment in balancing the
18 U.S.C. § 3553(a) sentencing factors. He contends that the district court
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-50239
did not give weight to his personal history, but put undue weight on his
criminal history, the seriousness of the offense of conviction, and the value
of incarceration for deterrence.
We review the substantive reasonableness of a sentence for an abuse
of discretion. See United States v. Diehl, 775 F.3d 714, 723 (5th Cir. 2015). In
doing so, we consider the “totality of the circumstances, including the extent
of any variance from the Guidelines range . . . to determine whether, as a
matter of substance, the sentencing factors in [§] 3553(a) support the
sentence.” United States v. Gerezano-Rosales, 692 F.3d 393, 400 (5th Cir.
2012) (internal quotation marks and citations omitted). A non-guidelines
sentence such as Paiva’s unreasonably fails to reflect the § 3553(a) factors if
it “(1) does not account for a factor that should have received significant
weight, (2) gives significant weight to an irrelevant or improper factor, or
(3) represents a clear error of judgment in balancing the sentencing factors.”
Diehl, 775 F.3d at 724.
Here, Paiva fails to show that his 180-month sentence represents a
clear error of judgment in balancing the sentencing factors. See id. The
record demonstrates that the district court considered Paiva’s history and
characteristics. See § 3553(a)(1). Nonetheless, the district court chose to
give greater weight to the need for Paiva’s sentence to “reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense,” “afford adequate deterrence to criminal
conduct, and “protect the public from further crimes of the defendant.”
§ 3553(a)(2)(A)-(C). The district court’s rationale for doing so is clear from
the record. The district court was free to consider Paiva’s criminal history
although it was already factored into the guidelines calculation. See United
States v. Key, 599 F.3d 469, 475 (5th Cir. 2010). Paiva’s argument essentially
asks this court to reweigh the § 3553(a) factors and substitute its own
judgment on appeal, which we will not do. See United States v. Hernandez,
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No. 23-50239
876 F.3d 161, 167 (5th Cir. 2017). We have affirmed greater upward variances
as substantively reasonable. See, e.g., Key, 599 F.3d at 475-76.
Paiva further argues that 18 U.S.C. § 922(g)(1) is unconstitutional in
light of United States v. Lopez, 514 U.S. 549 (1995), because it exceeds
Congress’s power under the Commerce Clause. He is correct that his
argument is foreclosed by circuit precedent. See United States v. Alcantar,
733 F.3d 143 (5th Cir. 2013). Accordingly, the judgment of the district court
is AFFIRMED.
We agree with Paiva that there is a clerical error in the written
judgment. The district court orally pronounced that Paiva’s sentence will
run concurrently to any sentence that issues from the matter pending in Ector
County, Texas. However, the written judgment states that Paiva’s sentence
shall run consecutively to any such sentence. Accordingly, this matter is
REMANDED for the limited purpose of correcting the clerical error in the
judgment. See Fed. R. Crim. P. 36; United States v. McAfee, 832 F.2d 944,
946 (5th Cir. 1987).
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