           Case: 19-10627   Date Filed: 10/31/2019   Page: 1 of 10


                                                       [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-10627
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:18-cr-00246-KD-MU-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

PHAY LAM SOUPHANTHOG,

                                                         Defendant-Appellant.

                       ________________________

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

                            (October 31, 2019)

Before JORDAN, NEWSOM and DUBINA, Circuit Judges.

PER CURIAM:
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      Appellant Phay Souphanthog appeals his convictions and sentences for

possession of firearms by a convicted felon, in violation of 18 U.S.C. § 922(g). On

appeal, Souphanthog first argues that the government failed to present sufficient

evidence that could convince a reasonable fact-finder that he knowingly possessed

the firearm found on the passenger floorboard of the vehicle, as charged in Count

Two, or that he knowingly possessed the firearm thrown from the passenger

window, as charged in Count Three. Second, he argues that the district court

abused its discretion by imposing consecutive 84-month sentences for Counts Two

and Three totaling 168 months’ imprisonment.

                                          I.

      We review de novo whether the evidence is sufficient to support a

conviction. United States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009).

In reviewing the sufficiency of the evidence, we determine whether the evidence,

construed in the light most favorable to the government, would permit the trier of

fact to find the defendant guilty beyond a reasonable doubt. Id. at 1284-85. “We

will not reverse unless no reasonable trier of fact could find guilt beyond a

reasonable doubt.” United States v. Farley, 607 F.3d 1294, 1333 (11th Cir. 2010).

The standard for sufficiency of evidence is the same “regardless of whether the

evidence is direct or circumstantial.” United States v. Isnadin, 742 F.3d 1278,

1303 (11th Cir. 2014) (quotation marks omitted). “However, [w]here the


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[G]overnment relies on circumstantial evidence, reasonable inferences, and not

mere speculation, must support the jury’s verdict.” Id. (quotation marks omitted).

“[W]e assume that the jury made all credibility choices in support of the verdict.”

Jiminez, 564 F.3d at 1285. We may not review determinations made by the jury as

to the credibility of witness testimony unless such testimony is “incredible as a

matter of law.” United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997)

(quoting United States v. Hewitt, 663 F.2d 1381, 1385 (11th Cir. 1981)).

Testimony is incredible as a matter of law only when it is “unbelievable on its

face” and relates to “facts that the witness physically could not have possibly

observed or events that could not have occurred under the laws of nature.” Id. at

1325 (quotations marks omitted) (alterations omitted).

      Pursuant to 18 U.S.C. § 922(g), it is unlawful for a convicted felon to

possess a firearm. 18 U.S.C. § 922(g). In turn, pursuant to § 924(a)(2), a person

who “knowingly violates” § 922(g) is subject to up to ten years in prison. Id.

§ 924(a)(2). Accordingly, to sustain a conviction for possession of a firearm by a

convicted felon under 18 U.S.C. § 922(g), the government traditionally has been

required to prove three elements: (1) the defendant was a convicted felon; (2) the

defendant was in knowing possession of a firearm; and (3) the firearm was in or

affected interstate commerce. See United States v. Wright, 392 F.3d 1269, 1273

(11th Cir. 2004). The Supreme Court recently clarified that the word “knowingly”


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in § 924(a)(2) modifies both the status and possession element, meaning that the

government must prove that the defendant both knowingly possessed the firearm

and knew that he was in a class of persons barred from possessing a firearm.

Rehaif v. United States, ___ U.S. ___, 139 S. Ct. 2191, 2195-96 (2019).

      “[T]he term ‘knowingly’ means that the act was performed voluntarily and

intentionally, and not because of a mistake or accident.” United States v.

Woodruff, 296 F.3d 1041, 1047 (11th Cir. 2002). “Possession may be actual or

constructive, joint or sole.” United States v. Boffil-Rivera, 607 F.3d 736, 740 (11th

Cir. 2010) (quotation marks omitted). “Constructive possession of a firearm exists

when a defendant does not have actual possession but instead knowingly has the

power or right, and intention to exercise dominion and control over the firearm.”

United States v. Perez, 661 F.3d 568, 576 (11th Cir. 2011) (per curiam). To

establish constructive possession of a firearm, the government must prove “through

either direct or circumstantial evidence that the defendant (1) was aware or knew

of the firearm’s presence and (2) had the ability and intent to later exercise

dominion and control over that firearm.” Id.

      As an initial matter, the government presented an argument based on the

Supreme Court’s recent holding in Rehaif. Because this issue was not addressed

by Souphanthog, it is abandoned and we will not consider it. See United States v.

Levy, 379 F.3d 1241, 1242 (11th Cir. 2004) (per curiam) (noting that a legal claim


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or argument that has not been briefed before our court is deemed abandoned, and

we will not address the merits).

      When viewed in the light most favorable to the government, we conclude

from the record that there was ample evidence for the jury to conclude that

Souphanthog knowingly possessed the firearms involved in the two separate

incidents. As to Count Two, the government presented the testimony of Shawna

Murphy that Souphanthog placed the gun under the seat and the testimony of

Deputy Gant that the firearm was found within an arm’s reach of the driver’s side

of the vehicle. This testimony was sufficient for a reasonable jury to conclude that

Souphanthog constructively possessed the firearm. As to Count Three, there was

also sufficient evidence for a reasonable jury to find that Souphanthog knowingly

possessed the firearm based on Officer Byrd’s testimony that he saw Souphanthog

throw the firearm out the window. Moreover, nothing about the testimony

supporting Counts Two or Three was incredible as a matter of law nor

unbelievable on its face.

      Accordingly, we hold that there was sufficient evidence to support the jury’s

determination that Souphanthog knowingly possessed the firearms in Counts Two

and Three.

                                           II.




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      We review the reasonableness of a sentence under a deferential

abuse-of-discretion standard, meaning that we will sometimes “affirm the district

court even though we would have gone the other way had it been our call.” United

States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc). “The party

challenging the sentence bears the burden to show that it is unreasonable in light of

the record and the [18 U.S.C.] § 3553(a) factors.” United States v. Tome, 611 F.3d

1371, 1378 (11th Cir. 2010).

      When reviewing a sentence’s reasonableness, we must ensure, first, that the

district court did not commit a significant procedural error. Gall v. United States,

552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). We ordinarily consider legal issues

de novo, review factual findings for clear error, and apply the guidelines to the

facts with due deference, which is akin to clear error review. United States v.

Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010). However, failure to preserve an

objection for procedural reasonableness at sentencing means that we may only

review for plain error. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th

Cir. 2014). Under plain error review, we may, at our discretion, correct an error

where “(1) an error occurred; (2) the error was plain; (3) it affected [the

defendant’s] substantial rights; and (4) it seriously affected the fairness of the

judicial proceedings.” United States v. Gresham, 325 F.3d 1262, 1265 (11th Cir.

2003). An error cannot be plain if the error is not obvious or clear under the


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current law as established by our court or the Supreme Court. See United States v.

Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).

      Section 3584(a) provides that, “[i]f multiple terms of imprisonment are

imposed on a defendant at the same time . . . , the terms may run concurrently or

consecutively.” 18 U.S.C. § 3584(a). Further, in determining whether the

sentences should be imposed consecutively or concurrently, § 3584(b) directs

district courts to utilize the 18 U.S.C. § 3553(a) factors. Id. § 3584(b). The

Guidelines provide that “the court shall determine the total punishment and shall

impose that total punishment on each such count, except to the extent otherwise

required by law.” U.S.S.G. § 5G1.2(b). The Guidelines further state that, “[i]f the

sentence imposed on the count carrying the highest statutory maximum is less than

the total punishment, then the sentence imposed on one or more of the other counts

shall run consecutively, but only to the extent necessary to produce a combined

sentence equal to the total punishment.” Id. § 5G1.2(d).

      Under the Guidelines, “[a]ll counts involving substantially the same harm

shall be grouped together into a single [g]roup.” U.S.S.G. § 3D1.2. Grouping of

counts under § 3D1.2 does not preclude a district court from imposing consecutive

sentences on each count. See United States v. Bonilla, 579 F.3d 1233, 1245 (11th

Cir. 2009) (holding that, “[a]lthough the underlying offenses were grouped




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together . . . [t]he district court’s imposition of consecutive sentences” was not an

abuse of discretion).

      Once we determine that the sentence is procedurally sound, we then examine

whether the sentence was substantively reasonable in light of the totality of the

circumstances and the 18 U.S.C. § 3553(a) factors. United States v. Cubero, 754

F.3d 888, 892 (11th Cir. 2014). 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). 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. 18 U.S.C.

§ 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) (quotation marks omitted). Further, the district court is permitted to attach

greater weight to one § 3553(a) factor over others. United States v. Overstreet, 713


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F.3d 627, 638 (11th Cir. 2013). However, we have determined that a “district

court abuses its discretion when it (1) fails to afford consideration to relevant

factors that were due significant weight, (2) gives significant weight to an improper

or irrelevant factor, or (3) commits a clear error of judgment in considering the

proper factors.” Irey, 612 F.3d at 1189. Moreover, a district court’s unjustified

reliance on any one § 3553(a) factor may indicate an unreasonable sentence. See

United States v. Crisp, 454 F.3d 1285, 1292 (11th Cir. 2006). Although we do not

presume that a sentence falling within the guideline range is reasonable, we

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

739, 746 (11th Cir. 2008).

      We review Souphanthog’s procedural reasonableness challenge for plain

error because he did not raise the issue in the district court. First, the probation

officer did, in fact, group his counts together when calculating his base offense

level, and the district court adopted those calculations. Second, to the extent that

Souphanthog is arguing that, because the counts were grouped, the sentences must

run concurrently, we have determined that grouping of counts under § 3D1.2 does

not preclude a district court from imposing consecutive sentences on each count.

See Bonilla, 579 F.3d at 1245.

      As to Souphanthog’s substantive reasonableness challenge, we conclude that

the district court did not abuse its discretion by imposing consecutive sentences


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totaling 168 months, which was at the low end of the guideline range. The court

properly followed the statutory directive under 18 U.S.C. § 3584(a) and concluded

that the 168-month total sentence was appropriate, properly ordering the sentences

to run consecutively to achieve the total punishment given the statutory maximum.

Further, the district court was within its discretion to place greater weight on

Souphanthog’s violent criminal history because it was extensive, involving many

heinous offenses, including murder and attempted murder. Accordingly, we affirm

Souphanthog’s convictions and sentences.

      AFFIRMED.




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