           Case: 18-10313   Date Filed: 08/22/2018   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-10313
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:17-cr-20518-JEM-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

LEE JONES SIMON,

                                                         Defendant-Appellant.

                       ________________________

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

                            (August 22, 2018)

Before MARCUS, ROSENBAUM, and BRANCH, Circuit Judges.

PER CURIAM:
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       Lee Jones Simon appeals his 37-month sentence imposed after pleading

guilty to possession of a firearm and ammunition by a convicted felon, in violation

of 18 U.S.C. § 922(g). 1 Florida law enforcement discovered the firearm in a closet

when executing a search warrant on Simon’s apartment in connection with a

separate investigation. Simon argues that the district court should have granted his

motion for a downward departure2 and that the sentence imposed was substantively

unreasonable because the district court presumed that the Guidelines range was

proper without adequately considering the following mitigating factors raised

below: (1) that his felony conviction occurred 17 years ago, and he had turned his

life around since then, and (2) that he suffers from bad health. After thorough

review of the record, we affirm.

       We review the reasonableness of a sentence under the deferential

abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). The

appellant bears the burden of showing that the sentence is unreasonable in light of




       1
          Simon was previously convicted of armed carjacking in 2001 and sentenced to four
years in prison.
       2
         To the extent Simon seeks to appeal the denial of his motion for a downward departure,
we lack jurisdiction to review a district court’s decision to deny a motion for a downward
departure where, as in this case, the district court merely exercised its discretion to deny the
motion and was not operating under the mistaken belief that it lacked the authority to grant a
departure. United States v. Dudley, 463 F.3d 1221, 1228 (11th Cir. 2006) (“We lack jurisdiction
to review a district court’s decision to deny a downward departure unless the district court
incorrectly believed that it lacked authority to grant the departure.”).
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the record and the sentencing factors of 18 U.S.C. § 3553(a). United States v.

Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

      The district court may not presume that a sentence within the Guidelines

range is reasonable; instead, to determine the appropriate sentence, the district

court must make an individualized assessment based on the facts of the case. Gall,

552 U.S. at 50. The district court is required to impose a sentence that is

“sufficient, but not greater than necessary, to comply with the purposes set forth in

[§ 3553(a)(2),]” including the need to reflect the seriousness of the offense,

promote respect for the law, provide just punishment, deter criminal conduct, and

protect the public from future crimes of the defendant. 18 U.S.C. § 3553(a)(2). In

determining the appropriate sentence, the district court must consider a variety of

factors, including (1) the nature and circumstances of the offense, (2) the history

and characteristics of the defendant, (3) the kinds of sentences available, (4) the

applicable sentencing guidelines range and pertinent policy statements of the

Sentencing Commission, (5) the need to avoid unwarranted sentencing disparities,

and (6) the need to provide restitution to victims. Id. § 3553(a). “The weight to be

accorded any given § 3553(a) factor is a matter committed to the sound discretion

of the district court.” United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007)

(quoting United States v. Williams, 456 F.3d 1353, 1363 (11th Cir. 2006)). We

will vacate a sentence as substantively unreasonable only if “we ‘are left with the


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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.’”

United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quoting

United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)).

       Prior to sentencing, the probation office prepared a presentence investigation

report, which indicated that Simon’s total base offense level under the Sentencing

Guidelines was 19. Simon’s criminal history category was III, based on a 2001

conviction for armed carjacking and a 2009 misdemeanor conviction for

possession with intent to sell, manufacture, or deliver marijuana. This resulted in

an advisory Guidelines range of 37 to 46 months’ imprisonment. The statutory

maximum term of imprisonment was 10 years. 18 U.S.C. § 924(a)(2).

       Simon filed a motion for a downward departure, pursuant to U.S.S.G.

§ 4A1.3(b),3 arguing that his criminal history was significantly overrepresented

because it was based on older convictions, the most serious of which occurred over

17 years prior, and, therefore, a downward departure was appropriate. He also

argued that a departure was warranted because he was not carrying, brandishing, or

firing the firearm during the present offense, and merely had it stored in his closet.

       3
         Section 4A1.3(b) provides that “if reliable information indicates that the defendant’s
criminal history category substantially over-represents the seriousness of the defendant’s
criminal history or the likelihood that the defendant will commit other crimes, a downward
departure may be warranted.” U.S.S.G. § 4A1.3(b)(1).
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      At sentencing, Simon’s counsel reiterated this argument, the court inquired

what an appropriate sentence would be, and Simon’s counsel urged the court to

impose a sentence in the 10 to 16 month range. The government argued that,

although the offenses may have occurred “a long time ago,” the Sentencing

Guidelines correctly reflected Simon’s criminal history and there was no reason to

depart from the advisory Guidelines range.

      The district court noted that, although Simon’s convictions may have been

older, in the past 17 years, Simon had 13 arrests. And, although those cases were

nolle prossed or otherwise dismissed, it still reflected that Simon had engaged in

concerning conduct. Additionally, the district court noted that it was troubled by

the fact that Simon’s reported work history indicated that he made at most $200 a

month, but at the time the firearm was discovered in his closet, Simon also had a

duffel bag containing over $70,000 in cash. The district court noted that, even

accepting that $36,000 of this belonged to Simon’s father and Simon “was just

holding it for his dad,” it was still troubling. The district court also noted that it did

not matter that Simon was not actively carrying, using, or brandishing the firearm

because as a convicted felon he was not supposed to possess it at all. The district

court stated that it had considered the advisory Guidelines range, and all of the

§ 3553(a) factors, as well as mitigating evidence in the form of letters of support

written by Simon’s family members. The district court also considered Simon’s


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own statement at sentencing that he had accepted responsibility for his actions, had

been doing the best he could, was not a risk to society, was in bad health, and was

very sorry for his actions. In light of all those considerations, the district court

found that a 37-month sentence at the bottom of the Guidelines range was

reasonable.

      Simon cannot show that his sentence is substantively unreasonable. The

district court did not presume that a sentence within the advisory Guidelines range

of 37 to 46 months’ imprisonment was proper. Instead, in determining the

appropriate sentence, the district court considered not only the advisory Guidelines

range, but also the age of Simon’s prior convictions, his personal history and

characteristics, the § 3553(a) factors, the arguments made by the parties, and the

mitigating evidence. The district court expressed its concerns and reasons for not

imposing a sentence below the Guidelines range, which were supported by the

record. Furthermore, the sentence is within the Guidelines range and is well below

the statutory maximum, both of which are additional indicators of reasonableness.

United States v. Asante, 782 F.3d 639, 648 (11th Cir. 2015) (“[W]e will ‘not

automatically presume a sentence within the [G]uidelines range is reasonable,’ but

we ‘ordinarily expect a sentence within the Guidelines range to be reasonable.’”

(quoting United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008)); United

States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (holding that the


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sentence was reasonable in part because it was well below the statutory maximum).

Accordingly, the district court did not abuse its discretion in imposing a 37-month

sentence, and we affirm.

      AFFIRMED.




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