                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 10-2002
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri.
Joshua E. Holmes,                       *
                                        *    [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: March 14, 2011
                                Filed: June 7, 2011
                                 ___________

Before SMITH, ARNOLD, and SHEPHERD, Circuit Judges.
                            ___________

PER CURIAM.

       Joshua E. Holmes pleaded guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court1 sentenced
Holmes to the statutory maximum sentence of 120 months' imprisonment, a sentence
below his otherwise applicable Guidelines range of 188 to 235 months' imprisonment.
On appeal, Holmes argues that his 120-month sentence is substantively unreasonable.
We affirm.



      1
        The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
                                     I. Background
        Holmes pleaded guilty, without a plea agreement, to being a felon in possession
of a firearm, in violation of §§ 922(g)(1) and 924(a)(2). The presentence investigation
report (PSR) calculated Holmes's base offense level as 26, added eight levels for
various specific offense characteristics under U.S.S.G. § 2K2.1, and reduced his
offense level by three levels for acceptance of responsibility under U.S.S.G. § 3E1.1.
The PSR assessed the third acceptance-of-responsibility level under § 3E1.1(b)
because Holmes "timely notif[ied] authorities of the intent to plead guilty." Holmes's
total offense level was 31, and his criminal history category was VI, yielding an
advisory Guidelines range of 188 to 235 months' imprisonment. But this Guidelines
range was overridden by the 120-month statutory maximum.

       Holmes objected to PSR paragraphs relating to the § 2K2.1 enhancements. At
sentencing, the district court heard testimony from three witnesses relating to
Holmes's objections. The district court denied the objections, agreed with the PSR's
calculation of the enhancements, and determined that Holmes's Guidelines range was
188 to 235 months' imprisonment. The court recognized that the Guidelines range was
overridden by the 120-month statutory maximum.

       Holmes requested a downward variance from the 120-month statutory
maximum, asking for a sentence in "the vicinity of eight years." Holmes argued that
his prior convictions for crimes of violence "did not involve any actual violence" and
that his plea of guilty saved the district court, government, and the public defender's
office "a lot of time."

      The district court denied Holmes's request for a downward variance and
sentenced him to the statutory maximum, explaining:

      Well, Mr. Holmes, it's unfortunate that you haven't learned your lesson
      somewhere earlier along the line in your many difficulties with the law.


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      This is your ninth felony conviction and you do have some serious
      offenses on your record.

      And . . . you had begun your three-year term of supervised release by 23
      months prior to being arrested on the offense that you're here on today,
      and you just haven't been willing to conform your conduct to what's
      required under the law, and you have posed a serious and significant
      threat to others in society.

      I believe that taking into consideration all of the statutory factors set
      forth under 18 U.S.C., Section 3553, including the nature and
      circumstances of the offense herein, your history and characteristics, and
      the need for the sentence to reflect the seriousness of the offense against
      you, to promote respect for the law and provide just punishment, afford
      adequate deterrence to criminal conduct, and protect the public from
      future crimes as well as all other statutory factors for consideration, I
      believe that a sentence of 120 months or ten years is a reasonable and
      appropriate sentence, and I'm going to sentence you to that period in the
      custody of the Bureau of Prisons.

                                      II. Discussion
         On appeal, Holmes argues that the district court abused its discretion in
imposing a 120-month sentence—the statutory maximum for a violation of §
922(g)(1). According to Holmes, the sentence is substantively unreasonable because
it fails to account for his acceptance of responsibility and timely entry of a guilty plea,
which advanced the rehabilitative goal of sentencing and allowed the executive and
judicial branches to conserve significant resources that would have been expended in
a jury trial. Additionally, he asserts that he was entitled to a downward variance
because his prior convictions for crimes of violence did not involve any actual
violence.

      "We review the sentencing decisions of district courts under an
abuse-of-discretion standard. Accordingly, we will not interfere with a criminal
sentence imposed by a district court unless the district court committed a significant

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procedural error or the sentence is substantively unreasonable." United States v.
Lozoya, 623 F.3d 624, 625 (8th Cir. 2010) (internal citation omitted).

       Because Holmes has not "claim[ed] [that] the district court committed a
procedural error during sentencing, we will address only the claim that the sentence[ ]
imposed [is] substantively unreasonable." Id. at 626. "A sentence is substantively
unreasonable if the district court fails to consider a relevant factor that should have
received significant weight, gives significant weight to an improper or irrelevant
factor, or considers only the appropriate factors but commits a clear error of judgment
in weighing those factors." Id. (quotation and citation omitted).

       "Here, because the bottom of [Holmes's] advisory guidelines range is above the
120-month statutory maximum, the statutory maximum sentence is presumed
reasonable." United States v. Lazarski, 560 F.3d 731, 733 (8th Cir. 2009) (quotation
and citation omitted). "[T]he fact that the sentence imposed is outside the Guidelines
range does not give rise to a presumption of unreasonableness, especially where the
variance results in a sentence even more favorable to the challenging defendant than
a within-Guidelines sentence." United States v. Curry, 536 F.3d 571, 573 (6th Cir.
2008) (internal citation omitted). "In these circumstances, it is nearly inconceivable
that the court abused its discretion in not varying downward still further." Lazarski,
560 F.3d at 733 (citing Curry, 536 F.3d at 573).

      At sentencing, the district court considered all relevant factors, including
Holmes's acceptance of responsibility, which was reflected in the calculation of his
Guidelines range. And, the district court adequately explained the sentence imposed
and stated that it was "taking into consideration all of the statutory factors set forth
under 18 U.S.C., Section 3553." Therefore, we hold that the 120-month sentence is
not substantively unreasonable. See id.




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                           III. Conclusion
Accordingly, we affirm the judgment of the district court.
               ______________________________




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