                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 11-11809                ELEVENTH CIRCUIT
                           Non-Argument Calendar            DECEMBER 9, 2011
                         ________________________               JOHN LEY
                                                                 CLERK
                 D.C. Docket No. 2:10-cr-00069-MHT-CSC-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                    versus

KENNETH LEE STEWART,

                                                           Defendant-Appellant.

                        ________________________

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

                             (December 9, 2011)

Before CARNES, HULL and WILSON, Circuit Judges.

PER CURIAM:

     After pleading guilty, Kenneth Lee Stewart appeals his sentence for
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

At sentencing, the district court imposed a 60-month sentence, 27 months above

Stewart’s advisory guidelines range of 27 to 33 months’ imprisonment. On

appeal, Stewart argues that this upward variance is procedurally and substantively

unreasonable. After review, we affirm Stewart’s 60-month sentence.

                                        I. DISCUSSION

       We review the reasonableness of a sentence for abuse of discretion using a

two-step process. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008).

We look first at whether the district court committed any significant procedural

error, such as miscalculating the advisory guidelines range, treating the guidelines

as mandatory, failing to consider the 18 U.S.C. § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to explain adequately the

chosen sentence. Id.

       Then, we examine whether the sentence is substantively unreasonable under

the totality of the circumstances, “including an inquiry into whether the statutory

factors in § 3553(a) support the sentence in question.” United States v. Gonzalez,

550 F.3d 1319, 1324 (11th Cir. 2008).1 “If the sentence imposed is outside the


       1
         The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; (3) the need for

                                                  2
Guidelines range, [we] must determine that the district court’s consideration of the

3553(a) factors justified the variance.” United States v. Jayyousi, 657 F.3d 1085,

1116 (11th Cir. 2011). The defendant bears the burden to show his sentence is

unreasonable in light of the record and the § 3553(a) factors. United States v.

Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006). “[T]he weight to be accorded any

given § 3553(a) factor is a matter committed to the sound discretion of the district

court.” United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008)

(quotation marks omitted). A sentence imposed well below the statutory

maximum is another indicator of a reasonable sentence. See United States v.

Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).

A.     Procedural Reasonableness

       The district court found that Stewart: (1) possessed the firearm with an “evil

motive”; and (2) committed perjury during his sentencing hearing. Stewart

contends these facts are clearly erroneous and argues his sentence is procedurally

unreasonable because the district court based its decision to vary upward on these

clearly erroneous facts. We find no clear error in either of the district court’s


deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).

                                                3
factual findings.2

       At the sentencing hearing, the district court credited the testimony of Officer

Jerry Boykins over Stewart’s testimony as to the events. According to Officer

Boykins, on August 7, 2009, a local prostitute, named Stephanie Jackson, flagged

him down while on patrol. Jackson reported that a black male had forced her

friend into a truck at gunpoint and driven away. Officer Boykins proceeded in the

direction Jackson indicated and spotted a truck matching the description given by

Jackson.

       Officer Boykins initiated a traffic stop and approached the truck once

backup arrived. The driver, a black male, was Defendant Stewart. Sitting next to

him was a woman, Alice Barlow, who was naked from the waist up. As Officer

Boykins approached, Barlow whispered to him, “I need help. I need to get out of

here.” Officer Boykins asked Defendant Stewart if there were any weapons in the

truck, and Stewart said no. After Stewart complied with the request to exit the

truck, Officer Boykins took Barlow to his patrol car. Barlow told Officer Boykins

that she wanted to get away from Stewart and that he had a weapon somewhere in



       2
         We review a sentencing court’s fact findings for clear error and will reverse only if “after
making all credibility choices in favor of the fact-finder and reviewing the record as a whole, it is
clear that a mistake has been made.” United States v. Ladson, 643 F3d 1335, 1341 (11th Cir.),
cert. denied, ___ S. Ct. ___, No. 11-6575, 2011 WL 4460103 (U.S. Oct. 31, 2011).

                                                 4
the truck. Upon searching the truck, Officer Boykins found a black and silver

semiautomatic pistol under the driver’s side seat.3

       Mike Myric, a homicide detective, also testified at Stewart’s sentencing

hearing. Detective Myric interviewed Defendant Stewart and Alice Barlow

because the firearm found in Stewart’s truck was used eight months earlier in a

shooting incident in a hotel room. During this December 2009 shooting incident,

a prostitute named Burnette Blue was critically injured and her boyfriend, Shawn

Rogers, was killed.

       According to Detective Myric, Alice Barlow told him that she and

Stephanie Jackson encountered Defendant Stewart at a truck stop when he offered

to help them get marijuana. Stewart drove them to a hotel parking lot, where he

pulled a gun from his glove box and said he would shoot them if they did not have

sex with him. Defendant Stewart made Jackson lie face down on the ground and

ordered Barlow to remove her clothing. Stewart then changed his mind, ordered

Barlow back into his truck and drove away with her. Defendant Stewart told


       3
        Stewart’s version of the traffic stop was wholly different. Rather than having Barlow
unclothed and afraid in his truck, Stewart testified that he was giving a ride to a male friend and a
woman (who was fully dressed) when a police officer, not Officer Boykins, pulled Stewart’s
truck over. Once the truck stopped, Stewart’s male friend and the woman jumped out of the
truck and ran away. Officer Boykins arrived on the scene only after Defendant Stewart had
exited his truck and was sitting next to a patrol car. Stewart claimed he saw the woman who had
been riding in his truck return to the scene and talk with Officer Boykins.

                                                 5
Barlow to get dressed. While Barlow was putting on her clothes, a police officer

pulled Defendant Stewart’s truck over.

      During Detective Myric’s interview, Defendant Stewart admitted that he

shot Blue and Rogers in December 2009. Stewart also said that, after he had sex

with Blue in the hotel room, Rogers entered with a gun, demanded Stewart’s

money and left. Believing he “had been set up,” Defendant Stewart demanded that

Blue give him his money back. When Blue resisted, Defendant Stewart retrieved

his firearm from his car and went back into the hotel room. Stewart told Detective

Myric that “pride made him go back in.” When Blue would not return his money,

Defendant Stewart cocked the firearm to scare her, but then “realized he had shot

her.” Stewart tried to leave the hotel room and encountered Rogers in the

doorway. Believing Rogers had a weapon, Defendant Stewart squatted down and

fired at Rogers, shooting him in the throat.

      The government also submitted a transcript of Defendant Stewart’s

statement to Detective Myric. During the interview, Defendant Stewart said that

he demanded his money from Blue, but had no intention of shooting anyone.

Through a window, Stewart thought he saw Rogers returning and was “twisting

and turning back and forth trying to watch him and watch her.” Defendant Stewart

stated, “The situation pretty much got out of control to the point where I told her,

                                          6
‘Give me my money,’ and I pulled the trigger.”4

       The district court found that Stewart “failed to show consideration of others,

and instead acted with an evil motive.” The district court explained that

Defendant Stewart’s own admission that in December 2008 he had shot Blue after

demanding that she give him his money showed “an evil mind at work.” The

district court pointed out that, on August 7, 2009, Defendant Stewart “had the

same gun he had when he shot Ms. Blue,” and concluded that Stewart had

“without question, beyond a reasonable doubt the evil motive as well.” The

district court elaborated that Defendant Stewart possessed the firearm in this

offense with the specific intent to hurt someone and that, if Stewart had

encountered someone who offended him, “he would have shot that person.” The

district court’s finding that Defendant Stewart possessed the gun with “an evil

motive,” that is, with the intent to use the gun to harm someone, is supported by

the government’s evidence presented at the sentencing hearing.

       Defendant Stewart emphasizes that the district court found that the

government failed to prove he kidnapped Jackson and Barlow. The district court

did find that although the government’s hearsay evidence supported the



       4
        At the time of this sentencing, Defendant Stewart faced state charges of capital murder of
Rogers and attempted murder of Blue.

                                                7
kidnapping scenario, it was not convincing enough to meet the preponderance-of-

the-evidence standard.5 The court pointed out neither Jackson nor Barlow testified

at the hearing. Nonetheless, contrary to Stewart’s contention, this kidnapping

finding is not inconsistent with the district court’s separate finding that Stewart

possessed the firearm with an “evil motive.” The district court credited Officer

Boykins’ testimony that when he pulled over Defendant Stewart’s truck, he found

Barlow inside, unclothed from the waist up, and clearly afraid of Stewart, whom

she knew had a weapon in his truck. Regardless of how Barlow got into Stewart’s

truck, the circumstances in which Officer Boykin found her fearful during the

traffic stop, coupled with the fact that Stewart admitted using the same firearm

eight months earlier to shoot another woman who had offended his pride, support

the court’s finding that Defendant Stewart possessed the firearm with the intent to

use it to harm someone.

       We also find no clear error in the district court’s finding that Defendant

Stewart committed perjury during the sentencing hearing. The district court found

that Officer Boykins’ testimony was “more credible,” and that while Officer

       5
        Because the district court found that the government had not proved Stewart kidnapped
Barlow and Jackson during the offense, the district court declined to calculate Stewart’s offense
using U.S.S.G. § 2A4.1(a), which would have resulted in an advisory guidelines range of 235 to
293 months. Instead, the district court calculated Stewart’s offense level using U.S.S.G.
§ 2K2.1(a)(4)(A), which yielded the significantly lower advisory guidelines range of 27 to 33
months.

                                                8
Boykins told the truth, Defendant Stewart “perjured himself; that is, he

intentionally did not tell the truth.”

      We give deference to a sentencing court’s credibility findings. United

States v. Glinton, 154 F.3d 1245, 1259 (11th Cir. 1998). Moreover, under this

deferential standard, “[w]here the factfinding resolves a swearing match of

witnesses, the resolution will almost never be clear error.” United States v.

Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005). Here, giving due deference to

the district court’s credibility finding, Officer Boykins’ testimony about the events

of the traffic stop directly contradicted Defendant’s Stewart’s testimony.

Although Stewart tries to minimize the contradiction by characterizing it as minor

or immaterial, we disagree. At sentencing, the circumstances in which Stewart

was found in possession of the gun are material. See 18 U.S.C. § 3553(a)(1)

(listing “the nature and circumstances of the offense” as one of the factors the

district court must consider in choosing a sentence). The record supports the

district court’s finding of perjury.

B.    Substantive Reasonableness

      Stewart argues the district court’s 27-month upward variance was




                                          9
substantively unreasonable because it was based on an impermissible factor.6 See

United States v. Sarras, 575 F.3d 1191, 1219 (11th Cir. 2009) (stating that a

sentence may be substantively unreasonable if, inter alia, the district court based it

on an impermissible factor). Stewart contends the district court should not have

considered the December 2008 shooting because it was not relevant conduct.

       The problem for Stewart is that the district court was not limited to relevant

conduct in considering what sentence to impose. Indeed, § 3553(a) requires the

district court to consider not only the circumstances of the charged offense but

also the “history and characteristics of the defendant,” which would include the

defendant’s criminal history and propensity for violence, and the need for the

sentence to, among other things, protect the public and deter further criminal

conduct. See 18 U.S.C. § 3553(a)(1),(2)(B),(C). The district court identified these

factors to be “critical,” and “of primary importance” in Stewart’s case. The district

court’s consideration of Stewart’s December 2008 shooting of Blue and Rogers

implicated all of these permissible factors.

       Furthermore, we cannot say the district court abused its discretion in


       6
          Stewart also argues that the upward variance was based on speculation as to Stewart’s
evil motive for possessing the firearm. This is merely a reformulation of his argument that the
district court clearly erred in finding that Stewart possessed the firearm with the intent to harm
someone. For the reasons already stated, the district court’s finding was supported by the
evidentiary record and was not speculation.

                                                 10
imposing the 27-month upward variance. Stewart’s prior felony conviction was

for arson. According to paragraph 30 of the Presentence Investigation Report (to

which Stewart did not object), Stewart started the fire in front of witnesses after

arguing with, and beating, a woman. Stewart admitted that his arson resulted in

burn injuries to another woman and her two small children who were in the home

at the time. Less than three years after Stewart was released from prison, Stewart

shot Blue and Rogers after arguing with them. Eight months after that, Stewart

still had the firearm when Officer Boykins pulled him over under suspicious

circumstances. At that time, the firearm was under Stewart’s seat, and Stewart’s

passenger, Barlow, was naked from the waist up and asking Officer Boykins for

help. When Barlow was safely out of the truck, she warned Officer Boykins that

Stewart had a gun.

      Given Stewart’s history of violence, the circumstances of Stewart’s

possession of the firearm, and the need to protect the public from Stewart and to

deter Stewart from committing further crimes, the district court’s decision to

impose a 60-month sentence, well-below the ten-year statutory maximum, was

reasonable.

      AFFIRMED.




                                          11
