United States v. Jamie Vincent Ward

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-14839
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-00007-MW-GRJ-1
UNITED STATES OF AMERICA,
Plaintiff -Appellee,
versus
JAMIE VINCENT WARD,
Defendant -Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(July 7, 2016)
Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Jamie Ward appeals the 84-month sentence he received after pleading guilty
to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)
and 924(a)(2). Mr. Ward argues that his sentence was procedurally unreasonable
because the district court erred in considering a non-existent two-level
enhancement for possession of a fully-automatic weapon.
Upon review of the record and consideration of the parties’ briefs, we affirm
Mr. Ward’s sentence.
I
Mr. Ward was the “Grand Dragon” of the Florida-Georgia branch of the
Traditionalist American Knights of the Ku Klux Klan. It was in this role that he
met a government confidential informant who was also a member of that group.
Mr. Ward informed the CI that he possessed a shotgun, a pistol, and a .22-caliber
rifle. Mr. Ward gave the CI his rifle and instructed him to make it operate as a fully
automatic weapon. One month after Mr. Ward made this request, he was arrested
in his home by federal agents. During the arrest the agents recovered a 9mm pistol,
.22-caliber ammunition, and 12-gauge shotgun shells.
Mr. Ward was charged by superseding indictment with two counts of being a
felon in possession of a firearm and pled guilty to both counts. The presentence
investigation report set a base level offense of 22 because Mr. Ward possessed a
semi-automatic firearm capable of accepting a large magazine and had a prior
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conviction for a crime of violence. Mr. Ward also received a two-level
enhancement for possessing three firearms. After receiving a three-level reduction
for early acceptance of responsibility, his resulting offense level was 21. Based on
an offense level of 21 and a criminal history category of IV, Mr. Ward’s advisory
guideline range was 57-71 months’ imprisonment. Mr. Ward filed an objection to
the two-level enhancement for the possession of three firearms because no shotgun
was recovered or seen in his home. He also filed a memorandum concerning his
background.
The district court held an evidentiary sentencing hearing to resolve the
objection over the enhancement for the third firearm. In support of the
enhancement, the government introduced evidence that Mr. Ward made two
admissions to the CI that he possessed a shotgun, that there was (a) a box of
shotgun ammunition, and (b) a gun cleaning kit that included accessories for
cleaning a shotgun recovered from Mr. Ward’s home. Mr. Ward, his mother, and
his sister testified for the defense. All three testified that Mr. Ward had never
owned or been in possession of a shotgun. His mother explained that the shotgun
ammunition had come from her because she was a packrat and never threw
anything away. She and her daughter both claimed to have never seen any firearms
in his home.
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The district court found the government’s evidence credible and the defense
evidence not credible, noting that the witnesses called on Mr. Ward’s behalf both
testified that they had never seen a firearm in the home. This testimony was
contrary to the evidence presented by the government, which included a photo of
the pistol clearly displayed on an entertainment console in the living room. The
district court found that Mr. Ward’s possession of a third firearm had been proven
by a preponderance of evidence and overruled the objection.
Before it sentenced Mr. Ward, the district court stated that it could have
increased Mr. Ward’s sentence level by two levels because he attempted to possess
a fully-automatic weapon. Both the government and Mr. Ward agreed with the
proposition that this enhancement would have increased the advisory guideline
range to 70-87 months. The district court also stated that it believed Mr. Ward had
committed perjury by testifying falsely concerning the shotgun, and that false
testimony would also lead to an additional two-level enhancement. The district
court advised that if it took both of those developments into consideration, Mr.
Ward’s advisory guideline range would have been from 84-105 months’
imprisonment.
The district court stated that it was not going to apply the enhanced
guidelines, but was going to sentence Mr. Ward to 84 months, an upward variance
from the 57-71 month range. In so doing, the district court took into account
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mitigating factors, such as Mr. Ward receiving his GED, that Mr. Ward appeared
to be a loving and good father, and that Mr. Ward had not gone on a crime spree
after absconding from probation in Georgia. The district court also considered the
aggravating factors. Mr. Ward was arrested while absconding from a ten–year
probation sentence in Georgia, and had previously served only five years of a ten–
year prison sentence. The district court also took into account that Mr. Ward was
less than candid in his testimony at the hearing. The district court noted that this
was not a typical felon–in–possession case. Mr. Ward had multiple firearms, and
sought to have one of them converted into a fully automatic weapon. The district
court also found troubling Mr. Ward’s association with people who have the
propensity to do violence. Mr. Ward associated with a group of men within his
KKK chapter who conspired to and successfully committed a murder. The district
court acknowledged that Mr. Ward was not a part of that group, and that he had no
role in the murder, but that his associations with those individuals in that capacity
and his knowledge of the murder also weighed in favor of an upward variance.
In weighing all of the circumstances, the district court sentenced Mr. Ward
to 84 months’ imprisonment, to be followed by two years of supervised release.
The district court expressly stated that this was an upward variance from the 57-71
month guideline range, and not an application of what it believed to be the possible
enhanced guidelines.
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II
Mr. Ward argues that the district court erred in sentencing him to 84 months’
imprisonment. He asserts that the district court wrongfully applied a non-existent
two level enhancement to his sentence for his attempting to possess a fully
automatic firearm and that he was sentenced in accordance with an incorrect set of
guidelines. We do not agree.
We review the reasonableness of a sentence under the deferential abuse-of-
discretion standard. See Gall v. United States, 552 U.S. 38, 41 (2007). In
conducting our analysis, we first ensure that the district court committed no
significant procedural error, such as improperly calculating the guideline range.
See id. at 51. If a guideline error did not affect the ultimate sentence imposed, it is
not necessary to decide procedural guideline issues or remand the case for new
sentencing proceedings. United States v. Keene, 470 F.3d 1347, 1349 (11th Cir.
2006). We look to see if, assuming a guidelines error, “the final sentence resulting
from the consideration the 18 U.S.C. § 3553(a) factors would still be reasonable.”
Id. If the district court states that its resolution of a guidelines issue has no bearing
on the sentence, that is all we need to know, so long as the district court’s sentence
was substantively reasonable. Id.
We examine whether a sentence was substantively reasonable in light of the
totality of the circumstances. See Gall, 552 U.S. at 51. The district court must
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impose a sentence consistent with the factors in 18 U.S.C. § 3553(a)(2). The
district court must consider nature and circumstance of the offense, the history and
character of the defendant, availability of various sentences, applicable guideline
range, and the pertinent policy statements of the Sentencing Commission. See §
3553(a)(1), (3)-(7). The weight given to any specific § 3553(a) factor is reviewed
for an abuse of discretion. See United States v. Clay, 483 F.3d 739, 743 (11th Cir.
2007).
The district court did not err in sentencing Mr. Ward to 84 months’
imprisonment followed by two years of supervised release. The district court’s
comments during the sentencing hearing concerning possible additional levels for
attempting to possess a fully automatic firearm did not amount to the application of
the incorrect guideline range. The district court stated clearly that it was varying up
from the guideline range of 51-71 months, and used the other possible
enhancements as a guide to determine the appropriate variance.
Having established that there was no issue with the application of the
guidelines, we now look to see if the sentence was substantively reasonable. See
Keene, 470 F.3d at 1349. In announcing Mr. Ward’s sentence the district court
stated that this was not an everyday felon–in–possession case. It considered that
Mr. Ward had previously served only five years of a ten-year sentence, that he was
currently on probation in Georgia, that he attempted conversion of a firearm to
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fully automatic, and that he was closely associated with a group of men who he
knew had conspired to commit murder. It then balanced those factors against the
mitigating factors and expressly stated that the sentence was the result of
considering the § 3553(a) factors. We cannot conclude that the district court
abused its discretion in imposing an 84-month sentence on Mr. Ward. See Clay,
483 F.3d at 743.
III
We affirm Mr. Ward’s sentence.
AFFIRMED.
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