                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              July 21, 2009
                              No. 08-15727                  THOMAS K. KAHN
                          Non-Argument Calendar                  CLERK
                        ________________________

                     D. C. Docket No. 08-00005-CR-WS

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

CECIL LEVON GRIDER,

                                                          Defendant-Appellant.


                        ________________________

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

                                (July 21, 2009)

Before BIRCH, BARKETT and HULL, Circuit Judges.

PER CURIAM:

     Cecil Levon Grider appeals his 30-month sentence for possession of
ammunition by a convicted felon. On appeal, Grider challenges the application of

U.S.S.G. § 2K2.1 to his base offense level, alleging that, as a matter of policy, it

unfairly establishes equal punishments for possession of ammunition and

possession of a firearm. In the alternative, Grider contends the district court should

have downwardly departed or varied from the Guideline range based on this unfair

punishment scheme and his personal circumstances and history and that the court’s

refusal to do so reflected an improper “presumption of reasonableness” for the

Guideline range. We find no merit to either of these arguments.

                                           I.

      Grider argues that the district court erred by applying § 2K2.1 in

determining his base offense level because it failed to distinguish between

possession of a firearm and possession of ammunition in spite of the court’s

acknowledgment that there was “certainly” a difference between the two. Grider

asserts that under Kimbrough v. United States, 552 U.S. __, 128 S.Ct. 558 (2007),

the district court could have disregarded § 2K2.1 based on a policy disagreement

with equating firearms and ammunition. We disagree.

      In United States v. Vazquez, 558 F.3d 1224 (11th Cir. 2009), we held that

Kimbrough addressed only a district court's discretion to vary from the Guidelines

“based on a disagreement with Guideline, not Congressional, policy.” Id. at 1229.



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In this case, however, Congress explicitly prohibits a felon from possessing either

ammunition or a firearm, 18 U.S.C. § 922(g), and possession of either subjects a

defendant to the same penalties, see generally 18 U.S.C. § 924(a). In order to

effectuate this congressional policy, U.S.S.G. § 2K2.1 governs sentencing for

unlawful receipt, possession, or transportation of both a firearm or ammunition.

Although it retained its full discretion to deviate from the Guidelines based upon

the unique circumstances of Grider’s case, the district court did not err in declining

to disregard § 2K2.1.

                                               II.

       We generally lack jurisdiction to review a district court’s refusal to grant a

downward departure, unless the district court incorrectly believed that it lacked the

statutory authority to depart from the Guidelines range. United States v. Norris,

452 F.3d 1275, 1282 (11th Cir. 2006).1 We review de novo whether the district

court believed it lacked authority to depart. United States v. Holden, 61 F.3d 858,

860 (11th Cir. 1995). When nothing in the record indicates otherwise, we assume

that the sentencing court understood it had authority to depart downward. United



       1
         In addition, we may review a refusal to grant a downward departure to the extent that it
was based on a possible misinterpretation or misapplication of the Guidelines’ directives
regarding such departures. United States v. Castellanos, 904 F.2d 1490, 1497 (11th Cir. 1990).
However, Ward does not argue that the court misapplied or misinterpreted a provision of the
Guidelines related to downward departure.

                                                3
States v. Chase, 174 F.3d 1193, 1195 (11th Cir.1999). .2

       In this case, the court correctly determined Grider’s Guideline range, and we

see no indication in the record that the court mistakenly believed that it lacked the

authority to depart downward. Although the district judge did indicate that he felt

“obliged to apply [the] Guideline” in spite of his agreement with Grider that there

is a difference between possessing a gun and possessing ammunition, this

statement goes to the court’s (accurate) understanding that it lacked discretion to

disregard a federal statute, namely 18 U.S.C. § 922(g), which prohibits possession

of both a firearm and ammunition, or § 924(a), which provides punishment for the

violation of § 922(g). However, it does not demonstrate a mistaken belief that the

court lacked the discretion to depart downward based on other factors unique to the

defendant or his situation. Therefore, we lack jurisdiction to review the district

court’s decision not to downwardly depart from the Guidelines range.

                                             III.

       Our review of the district court’s decision not to grant Grider a “variance”

from the Guidelines, as opposed to a departure, is more appropriately considered a

       2
          Grider bore the burden of proving, by a preponderance of the evidence, that he was
entitled to the departure. United States v. Stuart, 384 F.3d 1243, 1246 (11th Cir. 2004). Any
“factor which removes the case from the heartland of the Guidelines and warrants a downward
departure must be supported by evidence in the record.” Id.; see also U.S.S.G. § 5K2.0
(providing that a district court has the authority to depart downward only if it finds an
aggravating or mitigating circumstance “not adequately taken into consideration by the
Sentencing Commission in formulating the Guidelines . . .”).

                                               4
review of the reasonableness of the court’s sentence in light of the sentencing

factors set forth at 18 U.S.C. § 3553(a). See United States v. Willis, 560 F.3d

1246, 1251 (11th Cir. 2009). We review the reasonableness of a sentence for

abuse of discretion. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586 (2007).

Specifically, we

       must first 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. at 597.

       Although district courts must consider the Guidelines as one of several §

3553 factors, district courts may not presume that a sentence within the Guidelines

range is reasonable. See Rita v. United States, 551 U.S. 338, ___, 127 S.Ct. 2456,

2465 (2007).

       Our review of the sentencing transcript in this case demonstrates that the

district court adequately considered the § 3553(a) factors and did not erroneously

apply a presumption of reasonableness to the Guidelines range. Indeed, the court

specifically noted that it was required to consider § 3553(a) “to find a sentence

that’s reasonable and appropriate under the circumstances” and that it believed that



                                          5
a 30-month sentence was reasonable and appropriate. The court indicated that it

had considered Grider’s personal history and characteristics, a psychiatric report on

Grider’s alleged mental deficiencies, and Grider’s extensive criminal history before

arriving at the sentence imposed. The court also considered a letter from Grider’s

mother suggesting that Grider’s criminal history was a result of “the environment

in which lives” but determined that much of Grider’s past conduct was not

excusable simply based upon environmental factors. We therefore find that the

district court’s denial of Grider’s request for a variance and imposition of a 30-

month sentence were reasonable light of the facts and circumstances of this case.

      AFFIRMED.




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