United States v. Moses Pennic, III

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
------------------------------------------- ELEVENTH CIRCUIT
April 24, 2008
No. 07-13378
THOMAS K. KAHN
Non-Argument Calendar
CLERK
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D.C. Docket No. 06-00014-CR-W-N
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MOSES PENNIC, III,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Alabama
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(April 24, 2008)
Before EDMONDSON, Chief Judge, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
Defendant-Appellant Moses Pennic, III, appeals his sentence of 12 months
and one day for possession with intent to distribute cocaine and marijuana, 21
U.S.C. § 841(a)(1).1 No reversible error has been shown; we affirm.
Pennic first challenges the enhancement to his sentence pursuant to
U.S.S.G. § 2D1.1(b)(1) for possessing a firearm during the commission of his
offense. “For sentencing purposes, possession of a firearm involves a factual
finding, which we review for clear error. United States v. Stallings, 463 F.3d
1218, 1220 (11th Cir. 2006), cert. denied, 127 S.Ct. 2446 (2007).2 If a defendant
possessed a weapon during a drug trafficking offense, a two-level increase is
warranted. U.S.S.G. § 2D1.1(b)(1). “The adjustment should be applied if the
weapon was present, unless it is clearly improbable that the weapon was
connected with the offense.” U.S.S.G. § 2D1.1, comment. (n.3). The government
has the burden of demonstrating the proximity of the weapon to the site of the
charged offense by preponderance of the evidence. United States v. Audain, 254
F.3d 1286, 1289 (11th Cir. 2001). If the government meets its burden, the burden
1
Pennic also was charged with carrying a firearm during a drug trafficking offense, 18 U.S.C. §
924(c); but the district court later dismissed this count on the government’s motion based on
Pennic’s guilty plea and cooperation.
2
At the outset, we note that we address the merits of Pennic’s appeal even though his plea
agreement contained a sentence appeal waiver. The government has not raised the issue of waiver,
but instead, has addressed the merits of the appeal. And the application of the waiver is not outcome
determinative. See United States v. Valnor, 451 F.3d 744, 745 n.1 (11th Cir. 2006).
2
shifts to the defendant to demonstrate that a connection between the weapon and
the offense was clearly improbable. Id.Here, the district court properly applied the firearm enhancement to
Pennic’s sentence. The government demonstrated -- and Pennic admitted -- that a
gun was present in his car in the same area where drugs and drug paraphernalia
were discovered during a routine traffic stop. See United States v. Shelton, 400
F.3d 1325, 1330 (11th Cir. 2005) (concluding that a fact is deemed admitted when
a defendant fails to object to a factual statement in the presentence investigation
report). The government was not required to prove that the gun was used to aid in
the offense or that its possession was illegal. See Audain, 254 F.3d at 1289. And
Pennic failed to meet his burden of demonstrating that a connection between the
gun and the drugs clearly was improbable. For the district court to apply the
section 2D1.1(b)(1) enhancement to Pennic’s sentence was not clearly erroneous.3
We now turn to Pennic’s argument that his sentence is unreasonable
because the district court did not consider sufficiently his post-arrest drug
3
Pennic’s reliance on Stallings, where we vacated a district court’s application of a section
2D1.1(b)(1) enhancement because the government provided no evidence that guns discovered in
defendant’s home -- where no activities about the drug conspiracy took place -- belonged to him or
were connected to the conspiracy, is misplaced. See 463 F.3d at 1221. Here, Pennic produced proof
of his ownership of the gun, and the gun was discovered next to the drugs. We also reject Pennic’s
argument that the dismissal of the section 924(c) charge militates against application of the
enhancement because a higher standard of proof is required to sustain a section 924(c) conviction
than a section 2D1.1(b)(1) enhancement.
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rehabilitation. We review his sentence for reasonableness in the light of the
factors set out in section 18 U.S.C. § 3553(a). United States v. Winingear,
422 F.3d 1241, 1244-46 (11th Cir. 2005).4 Under section 3553(a), a district court
should consider, among other things, the nature and circumstances of the offense,
the history and characteristics of the defendant, the need for adequate deterrence,
protection of the public, and just punishment, policy statements of the Sentencing
Commission, provision for the medical, educational, and corrective needs of the
defendant, and the need to avoid unwarranted sentencing disparities. See 18
U.S.C. § 3553(a)(1)-(7). “[T]he party who challenges the sentence bears the
burden of establishing that the sentence is unreasonable in the light of both [the]
record and the factors in section 3553(a).” United States v. Talley, 431 F.3d 784,
788 (11th Cir. 2005).
We conclude that Pennic’s sentence is reasonable. The district court
correctly calculated the Guidelines range as 8 to 14 months5 and sentenced Pennic
to the upper end of that range, but well below the 20-year statutory maximum. See
21 U.S.C. § 841(b)(1)(C); Talley, 431 F.3d at 788 (noting that “ordinarily we
4
In addition, reasonableness review employs an abuse-of-discretion standard. Gall v. United
States, 128 S.Ct. 586, 597 (2007).
5
After calculating the Guidelines range, the district court granted the government’s motion for
a two-level downward departure based on Pennic’s cooperation, U.S.S.G. § 5K1.1.
4
would expect a sentence within the Guidelines range to be reasonable”);
Winingear, 422 F.3d at 1246 (comparing, as one indication of reasonableness, the
actual prison term imposed against the statutory maximum). The district court
also considered the section 3553(a) factors in determining Pennic’s sentence; the
court specifically balanced the seriousness of Pennic’s offense and the need to
impose appropriate punishment against Pennic’s commendable drug rehabilitation,
educational, and family endeavors.6 See § 3553(a)(1), (2)(A), (D). The district
court’s statement of reasons was sufficient. See United States v. Rita, 127 S.Ct.
2456, 2468-69 (2007) (a lengthy explanation is not necessarily required when a
judge decides to follow the Guidelines in a particular case, especially where a
sentencing judge has listened to the arguments of the parties, considered the
supporting evidence, and was aware of the special conditions of the defendant).
And the weight given to a section 3553(a) factor is within the sound discretion of
the district court; “[w]e will not substitute our judgment in weighing the relevant
factors.” United States v. Williams, 456 F.3d 1353, 1363 (11th Cir. 2006), cert.
dismissed, 127 S.Ct. 3040 (2007), abrogated in part on different grounds by
Kimbrough v. United States, 128 S.Ct. 558 (2007).
6
In fact, the court noted that, based on testimony about Pennic’s rehabilitation efforts, it imposed
a lower sentence than it otherwise would have. Thus, Pennic’s argument that the court did not
sufficiently consider this factor is belied by the record.
5
Based on the factors outlined in section 3553(a) and our review of the
record, we conclude that Pennic has not carried his burden of showing that his
sentence was unreasonable.
AFFIRMED.
6