           Case: 16-12053   Date Filed: 02/07/2017   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-12053
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:15-cr-00177-VMC-TGW-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

LEVI STACKHOUSE,

                                                         Defendant-Appellant.

                      ________________________

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

                            (February 7, 2017)

Before JULIE CARNES, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 16-12053     Date Filed: 02/07/2017     Page: 2 of 6


      Levi Stackhouse appeals his 200-month sentence, imposed within his

guidelines range, after pleading guilty to one count of felon in possession of a

firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). On appeal,

Stackhouse argues that his sentence is procedurally unreasonable because the

district court relied on a clearly erroneous fact in setting his sentence. Stackhouse

also argues that his sentence is substantively unreasonable because it is greater

than necessary under the law.

      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 reasonableness of a sentence is assessed using a two-step process. United

States v. Cubero, 754 F.3d 888, 892 (11th Cir.), cert. denied, 135 S. Ct. 764

(2014). First, we determine whether the district court committed any significant

procedural error by, among other things, selecting a sentence based on clearly

erroneous facts. Id. Second, we examine whether the sentence is substantively

reasonable under the totality of the circumstances and in light of the 18 U.S.C.

§ 3553(a) factors. Id.

      Where the defendant failed to object in the district court, we review

procedural reasonableness for plain error. United States v. Vandergrift, 754 F.3d

1303, 1307 (11th Cir. 2014). To show plain error, the defendant must show that

there is (1) an error (2) that is plain (3) that has affected the defendant’s substantial


                                            2
                Case: 16-12053     Date Filed: 02/07/2017     Page: 3 of 6


rights. Id. If those three prongs are met, we may exercise our discretion to correct

the error if it “seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. (brackets and quotation omitted). An error affects

substantial rights if the defendant shows a reasonable probability that he would

have received a lighter sentence but for the error. United States v. Jones, 743 F.3d

826, 830 (11th Cir. 2014). Where the effect of an error is uncertain or

indeterminate, the appellant has not carried his burden as to the third prong of the

plain error test. United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005).

        A factual finding is erroneous when, although there is evidence to support it,

the reviewing court is left with the definite and firm conviction that a mistake has

been made. United States v. Barrington, 648 F.3d 1178, 1195 (11th Cir. 2011). A

district court may base its factual findings at sentencing on undisputed statements

in the presentence investigation report (“PSI”). United States v. Polar, 369 F.3d

1248, 1255 (11th Cir. 2004).

        Stackhouse did not make any objections, procedural or otherwise, before or

during the sentencing hearing. Therefore, we apply the plain error test in assessing

the procedural reasonableness of Stackhouse’s sentence. Vandergrift, 754 F.3d at

1307.

        The district court did not rely on an erroneous fact when it stated that

Stackhouse “held a gun to [Barksdale’s] head.” The factual statements in the PSI


                                            3
               Case: 16-12053      Date Filed: 02/07/2017    Page: 4 of 6


could have led the district court to believe Stackhouse had held a gun to

Barksdale’s head. Furthermore, the difference between holding a gun to

someone’s head and pointing a gun at someone while threatening to shoot them in

the head is not significant enough that it leaves us with the definite and firm

conviction that the district court made a mistake in this case. See Barrington, 648

F.3d at 1195. Even if the district court did rely on an erroneous fact, Stackhouse

still did not show that this error affected his substantial rights or the fairness,

integrity, and public reputation of court proceedings. Nothing in the record

indicates that the district court would have imposed a lesser sentence if it had not

found that Stackhouse held a gun to Barksdale’s head. Jones, 743 F.3d at 830.

Thus, Stackhouse’s sentence is not procedurally unreasonable and the district court

did not plainly err.

      The substantive reasonableness of a sentence is reviewed for an abuse of

discretion, based on the totality of the circumstances. Barrington, 648 F.3d at

1203–04. For a sentence to be substantively reasonable, the district court must

impose a sentence “sufficient, but not greater than necessary to comply with the

purposes” listed in 18 U.S.C. § 3553(a)(2), including the need to reflect the

seriousness of the offense, promote respect for the law, provide just punishment for

the offense, deter criminal conduct and protect the public from the defendant’s

future criminal conduct. 18 U.S.C. § 3553(a)(2); United States v. Gonzalez, 550


                                            4
              Case: 16-12053     Date Filed: 02/07/2017    Page: 5 of 6


F.3d 1319, 1324 (11th Cir. 2008). The district court must also consider the nature

and circumstances of the offense, the history and characteristics of the defendant,

the kinds of sentences available, the applicable guidelines range, the pertinent

policy statements of the Sentencing Commission, the need to avoid unwarranted

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

§§ 3553(a)(1), (3)–(7); Gonzalez, 550 F.3d at 1324.

      We commit the weight to be accorded any factor “to the sound discretion of

the district court.” Barrington, 648 F.3d at 1204. Although we do not

automatically presume a sentence within the guidelines range is reasonable, we

ordinarily expect such a sentence to be reasonable. United States v. Hunt, 526 F.3d

739, 746 (11th Cir. 2008). A sentence imposed well below the statutory maximum

is another indicator of a reasonable sentence. See Gonzalez, 550 F.3d at 1324. The

party challenging a sentence has the burden of showing that the sentence is

unreasonable. Barrington, 648 F.3d at 1204.

      Stackhouse failed to show his sentence is substantively unreasonable. The

district court’s disagreement with Stackhouse on the weight to give mitigating

factors versus other § 3553(a) factors does not show his sentence is unreasonable.

See Barrington, 648 F.3d at 1204. The fact that his sentence is within his

guidelines range and below the statutory maximum also indicates that his sentence

is reasonable. See Hunt, 526 F.3d at 746; Gonzalez, 550 F.3d at 1324. Therefore,


                                          5
               Case: 16-12053   Date Filed: 02/07/2017   Page: 6 of 6


Stackhouse’s sentence is not substantively unreasonable and the district court did

not abuse its discretion.

      Accordingly, upon review of the record and the parties’ briefs, we affirm

Stackhouse’s 200-month sentence.

      AFFIRMED.




                                         6
