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Case Law - save on Lexis / WestLaw. United States Court of Appeals Fifth Circuit F I L E D April 27, 2004 In the Charles R. Fulbruge III United States Court of Appeals Clerk for the Fifth Circuit _______________ m 03-20059 _______________ UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS JOSEPH LELAND EVERIST, Defendant-Appellant. _________________________ Appeal from the United States District Court for the Southern District of Texas m H-00-CR-689-ALL _________________________ Before GARWOOD, HIGGINBOTHAM, and or foreign commerce, or possess in or affect- SMITH, Circuit Judges. ing commerce, any firearm or ammunition; or to receive any firearm or ammunition; or to re- JERRY E. SMITH, Circuit Judge: ceive any firearm or ammunition which has been shipped or transported in interstate or Joseph Everist was charged with being a foreign commerce." felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Sec- Everist was a felon, having been convicted tion 922(g)(1) makes it unlawful, inter alia, and sentenced to more than a year's impris- for a person who has been convicted of a onment for bank robberies. He possessed five crime punishable by more than one year's im- firearms, several of which moved in interstate prisonment to "ship or transport in interstate commerce in satisfaction of § 922(g)(1)'s jur- isdictional requirement. He was convicted and zens. See id. (noting that "it is clear that fel- sentenced to 180 months in prison. ons, infants and those of unsound mind may be prohibited from possessing firearms"). Ac- Everist requested that this sentence be cordingly, § 922(g)(1) represents a limited and served wholly concurrently with a standing narrowly tailored exception to the freedom to 300-month sentence for the bank robberies. possess firearms, reasonable in its purposes The district court allowed 60 months of the and consistent with the right to bear arms pro- sentence to be served concurrently, the re- tected under the Second Amendment.1 Ever- maining 120 consecutively. Everist challenges ist's constitutional challenge to § 922(g)(1) his conviction under § 992(g)(1) and the fails.2 district court's manner of applying his partially concurrent sentence. Everist asserts other constitutional theories respecting § 922(g)(1). He argues that the I. provision was enacted in excess of Congress's Everist makes a facial constitutional chal- power under the Commerce Clause. That the- lenge to § 922(g)(1), arguing that the felon ory is foreclosed under Fifth Circuit precedent firearm possession statute deprives him of the but is preserved for further review.3 Everist's constitutional right to keep and bear arms. In other theories, resting variously on the Tenth United States v. Emerson, 270 F.3d 203, 260 Amendment and Equal Protection Clauses, are (5th Cir. 2001), we held that the Second meritless. Amendment "protects the rights of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their 1 own firearms . . . ." We need not decide whether the Second Amendment's boundaries are properly defined through strict scrutiny analysis, though it remains The Second Amendment right is subject to certain that the federal government may not re- "limited narrowly tailored specific exceptions strain the freedom to bear arms based on mere or restrictions for particular cases that are rea- whimsy or convenience. See Emerson, 270 F.3d at sonable and not inconsistent with the right of 261. Americans generally to individually keep and bear their private arms as historically under- 2 Other circuits, as well, have rejected consti- stood in this country." Id. at 261. It is not in- tutional challenges to § 922(g)(1). See, e.g., Unit- consistent with the Second Amendment to lim- ed States v. Price, 328 F.3d 958, 961 (7th Cir. it the ability of convicted felons to keep and 2003); United States v. Boer, 235 F.3d 561, 564 possess firearms. (10th Cir. 2000); Gillespie v. City of Indianapolis, 185 F.3d 693, 710 (7th Cir. 1999); United States Irrespective of whether his offense was vio- v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974). lent in nature, a felon has shown manifest dis- 3 See United States v. Daugherty, 264 F.3d regard for the rights of others. He may not 513, 518 (5th Cir. 2001); United States v. Gresh- justly complain of the limitation on his liberty am, 118 F.3d 258, 264-65 (5th Cir. 1997); United when his possession of firearms would other- States v. Kuban, 94 F.3d 971, 973 (5th Cir. 1996); wise threaten the security of his fellow citi- United States v. Rawls, 85 F.3d 240, 242-43 (5th Cir. 1996). 2 II. tors enumerated in § 3553(a).4 Section Everist contends that the district court act- ed improperly in sentencing him to a partially concurrent sentence of 180 months for his vio- 4 At all times pertinent to this case, § 3553(a) lation of the felon firearm possession statute. provided: At the sentencing hearing, Everist requested that his sentence run concurrently with the The court, in determining the particular sen- 300-month sentence he was serving for bank tence to be imposed, shall considerSS robbery. After hearing Everist's reason, the district court allowed only 60 months to run (1) the nature and circumstances of the offense and the history and characteristics of the de- concurrently. Everist does not dispute the fendant; calculation of the 180-month sentencethe court properly relied on the sentencing (2) the need for the sentence imposedSS guidelines and the presentence report. Rather, Everist asserts that the court failed to abide by (A) to reflect the seriousness of the of- 18 U.S.C. § 3553(c)'s requirement that a court fense, to promote respect for the law, and weigh appropriate factors and explain its rea- to provide just punishment for the offense; soning in open court when a defendant re- quests a concurrent sentence. (B) to afford adequate deterrence to crim- inal conduct; We generally review the imposition of a consecutive sentence only for abuse of discre- (C) to protect the public from further tion, if the court relied on permissible factors. crimes of the defendant; and We review de novo the court's obedience to (D) to provide the defendant with needed the sentencing guidelines and § 3553(c). Be- educational or vocational training, medical cause Everist did not object to the court's im- care, or other correctional treatment in the plementation of § 3553(c) during the sentenc- most effective manner; ing proceeding, we review this discrete issue for plain error. See United States v. Henry, (3) the kinds of sentences available; 288 F.3d 657, 664 (5th Cir. 2002); United States v. Londono, 285 F.3d 348, 355 (5th Cir. (4) the kinds of sentence and the sentencing 2002). We will correct plain error only if it range established for - seriously affects the fairness, integrity, or pub- lic reputation of judicial proceedings. United (A) the applicable category of offense States v. Ravitch, 128 F.3d 865, 869 (5th Cir. committed by the applicable category of 1997). defendant as set forth in the guidelines . . .; or Section 3553(c) governs a court's consider- (B) in the case of a violation of probation ation of the sentence and explanation for its or supervised release, the applicable guide- reasoning. With respect to the imposition of lines . . . concurrent or consecutive sentences, the stat- ute requires the court to rely on allowable fac- (5) any pertinent policy statement issued by the Sentencing Commission pursuant to 28 U.S.C. (continued...) 3 3553(c) requires the court to state in open factors." United States v. Izaguirre-Losoya, court the reasons for its imposition of a partic- 219 F.3d 437, 440 (5th Cir. 2000). It is suffi- ular sentence. cient that "the proceedings imply consideration of the § 3553(a) factors." Id. The court The district court amply fulfilled its obliga- already had made plain its view of the severity tions under § 3553(c) with respect to the cal- of Everist's conduct when it discussed the pre- culation of the 180-month sentence. It relied sentence report and the manner of the sentence on and explained the presentence report and calculation. Because the seriousness of the of- why it believe the 180-month sentence was ap- fense was an important and allowable element propriate, given the magnitude of the offense. under § 3553(a), the court's statements imply consideration of relevant factors under the statute. Nothing in the record indicates disre- The court gave a much more truncated ex- gard for the permissible factors under planation, however, when, after hearing argu- § 3553(a), so there is no plain error. ments from both sides, it denied Everist's re- quest for a wholly concurrent sentence. The Nor did the court commit plain error in fail- court revealed its reasoning only via a state- ing to state its reasons for assigning Everist a ment during Everist's attorney's arguments for partially concurrent sentence. Although it a fully concurrent sentence. When counsel would have been better, given the purposes of said that Everist had acquired his collection of § 3553(c), if the court had carefully explained guns because he "loves to hunt," the court in- its full reasoning, the court already, and at terjected that "[h]e also loves to commit rob- length, had explained its displeasure with the beries." Nonetheless, we are confident that severity of Everist's conduct and had noted the court did not commit plain error either by especially his recidivism as respects bank rob- failing to consider appropriate factors for the beries. imposition of a partially concurrent sentence under § 3553(c) or by failing to communicate Everist and his counsel, when presented its reasoning in open court. with the fact that only sixty months of his sen- tence were designated as concurrent, should As this court has noted, other circuits re- have been neither surprised nor puzzled. In quire "little more" than "that the record merely fact, the court was more lenient than it was re- not evidence a disregard for the § 3553(a) quired to be, by assigning any amount of the sentence as concurrent. And again, neither Everist nor his counsel had questions concern- 4(...continued) ing the imposition of the partially consecutive 994(a)(2) that is in effect on the date the sentence. There was no plain error. defendant is sentenced; Even if there were plain error, the sentence (6) the need to avoid unwarranted sentence dis- does not undermine the fairness, integrity, or parities among defendants with similar records reputation of judicial proceedings. Because who have been found guilty of similar conduct; Everist had a chance to inquire further of the and court's reasoning, we cannot say that his op- (7) the need to provide restitution to any victims portunity to understand his sentence was of the offense. 4 otherwise diminished by the manner in which the court conducted the proceedings. AFFIRMED. 5 |
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