                                                       [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________           FILED
                                               U.S. COURT OF APPEALS
                            No. 10-15723         ELEVENTH CIRCUIT
                        Non-Argument Calendar    DECEMBER 14, 2011
                      ________________________        JOHN LEY
                                                       CLERK
                D.C. Docket No. 1:10-cr-00114-WS-B-1



UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                 versus

DOUGLAS WADE BRAITHWAITE,

                                                    Defendant-Appellant.

                     ________________________

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

                          (December 14, 2011)

Before EDMONDSON, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
      Douglas Wade Braithwaite appeals his 84-month sentence, imposed after he

pleaded guilty to one count of being a felon in possession of a firearm, in violation

of 18 U.S.C. § 922(g)(1). On appeal, Braithwaite argues that the district court erred

in: (1) determining that he possessed a semiautomatic firearm capable of accepting

a large capacity magazine, under U.S.S.G. § 2K2.1(a)(4)(B); and (2) applying a

four-level enhancement, under U.S.S.G. § 2K2.1(b)(6), for possession of a firearm in

connection with another felony offense. After careful review, we affirm.

      Whether the firearm in question was a semiautomatic firearm capable of

accepting a large capacity magazine for the purposes of § 2K2.1(a)(4)(B), and

whether a firearm was used or possessed in connection with another felony offense,

are findings of fact, and we normally review such findings for clear error. See United

States v. Edmonds, 348 F.3d 950, 952-53 (11th Cir. 2003). However, “it is not

necessary to decide guidelines issues or remand cases for new sentence proceedings

where the guidelines error, if any, did not affect the sentence.” United States v.

Keene, 470 F.3d 1347, 1349 (11th Cir. 2006) (quoting United States v. Williams, 431

F.3d 767, 773 (11th Cir. 2005) (Carnes, J., concurring)). This is an “assumed error

harmlessness inquiry” with two steps. Id. First, the record must clearly indicate that

the district court would have imposed the same sentence had it decided the guideline

issue in the defendant’s favor. This step is satisfied if the district court explicitly

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states on the record that it would have done so. Second, the sentence must be

reasonable even if the guideline issues had been resolved in the defendant’s favor.

Id.

      Here, the district court explicitly and unambiguously said that it would have

imposed the same sentence regardless of how it decided the guideline issues. This

express statement is sufficient to trigger Keene’s harmless error analysis, which

means that we may affirm Braithwaite’s sentence if it is reasonable, based on the

assumption that the district court decided the disputed sentencing issues in

Braithwaite’s favor. See id. at 1348-49. Assuming that the district court had done

so, § 2K2.1(a)(6)(A) would have been used to set his base offense level at 14, and

without the 4-level enhancement for possession of a firearm in connection with

another felony offense, Braithwaite’s total adjusted offense level would have been 15.

With a criminal history category of IV, this results in a suggested guidelines range of

30 to 37 months. See U.S.S.G. Sentencing Table, Ch. 5, Pt. A. We therefore must

determine whether Braithwaite’s 84-month sentence, which represents a 47-month

upward variance from the high end of that range, was reasonable.

      We review the sentence a district court imposes for “reasonableness,” which

“merely asks whether the trial court abused its discretion.” United States v. Pugh,




                                          3
515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338,

351 (2007)).

       In reviewing sentences for reasonableness, we typically perform two steps. Id.

at 1190. First, we “‘ensure that 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. (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).1 “[T]he

justification for [any] variance must be sufficiently compelling to support the degree

of the variance.” United States v. Irey, 612 F.3d 1160, 1187 (11th Cir. 2010) (en

banc) (quotation omitted), cert. denied, 131 S.Ct. 1813 (2011). We may not presume

that a non-guidelines sentence is unreasonable and generally must defer to the district

court’s decision that the § 3553(a) factors justify the extent of the variance. See id.




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

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       If we conclude that the district court did not procedurally err, we must consider

the   “‘substantive    reasonableness      of   the   sentence     imposed     under    an

abuse-of-discretion standard,’” based on the “‘totality of the circumstances.’” Pugh,

515 F.3d at 1190 (quoting Gall, 552 U.S. at 51). This review is “deferential,”

requiring us to determine “whether the sentence imposed by the district court fails to

achieve the purposes of sentencing as stated in section 3553(a).” United States v.

Talley, 431 F.3d 784, 788 (11th Cir. 2005). “[W]e will not second guess the weight

(or lack thereof) that the [district court] accorded to a given factor . . . as long as the

sentence ultimately imposed is reasonable in light of all the circumstances presented.”

United States v. Snipes, 611 F.3d 855, 872 (11th Cir. 2010) (quotation, alteration and

emphasis omitted), cert. denied, 131 S. Ct. 2962 (2011). We will “vacate the sentence

if, but only if, we are left with the definite and firm conviction that the district court

committed a clear error of judgment in weighing the § 3553(a) factors by arriving at

a sentence that lies outside the range of reasonable sentences dictated by the facts of

the case.” See Irey, 612 F.3d at 1190.

       Braithwaite’s above-guidelines sentence was not procedurally or substantively

unreasonable. When imposing its sentence, the district court explicitly said that it had

considered the § 3553(a) factors in fashioning a sentence that would accomplish the

statute’s sentencing objectives. Specifically, the district court relied heavily on

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Braithwaite’s criminal history and characteristics. 18 U.S.C. § 3553(a)(1). The

district court acknowledged that Braithwaite’s seven criminal history points were

only a “moderate number of points,” but that Braithwaite’s overall criminal history

indicated that he had been in trouble with the law repeatedly since age ten. The

district court further noted that Braithwaite’s criminal history indicated a “long-term

trend” and “a total disregard for any kind of lawful activity.”

      Nothing in the district court’s discussion at the sentencing hearing indicates

that Braithwaite’s criminal history was given preference to the exclusion of all other

§ 3553(a) factors. In fact, the district court also explicitly noted the seriousness of

Braithwaite’s criminal conduct in this instance, another § 3553(a) factor. See 18

U.S.C. § 3553(a)(2)(A). As revealed by the testimony of Special Agent Johnny

Thornton, Braithwaite illegally possessed several loaded firearms, and would not

relinquish one of them during the execution of the search warrant, indicating that the

officers faced a very dangerous situation. Given these circumstances, it was not an

abuse of discretion for the district court to conclude that an 84-month sentence

accurately reflected the seriousness of Braithwaite’s offense conduct.

      Accordingly, we affirm Braithwaite’s sentence because, even if there was a

misapplication of the sentencing guidelines, “the error did not affect the district




                                          6
court’s selection of the sentence imposed.” Keene, 470 F.3d at 1350 (quotation omitted).

      AFFIRMED.




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