           Case: 16-16963    Date Filed: 09/25/2017   Page: 1 of 9


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 16-16963
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 6:16-cr-00013-GKS-GJK-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

AIRAMIS J. WILLIAMS,
a.k.a. Demp,

                                                          Defendant-Appellant.

                       ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (September 25, 2017)

Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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      On January 20, 2016, a sealed indictment was returned against Airamis J.

Williams for possession of a firearm, a Davis Industries .22 caliber revolver, by a

convicted felon in violation of 18 U.S.C. § 922(g)(1). He was arraigned on April

11, 2016 following his arrest, and pled guilty to the charge on July 11, 2016. The

District Court subsequently sentenced Williams to prison for 110 months, a

sentence below the Guidelines sentence range. He appeals the sentence on the

grounds (1) that the District Court erred in enhancing his base offense levels under

U.S.S.G. § 2K2.1(b)(1)(A) for possession of three firearms and under U.S.S.G.

§ 2K2.1(b)(4)(A) because one of the firearms was stolen; (2) that his sentence is

procedurally and substantively unreasonable; and (3) that § 922(g) is

unconstitutional facially and as applied. We affirm.

                                         I.

      These are the events that led to Williams’ indictment and sentence. In June

2015, a confidential informant (“CI”) entered Williams’ residence to purchase

marijuana and a gun. Williams offered to sell him a .380 caliber revolver and a

pocket-sized pistol, but the CI wanted a Davis Industries .22 caliber revolver,

which Williams did not have at the moment. The CI returned a week later and

observed a bag of marijuana and a .357 caliber revolver on Williams’ kitchen

counter. The CI bought an ounce of the marijuana and left. The CI went back the




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next week intending to buy the .357 revolver and marijuana. He observed several

pounds of marijuana, bought an ounce and left.

      On July 30, 2015, based on the CI’s report of seeing large quantities of

cocaine, marijuana, other drugs and a number of firearms at Williams’s residence,

the Orange County Sheriff’s office went there with a search warrant and seized

drugs and a Springfield Armory .40 caliber pistol. The pistol had been reported

stolen in 2014.

      On March 6, 2016, several weeks following Williams’ indictment but prior

to his arrest, the Orlando police, acting on a tip that Williams was selling drugs

from a new residence he was occupying, executed a search warrant and seized

drugs and a loaded Springfield Armory .45 caliber pistol.

                                          II.

      U.S.S.G. § 2K2.1(b)(1)(A) provides for a two-level increase of the base

offense level if the defendant possessed three to seven firearms. Only firearms

such as those depicted above, that were “unlawfully sought to be obtained,

unlawfully possessed, or unlawfully distributed” are counted under § 2K2.1(b)

(emphasis added). U.S.S.G. § 2K2.1(b)(1), comment., n.5. Under U.S.S.G. §

1B1.3(a), specific offense characteristics are determined based on all acts and

omissions by the defendant in relation to the subject offense, here a violation of 18

U.S.C. § 922(g). For firearm-related offenses falling under § 2K2.1, relevant


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conduct includes all acts and omissions that were part of “the same course of

conduct or common scheme or plan as the offense of conviction,” i.e., 18 U.S.C. §

922(g) in this case. U.S.S.G. § 1B1.3(a)(2). For multiple events, such as those

depicted in Part I above, to form a common scheme or plan, they must be

“substantially connected to each other by at least one common factor, such as . . .

[a] common purpose, or similar modus operandi.” U.S.S.G. § 1B1.3, comment.,

n.5(B)(i). In evaluating whether multiple firearm possessions meet this test, a

sentencing court considers “the degree of similarity of the offenses, the regularity

(repetitions) of the offenses, and time intervals between the offenses.” United

States v. Fuentes, 107 F.3d 1515, 1525 (11th Cir. 1997) (quoting U.S.S.G. § 1B1.3,

comment., n.9(B)) .

      As for “similarity,” Williams possessed all three firearms as a felon in

possession in violation of § 922(g). As to regularity, as the presentence

investigation report (“PSI”) indicates, Williams regularly sold drugs and firearms

out of his residence. Regarding temporal proximity, less than two months passed

between the possession of the first firearm on June 9, 2015, and the second firearm

on July 30, 2015. The nine-month interval between the first and last possession on

March 6, 2016, is longer, but not so long as to warrant a conclusion that the last

possession was separate from the first possession. The Court’s finding, albeit




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implicit, that Williams possessed the three guns in the same course of conduct does

not amount to clear error.

      Section 2K2.1(b)(4)(A) provides for a two-level enhancement if the firearm

was stolen. We find no clear error in the Court’s application of the enhancement

because the PSI established that the Springfield Armory .40 caliber pistol was

stolen.

                                          II.

      Williams argues that his sentence is procedurally and substantively

unreasonable. We review a sentence for reasonableness, which “merely asks

whether the trial court abused its discretion.” Rita v. United States, 551 U.S. 338,

351 (2007). The first step in reviewing the reasonableness of a sentence is to

assess whether the sentence is procedurally reasonable. Gall v. United States, 552

U.S. 38, 51 (2007). We determine whether “the district court committed no

significant procedural error, such as failing to calculate (or improperly calculating)

the Guidelines range, treating the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing

to adequately explain the chosen sentence—including an explanation for any

deviation from the Guidelines range.” Id.

      As to the court’s explanation for the sentence, the court “should set forth

enough to satisfy the appellate court that [it] has considered the parties’ arguments


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and has a reasoned basis for exercising [its] own legal decisionmaking authority.”

United States v. Agbai, 497 F.3d 1226, 1230 (11th Cir. 2007) (quotation omitted).

In a case such as this one, where the District Court imposes a sentence within the

Guidelines sentence range, “doing so will not necessarily require lengthy

explanation.” Rita, 551 U.S. at 356. Moreover, when a district court considers the

18 U.S.C. § 3553(a) factors, it need not state on the record that it has explicitly

considered each of the § 3553(a) factors, or discuss the role that each played in the

sentencing decision. United States v. Docampo, 573 F.3d 1091, 1100 (11th Cir.

2009). “[A]n acknowledgment by the district court that it has considered the

defendant’s arguments and the factors in section 3553(a) is sufficient.” Id.

(quoting United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (per curiam)).

      Substantive reasonableness review seeks to evaluate “whether the sentence

imposed by the district court fails to achieve the purposes of sentencing as stated in

section 3553(a).” Talley, 431 F.3d at 788. The court must impose a sentence

“sufficient, but not greater than necessary to comply with the purposes” listed in §

3553(a)(2), including the need to reflect the seriousness of the offense, deter

criminal conduct, and protect the public from the defendant’s future criminal

conduct. See 18 U.S.C. § 3553(a)(2)(A)–(D). In imposing a particular sentence,

the court must also consider the nature and circumstances of the offense, the

history and characteristics of the defendant, the kinds of sentences available, the


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applicable guidelines range, pertinent policy statements, the need to avoid

unwarranted sentencing disparities, and the need to provide restitution to victims.

Id. § 3553(a)(1), (3)–(7). The weight given to any specific § 3553(a) factor is

committed to the “sound discretion” of the district court. United States v. Clay,

483 F.3d 739, 743 (11th Cir. 2007) (quotations omitted).

      While we have not adopted a presumption of reasonableness for sentences

within the guidelines range, United States v. Campbell, 491 F.3d 1306, 1313 (11th

Cir. 2007), we have stated that “when the district court imposes a sentence within

the advisory Guidelines range, we ordinarily will expect that choice to be a

reasonable one.” Docampo, 573 F.3d at 1101 (quotations omitted). Moreover, a

sentence imposed “well below” the statutory maximum penalty is an indicator of

reasonableness. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).

      Williams has not shown that his sentence, imposed at the low-end of the

Guidelines range, was procedurally unreasonable. First, the record does not show

that the Court concluded that the Guidelines were presumptively valid. In

addition, the Court stated that it had considered the § 3553(a) factors and

adequately explained the reasons for the sentence, namely Williams’s extensive

criminal history. Moreover, the record belies Williams’s assertion that the Court

did not consider mitigating factors.




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      Williams also does not demonstrate that his sentence was substantively

unreasonable in light of the record and § 3553(a)’s sentencing objectives. The

sentence of 110 months’ imprisonment falls within the Guidelines sentence range

and below the statutory maximum sentence, which indicates reasonableness. See

Docampo, 573 F.3d at 1101; Gonzalez, 550 F.3d at 1324. Furthermore, the

sentence reasonably meets the sentencing goals of § 3553(a)(2) in light of the

totality of the circumstances. As the Court noted, Williams had an extensive

criminal history, with 13 prior arrests and a criminal history category of VI. While

Williams asserts that he presented mitigating arguments and faults the Court for

not imposing a lower sentence based on those arguments; the weight to be given a

particular factor is within the discretion of the court. See Clay, 483 F.3d at 743. It

was also within the court’s discretion to decide that Williams’s mitigating

arguments were unconvincing.

      Lastly, Williams argues that his conviction should be vacated because 18

U.S.C. § 922(g) is facially unconstitutional because it exceeds Congress’s authority

under the Commerce Clause, and is unconstitutional as applied to his possession of

firearms. The problem with his argument is that it is foreclosed by precedent. In

United States v. Wright, 607 F.3d 708, 715–16 (11th Cir. 2010), we held that

§ 922(g) is not constitutionally invalid under the Commerce Clause. We also

rejected the defendant’s argument that § 922(g) was unconstitutional as applied to


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him because mere possession of a firearm does not substantially effect interstate

commerce.

      AFFIRMED.




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