                                                      NOT PRECEDENTIAL


         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ___________

                        No. 13-1199
                        ___________

             UNITED STATES OF AMERICA

                              v.

                  JOHN GRZYMINSKI,
                                Appellant
                _______________________


             On Appeal from the District Court
           for the Eastern District of Pennsylvania
           D.C. Criminal No. 2-12-cr-00465-001
                 (Honorable Stewart Dalzell)

                      ______________

       Submitted Pursuant to Third Circuit LAR 34.1(a)
                    November 12, 2013

Before: HARDIMAN, SCIRICA, and NYGAARD, Circuit Judges

                 (Filed: November 14, 2013)


                    _________________

                OPINION OF THE COURT
                   _________________




                              1
SCIRICA, Circuit Judge

       Defendant John Grzyminski pleaded guilty to possession of unregistered firearms

in violation of 26 U.S.C. § 5861(d). He appeals his sentence of 30 months imprisonment,

3 years of supervised release, a fine of $500, and a special assessment of $100. Because

his sentence was procedurally and substantively reasonable, we will affirm.

                                            I.

       On May 9, 2012, Grzyminski’s mother, Catherine Wilson, returned to the house

she shared with her son after a brief hospital stay. Upon arriving, Wilson and her other

son, Michael Grzyminski, discovered defendant had openly displayed numerous guns

around the house. Soon after, defendant got into an argument with Wilson and Michael,

which prompted Wilson to call the Warrington Township police. The police informed

Wilson and Michael they could not remove the firearms because Grzyminski had a

license to possess them.

       After the police left, Wilson and Michael noticed a pipe bomb sitting on the

kitchen counter with a butane lighter nearby. Wilson called the police again. In addition

to the Warrington police, the Philadelphia Police Department Bomb Disposal Unit and

the Bureau of Alcohol, Tobacco, Firearms, and Explosives responded to the scene. After

evacuating the neighborhood, the Bomb Disposal Unit searched the house and discovered

two more pipe bombs in a spare bedroom upstairs. Grzyminski left the scene during the

Bomb Disposal Unit’s search, but the Solebury Township police arrested him without

incident the next day.

       On September 17, 2012, Grzyminski pleaded guilty to one count of possession of

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unregistered firearms in violation of 26 U.S.C. § 5861(d) for possession of the three pipe

bombs. At his plea hearing, defendant told the court he used pipe bombs for recreational

purposes on July 4th and New Year’s Eve.1 Based on his offense level and criminal

history category, the United States Probation Office in its Presentence Investigation

Report calculated an advisory Guidelines range of 30 to 37 months imprisonment.2

        At the sentencing hearing on January 4, 2013, Grzyminski requested a sentence of

time served—at the time, 8 months. He argued the Guidelines range was “excessive”

because he did not intend to hurt anyone and did not have a criminal history. (App. 20.)

The Government contended a Guidelines sentence was appropriate based primarily on the

circumstances of the offense—in particular, leaving a pipe bomb near a lighter, which

required law enforcement to evacuate the neighborhood. After hearing from the

Government, defense counsel, and Grzyminski himself, the District Court sentenced him

to 30 months imprisonment, 3 years of supervised release, a fine of $500, and a special

assessment of $100. This timely appeal followed.3

                                               II.

        Grzyminski contends the District Court’s Guidelines range sentence of 30 months

imprisonment was procedurally and substantively unreasonable. He argues the sentence

        1
        In an interview with the Warrington police after his arrest, defendant said he
used pipe bombs to hunt bears and threw them into lakes for entertainment.
        2
            Grzyminski had an adjusted offense level of 19 and a criminal history category
of I.
        3
        The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

                                               3
was procedurally unreasonable because the court did not meaningfully consider his

personal characteristics and the circumstances of the offense. He contends the sentence

was substantively unreasonable because the court did not reasonably apply the sentencing

factors set forth in 18 U.S.C. § 3553(a).

       As the party challenging the sentence, Grzyminski has the burden of showing

unreasonableness. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc).

We review the procedural and substantive reasonableness of the District Court’s sentence

for abuse of discretion. United States v. Begin, 696 F.3d 405, 411 (3d Cir. 2012) (citing

Gall v. United States, 552 U.S. 38, 51 (2007)).

       Our review of a district court’s sentencing decision has two steps. We first review

the sentence for procedural error, which requires ensuring the district court “(1) correctly

calculated the defendant’s advisory Guidelines range, (2) appropriately considered any

motions for a departure under the Guidelines, and (3) gave meaningful consideration to

the sentencing factors set forth in 18 U.S.C. § 3553(a).” Id. at 411 (citation omitted). If

the sentence is procedurally sound, we then review for substantive reasonableness. Id.

Under the highly deferential abuse of discretion standard, a sentence is substantively

reasonable if “‘the record as a whole reflects rational and meaningful consideration of the

factors enumerated in 18 U.S.C. § 3553(a).’” Tomko, 562 F.3d at 568 (quoting United

States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc)).

       Turning first to the procedural reasonableness of Grzyminski’s sentence, he does

not argue the District Court incorrectly calculated his Guidelines range or improperly

considered any motions for a departure. Accordingly, we only address his argument that

                                             4
the court did not give meaningful consideration to the sentencing factors set forth in §

3553(a), namely, his personal characteristics and the circumstances of the offense.

       Here, the District Court considered these factors in great depth during the

sentencing hearing. The court raised defendant’s lack of criminal history and the severity

of his offense in its initial interaction with defense counsel. (See App. 20 (“This is quite

a puzzling matter to me because, on the one hand, your client has no criminal record to

speak of, but, on the other hand, when he decided to go over the line, he did it big

time.”).) The court and defense counsel then discussed this juxtaposition between the

severity of the offense and defendant’s lack of criminal history for the next six pages of

the sentencing transcript. (Id. at 20–21.) Finally, the court addressed these factors with

Grzyminski himself before imposing its sentence. (Id. at 22).

       Although Grzyminski disagrees with the weight the court accorded his personal

characteristics and the circumstances of the crime, the record shows the court

meaningfully considered these factors in its sentencing decision. Because the sentence

was procedurally reasonable, we evaluate whether it was substantively reasonable.

       The record reflects the District Court’s “‘rational and meaningful consideration of

the factors enumerated in 18 U.S.C. § 3553(a).’” Tomko, 562 F.3d at 568 (quoting Grier,

475 F.3d at 571). The court took into account Grzyminski’s lack of criminal history,

weighed this factor against other § 3553(a) factors, including the nature and

circumstances of the crime and the need to protect the public by deterring similar




                                              5
conduct, and concluded a sentence at the bottom of the Guidelines range was justified.4

       Defendant argued his crime should be punished less severely because he intended

to use the pipe bombs for recreational, not criminal, purposes. Despite defendant’s

characterization of his actions, the court was troubled by several aspects of the offense.

The court highlighted that Grzyminski placed three pipe bombs in a home in a residential

area and left one of the bombs near a butane lighter. (App. 20, 22.) In addition, the court

noted his actions “horrified” his mother and “hugely affected” his neighbors, as they had

to evacuate their homes while law enforcement searched defendant’s house and disabled

the bombs. (Id. at 22.) The court also stressed the need to protect the public by deterring

others from engaging in similar conduct. (See id. (“[W]e absolutely have to protect the

public from crimes like this and deter people, whether because [using pipe bombs is]

amusing or people think it’s amusing.”).)

       4
         In an argument first raised on appeal, Grzyminski contends the current
Guidelines range is substantively unreasonable because it is not based on empirical data
or experience. (Br. Appellant 17–18 (citing Kimbrough v. United States, 552 U.S. 85
(2007)).) While not entirely clear, his argument appears to be that the current Guidelines
range is unreasonable because the firearm offense to which he pleaded guilty was
punished less severely in the past. (Id.) Because defendant failed to raise this objection
at sentencing, we review for plain error. United States v. Couch, 291 F.3d 251, 252–53
(3d Cir. 2002).
        Defendant’s argument rests on an incorrect reading of Kimbrough. As we
explained in United States v. Lopez-Reyes, 589 F.3d 667 (3d Cir. 2009), “Kimbrough
does not require a district court to reject a particular Guidelines range where that court
does not, in fact, have disagreement with the Guideline at issue.” Id. at 671 (emphasis
added). The District Court never, at any time during Grzyminski’s sentencing, voiced a
policy disagreement with the sentencing Guideline applicable to a conviction for
possession of an unregistered firearm. Nor did the District Court commit plain error in
failing to consider the historical development of the unregistered firearm sentencing
Guideline. See id. (noting that “a district court is not required to engage in ‘independent
analysis’ of the empirical justifications and deliberative undertakings that led to a
particular Guideline.”).
                                             6
      Based on the § 3553(a) factors, the court found sentencing defendant at the bottom

of the Guidelines range was “warranted.” (Id. at 22.) Because this 30-month sentence

“falls within the broad range of possible sentences that can be considered reasonable in

light of the § 3553(a) factors, we must affirm.” United States v. Wise, 515 F.3d 207, 218

(3d Cir. 2008).

                                           III.

      For the foregoing reasons, we affirm the judgment of conviction and sentence.




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