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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-14605
Non-Argument Calendar
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D.C. Docket No. 3:16-cr-00544-WKW-GMB-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LEMUEL GAY,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Alabama
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(August 21, 2018)
Before JORDAN, BRANCH, and FAY, Circuit Judges.
PER CURIAM:
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Lemuel Gay pled guilty to being a felon in possession of a firearm and
ammunition, see
18 U.S.C. § 922(g)(1), and was sentenced to 84 months’
imprisonment. He challenges only his sentence, arguing that the district court
erred in calculating the advisory guideline range and in imposing a substantively
unreasonable sentence.
Mr. Gay’s appeal raises a question of first impression in our circuit: Does
U.S.S.G. § 2K2.1(b)(6)(B)—which provides a four-level enhancement when a
defendant “used or possessed any firearm or ammunition in connection with
another felony offense”—apply when that “felony offense” is only potential and
had not actually occurred? Several of our sister circuits have concluded that
§ 2K2.1(b)(6)(B) does apply in such a circumstance. See United States v. Noster,
590 F.3d 624, 635–36 (9th Cir. 2009) (holding that the enhancement applies so
long as the defendant “formed a firm intent to use gun for a felonious purpose” and
that the “plan to commit the felony need not be fully developed”) (quoting United
States v. Jimison,
493 F.3d 1148, 1149 (9th Cir. 2007)); United States v.
Fredrickson,
195 F.3d 438, 440 (8th Cir. 1999) (noting that the guideline provision
“does not require the actual commission of another felony offense”); United States
v. Dodge,
61 F.3d 142, 146 (2d Cir. 1995) (holding that the enhancement, then
codified as § 2K2.1(b)(5), “does not require knowledge of the specific offense to
be committed . . . nor does it require that the defendant be convicted of another
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felony offense”). At sentencing, the district court recognized the lack of authority
in our circuit, but held that the four-level enhancement § 2K2.1(b)(6)(B) applied to
potential felony offenses—here, a potential assault or other felony given Mr. Gay’s
statement to police that he brought two guns to “settle” a dispute. See D.E. 49 at
14.
Whether § 2K2.1(b)(6)(B) applies to potential offenses is an important issue
that we should address in a published opinion in the appropriate case, but we need
not resolve it here. Nor, assuming it applies, do we decide whether there was
sufficient evidence of a potential offense in this case. Those issues are
“unnecessary for us to decide . . . [because] . . . a decision either way will not
affect the outcome of this case. We know it will not because the district court told
us that the enhancement made no difference to the sentence it imposed.” United
States v. Keene,
470 F.3d 1347, 1348 (11th Cir. 2006). As the district court stated,
Mr. Gay’s 84-month sentence “would have been given had the four-level [ ]
objection been sustained.” D.E. 49 at 27. See also id. at 14 (“[T]he sentence that I
give him [ ] is a reasonable, I believe, sentence irrespective of whether these four
levels applied.”).
Given the district court’s statements that it would have imposed the same
sentence, we need only determine whether Mr. Gay’s sentence is reasonable. “In
determining whether it is reasonable we must assume that there was a guidelines
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error—that the guidelines issue should have been decided in the way the defendant
argued and the advisory range reduced accordingly—and then ask whether the
final sentence resulting from consideration of the § 3553(a) factors would still be
reasonable.” Keene,
470 F.3d at 1349. Under our abuse of discretion standard, see
Gall v. United States,
552 U.S. 38, 46 (2007), we affirm.
Assuming the enhancement should not have applied, Mr. Gay’s advisory
guideline range would have been 46 to 57 months, so his 84-month sentence
amounted to an upward variance of 27 months. On this record, we conclude that
the district court’s “justification for the variance [was] sufficiently compelling to
support the degree of variance.” United States v. Moran,
778 F.3d 942, 983 (11th
Cir. 2015) (quotation omitted).
The district court explained its application of the § 3553(a) factors at length.
Specifically, it took into account Mr. Gay’s serious criminal history—which
includes two counts of attempted murder for “shooting people in an occupied
vehicle,” D.E. 49 at 27—and noted that Mr. Gay continued to make poor choices
for the instant offense by “get[ting] two guns” and being involved in a fight, id. at
23. The district court also explained that the sentence would promote respect for
the law due to Mr. Gay’s repeated disciplinary violations while in prison, id. at 27,
and would also promote public safety, id. at 24. The district court’s concern for
the seriousness of Mr. Gay’s criminal history, his propensity for recidivism, and
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public safety sufficiently justify the upward variance of 27 months. See, e.g.,
Moran, 778 F.3d at 983–84 (affirming upward variance where district court
determined that the defendant’s criminal history category understated the
seriousness of his criminal history); United States v. Martinez-Gonzalez,
663 F.3d
1305, 1311 (11th Cir. 2011) (affirming reasonableness of sentence because the
district court found defendant’s “history of arrests and convictions was compelling
evidence of his propensity to recidivate”) (alterations adopted).
Mr. Gay contends that the district court did not adequately consider his
troubled upbringing and young age. To the contrary, the district court explicitly
considered these factors and took them into account by fashioning a partially
concurrent sentence (to his state attempted murder charges) to ensure that Mr. Gay
would not be in prison beyond 2030. See D.E. 49 at 25–26 (explaining decision to
run sentence partially concurrent as permitted by § 5G1.3). See also id. at 27
(“I’ve also taken into consideration your upbringing and background.”). The
district court’s decision to weigh the seriousness of Mr. Gay’s criminal conduct
and public safety more heavily than these mitigating factors was well within its
discretion. See United States v. Dougherty,
754 F.3d 1353, 1361 (11th Cir. 2014)
(“The district court must evaluate all of the § 3553(a) factors, but it may attach
great weight to one factor over others.”); United States v. Amedeo,
487 F.3d 823,
832 (11th Cir. 2007) (“The weight to be accorded any given § 3553(a) factor is a
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matter committed to the sound discretion of the district court, and we will not
substitute our judgment in weighing the relevant factors.”) (alterations adopted).
For the foregoing reasons, we affirm Mr. Gay’s sentence.
AFFIRMED.
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