                                                   NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 13-1284
                                    _____________

                          UNITED STATES OF AMERICA

                                           v.

                                 TIMOTHY WILSON,
                                 a/k/a William Gurley,
                                a/k/a Timmothy Wilson,
                                 a/k/a William Wilson,
                             a/k/a Timothy Gurley Wilson

                                         Timothy Wilson,
                                                 Appellant
                                  _______________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                             (D.C. No. 2-12-cr-00009-001)
                        District Judge: Hon. David S. Cercone
                                   _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  October 18, 2013

              Before: RENDELL, JORDAN and LIPEZ*, Circuit Judges.

                               (Filed: October 21, 2013)
                                   _______________

                             OPINION OF THE COURT
                                 _______________

_______________
       * Honorable Kermit V. Lipez, United States Court of Appeals Senior Judge for the
First Circuit, sitting by designation.
JORDAN, Circuit Judge.

          Timothy Wilson appeals the sentence imposed on him by the United States

District Court for the Western District of Pennsylvania for firearm offenses. We will

affirm.

I.        Background

          During a traffic stop, police discovered Wilson in possession of a sawed-off

shotgun. He was later charged with being a felon in possession of a firearm (Count One),

in violation of 18 U.S.C. § 922(g)(1) and § 924(e), and with possession of an unregistered

firearm (Count Two), in violation of 26 U.S.C. § 5861(d). Wilson went to trial, where he

challenged only § 922(g)’s jurisdictional element, which requires that the firearm at issue

in a case have crossed state lines. He did not dispute that his sawed-off shotgun had

crossed state lines at some point. He did, however, contend that his possession of it had

only occurred within the Commonwealth of Pennsylvania and therefore he had not

broken the law.1 Other than contesting that jurisdictional element of the offense, he

“conceded by stipulation or otherwise” all other facts necessary for a conviction.

(Appellant’s Opening Br. at 8.) At the conclusion of his trial, the jury convicted Wilson

on both counts.




          1
         The idea that, for a crime to have been committed, Wilson himself had to have
moved the gun across state lines is contrary to United States v. Singletary, in which we
held that proof of a firearm moving in interstate commerce at some point in the past is
sufficient to satisfy § 922(g)’s jurisdictional element. 268 F.3d 196, 205 (3d Cir. 2001).

                                               2
       A Presentence Investigation Report (“PSR”) was prepared and recommended that

Wilson be sentenced under the Armed Career Criminal Act (“ACCA”). That statute

mandates a minimum 15-year prison sentence for anyone possessing a firearm after

“three previous convictions … for a … violent felony … committed on occasions

different from one another.” 18 U.S.C. § 924(e). The PSR noted that Wilson had four

prior robbery convictions, all from his actions in the summer of 2006. Specifically, when

Wilson was 17 years old, he committed a string of robberies in quick succession. On

September 5, 2006, he was adjudicated delinquent for one robbery, and, in the course of

that adjudication, his other crimes became known. Wilson then pled guilty as an adult to

four robberies and was sentenced to five to ten years imprisonment. As an Armed Career

Criminal, Wilson was subject to a Guidelines Offense Level that was increased from 26

to 34. The PSR did not recommend an offense level reduction under Guidelines § 3E1.1

for acceptance of responsibility, because Wilson was convicted following a trial at which

he contested the jurisdictional element of the offense. The PSR calculated a range of

imprisonment of 262 to 327 months.

       In his objections to the PSR, Wilson contested the use of crimes committed while

he was a juvenile as a basis for applying ACCA, and he argued that he had accepted

responsibility for his most recent crimes. At the sentencing hearing, he also argued that a

15-year sentence was sufficient but not greater than necessary to promote the purposes of

sentencing provided in 18 U.S.C. § 3553(a). The District Court sentenced Wilson to a

within-Guidelines sentence of 262 months on Count One and 120 months on Count Two,



                                             3
to run concurrently, with supervised release for five years on Count One and three years

on Count Two, also to be served concurrently.

       This timely appeal followed.

II.    Discussion2

       Wilson says that the District Court erred in denying an offense-level reduction for

acceptance of responsibility. He also claims that his sentence was procedurally and

substantively unreasonable. We address his arguments in that order.

       A.     Acceptance of Responsibility

       According to Wilson, the District Court erred in denying his request for an

offense-level reduction for acceptance of responsibility under Guidelines § 3E1.1. That

section states, “if the defendant clearly demonstrates acceptance of responsibility for his

offense, decrease the offense level by 2 levels.” U.S. Sentencing Guidelines Manual

§ 3E1.1. Wilson claims that he did not contest his guilt at trial, only the constitutionality

of the application of 18 U.S.C. § 922(g) to his conduct. More specifically, he says that

the interstate commerce element was not met by his strictly intrastate possession of a gun.

The District Court rejected that argument, reasoning that a challenge to the jurisdictional

element is a challenge to an element of the crime and as such cannot be an acceptance of

guilt. The Court explained that, “In order to receive acceptance of responsibility for


       2
        The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We
exercise jurisdiction pursuant to 28 U.S.C. § 1291 and, to the extent Wilson contends his
sentence was imposed in violation of law, pursuant to 18 U.S.C. § 3742. We review the
sentencing decision of a district court for abuse of discretion, alert to procedural error and
examining the sentence for substantive reasonableness. United States v. Negroni, 638
F.3d 434, 443 (3d Cir. 2011).
                                              4
criminal activity[,] you have to admit the crime, and he didn’t.” (App. at 371.) The

Court also took into consideration Wilson’s conduct at trial, including an outburst in

which he called the police officers liars in front of the jury.

       We review for clear error the factual determination that a defendant did not accept

responsibility. United States v. DeLeon-Rodriguez, 70 F.3d 764, 767 (3d Cir. 1995); see

also U.S. Sentencing Guidelines Manual § 3E1.1 cmt. n.5 (“The sentencing judge is in a

unique position to evaluate a defendant’s acceptance of responsibility. For this reason,

the determination of the sentencing judge is entitled to great deference on review.”).

While it is true that credit for acceptance of responsibility can be given “where a

defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g.,

to make a constitutional challenge ...),” U.S. Sentencing Guidelines Manual § 3E1.1 cmt.

n.2; see also United States v. Rodriguez, 975 F.2d 999, 1008-09 (3d Cir. 1992)

(remanding because district court did not review permissibility of reduction following a

trial), it was not clearly erroneous for the District Court to determine that Wilson had not

accepted responsibility when he both contested an element of the charge, despite contrary

controlling case law, and he “accused the police of lying in order to convict him.” (App.

at 5.) The District Court here did not “ignore ... that a defendant’s decision to go to trial

does not prohibit” a reduction. Rodriguez, 975 F.2d at 1009. It addressed the point,

finding that Wilson had failed to “clearly demonstrate an acceptance of responsibility for




                                               5
his criminal conduct.” (App. at 5.) There was, therefore, no clear error in rejecting

Wilson’s insistence that he had accepted responsibility for his crimes.3

       B.     Procedural and Substantive Reasonableness

       Wilson also contends that the District Court “failed to acknowledge or respond” to

the arguments that “his youth when the ACCA predicates occurred was a mitigating

factor” warranting a variance and that a 15-year sentence “was sufficient to prevent

recidivism.” (Appellant’s Opening Br. at 23.) He says that the Court never ruled on

those variance requests, in violation of our admonition that a sentencing court “must

acknowledge and respond to any properly presented sentencing argument which has

colorable legal merit and a factual basis.” (Appellant’s Opening Br. at 24 (quoting

United States v. Ausburn, 502 F.3d 313, 329 (3d Cir. 2007)).)

       The argument about his youth has evolved over time. In his sentencing objections

before the District Court, Wilson objected only that the application of ACCA was

inappropriate because his earlier robberies were “acts of juvenile delinquency,” and, as

such, were covered by 18 U.S.C. § 924(e)(2)(B) (defining “violent felony” in the

alternative as “any act of juvenile delinquency involving the use or carrying of a firearm,

knife, or destructive device …”). (App. at 352.) The District Court rejected that

argument because the convictions are, on their face, adult convictions and no analysis


       3
         Wilson also argues that § 922(g)(1) is facially unconstitutional and
unconstitutional as applied because, under United States v. Lopez, 514 U.S. 549 (1995), it
does not regulate an activity that substantially affects interstate commerce. We expressly
rejected that argument in Singletary, 268 F.3d at 205.


                                             6
under § 924(e)(2)(B)’s juvenile delinquency provision is in order.4 Wilson’s counsel

nevertheless argued that his Guidelines offense-level calculation was impermissibly

based on “the four juvenile cases that became the one consolidated adult case for plea and

sentencing, which is problematic in the context of the armed career criminal

enhancement.” (App. at 374.) Wilson, thus, only mentioned his youth as it related to his

ACCA predicate offense, and he did not make a separate argument that his youth at the

time he committed the predicate offenses should be a mitigating factor.5

       Now, however, he says that an offender’s youth and immaturity are mitigating

factors with legal merit under Supreme Court case law recognizing the role of youth in

sentencing. See Miller v. Alabama, 132 S. Ct. 2455, 2464 (2012) (holding mandatory life

imprisonment without the possibility of parole for offenders under the age of 18

unconstitutional); Gall v. United States, 552 U.S. 38, 57-58 (2007) (holding it was not

unreasonable for district court to look at defendant’s youth at the time of the offense as a

mitigating factor).



       4
         The parties dispute how best to describe Wilson’s exact age at the time of the
robberies but, regardless of the words one uses, the fact is that he was convicted and
sentenced as an adult by the Commonwealth, so his legal arguments fail. See United
States v. Spears, 443 F.3d 1358, 1360-61 (11th Cir. 2006) (rejecting the same argument
presented here – that a prior conviction does not count as an ACCA predicate because the
defendant was only 17 years of age – because the defendant was convicted and sentenced
as an adult).
       5
         We recognize Wilson’s arguments to the contrary; however, we do not construe
the statement of Wilson’s counsel as both “an acknowledgement” that the District Court
had ruled on the ACCA issue as well as a request for the Court to consider the
circumstances of the predicate offenses as a mitigating factor. (Appellant’s Reply Br. at
6.) The statement cannot reasonably be interpreted as a request for a variance.
                                              7
       Because Wilson did not raise this particular argument before the District Court, we

review it only for plain error. See United States v. Russell, 564 F.3d 200, 203 (3d Cir.

2009) (citations omitted). “A defendant must satisfy a four-prong test to be successful

under plain error review: there must be (1) an error; (2) that is plain; (3) which affects

substantial rights; and (4) seriously impairs the fairness, integrity, or public reputation of

judicial proceedings.” United States v. Saferstein, 673 F.3d 237, 241 (3d Cir. 2012)

(quoting United States v. Cesare, 581 F.3d 206, 209 (3d Cir. 2009)). As we consider the

sentence imposed by the District Court, we must ensure that the Court committed no

significant procedural error in arriving at its decision, “such as … failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence … .” United States v. Wise, 515 F.3d 207, 217

(3d Cir. 2008) (citations omitted). If there was no procedural error, we then consider the

substantive reasonableness of the sentence in light of the appropriate guidelines range.

Id. at 218. “As long as a sentence falls within the broad range of possible sentences that

can be considered reasonable in light of the § 3553(a) factors, we must affirm.” Id.

(citations omitted).

       Here, the District Court considered the § 3553(a) factors, and it was not required

to independently raise Wilson’s age at the time of the predicate offenses – a factor it had

considered in the context of its ACCA analysis and the Guidelines calculations.

Specifically, the District Court said:

              [H]e has previously been convicted of numerous robbery
              offenses. The Defendant has juvenile convictions for simple
              assault and robbery, plus several adult convictions for

                                               8
               robbery. I believe that the sentence is necessary and
               appropriate based on the seriousness of the offense, the need
               to protect society, as well as to attempt the rehabilitation of
               the Defendant.

(App. at 387.) Not separately addressing Wilson’s youth at the time of his predicate

offenses was not plain error, as the Court was well aware of the age issue, given the

extensive ACCA arguments.

          Wilson also argues that the Court erred in not responding to his argument that a

sentence of more than 15 years would be greater than necessary. The argument fails,

however, since the record shows that the District Court did consider the sentence it gave

as necessary to reduce the risk of recidivism. In light of Wilson’s criminal history and

the reasons given by the District Court for the sentence, we cannot say that the sentence

was greater than necessary to promote the purposes set forth in § 3553(a). The sentence

is, in fact, at the bottom of the Guidelines range, and “[w]e have recognized that []

sentences … within the Guidelines range are more likely to be reasonable than those that

fall outside.” United States v. Olfano, 503 F.3d 240, 245 (3d Cir. 2007) (citations

omitted). In short, we see no procedural or substantive error in the sentence.

III.     Conclusion

         For the foregoing reasons, we will affirm the sentence imposed by the District

Court.




                                              9
