                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-3043
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                 Charles Bryan Ewert

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                   for the Southern District of Iowa - Davenport
                                  ____________

                              Submitted: April 15, 2016
                                 Filed: July 7, 2016
                                  ____________

Before RILEY, Chief Judge, WOLLMAN and MURPHY, Circuit Judges.
                             ____________

RILEY, Chief Judge.

       After responding to a report of a domestic assault at the home of Charles Bryan
Ewert (Ewert) and his wife, Colleen, police executed a search warrant at the home
and located eight firearms and a substantial cache of ammunition belonging to Ewert.
Investigation revealed Ewert had a lengthy criminal history and had obtained at least
one of the firearms using false identification. Ewert was indicted and ultimately pled
guilty to making a false statement during the purchase of a firearm and being a felon
in possession of firearms, see 18 U.S.C. §§ 922(g)(1), 924(a)(1)(A), (a)(2). The
district court1 sentenced Ewert to 84 months in prison. Ewert appeals, challenging
(1) the constitutionality of the United States Sentencing Guidelines (U.S.S.G. or
Guidelines), (2) the district court’s calculation of his advisory Guidelines range,
(3) its imposition of an alternative sentence, and (4) the substantive reasonableness
of the sentence. Having jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I.     BACKGROUND
       On August 14, 2014, Colleen called 911 to report that Ewert had assaulted her
in the early morning hours that day at their home in Davenport, Iowa. According to
Colleen, Ewert was upset and began accusing Colleen of “talking to other people.”
Ewert forced Colleen into the basement of their home and held her there for
approximately three hours, threatening her, “shak[ing] [her] head,” and “repeatedly
hit[ting] [her] in the leg causing bruises.” Among other threats, Colleen reported
“Ewert told Colleen that she had two options: cut off her own hand or put two bullets
in a gun, spin it, and pull the trigger.”

      Ewert eventually let Colleen go without acting on the threat. Colleen “gave
[Ewert] a double dose of Nyquil to make him sleep.” Within the next two hours
Colleen called the police, gathered her children, and escaped to her neighbor’s home.
Based on Colleen’s report that Ewert “had multiple firearms at the residence,” the
police “surrounded the residence” and treated the situation “as a barricaded suspect
who was possibly armed.” After an hour-long “stand-off,” Ewert was arrested.

      After the arrest, police obtained and executed a search warrant on the Ewert
residence and located in the garage eight firearms and a large quantity of ammunition.
Investigation revealed Ewert had purchased one of the firearms using the “gun permit,


      1
       The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.

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driver’s license, and Form 4473 for a person with the last name of McCarthy.”
Investigation also revealed Ewert “was convicted in 2002 of felony eluding,” see
Iowa Code § 321.279(3), and was thus prohibited from possessing firearms.

       In October 2014, a grand jury returned an indictment charging Ewert with
making false statements during the purchase of a firearm, see 18 U.S.C.
§ 924(a)(1)(A); conspiracy “to commit felon in possession of a firearm,” see
18 U.S.C. §§ 371, 922(g); and being a felon in possession of firearms, see 18 U.S.C.
§§ 922(g)(1), 924(a)(2). Several months later, Ewert pled guilty to making a false
statement during the purchase of a firearm and being a felon in possession of
firearms.

       At sentencing, the district court determined Ewert had a base offense level of
20, with two four-level enhancements for the specific offense characteristics of
possessing between eight and twenty-four firearms and “us[ing] or possess[ing] any
firearm or ammunition in connection with another felony offense.” U.S.S.G.
§ 2K2.1(b)(1)(B), (6)(B). Ewert also received a three-level reduction for acceptance
of responsibility. See U.S.S.G. § 3E1.1(a), (b). Based on the resulting offense level
of 25 and Ewert’s criminal history category of III, the district court determined
Ewert’s advisory Guidelines range was 70 to 87 months and sentenced Ewert to 84
months imprisonment and three years of supervised release. Ewert appeals.

II.    DISCUSSION
       A.     Standards of Review
       “We review the district court’s interpretation of the guidelines de novo, and its
factual findings . . . for clear error.” United States v. Howard, 759 F.3d 886, 889 (8th
Cir. 2014). “When the guidelines are incorrectly applied, we remand for resentencing
unless the error was harmless, such as when the district court would have imposed the
same sentence absent the error.” United States v. Idriss, 436 F.3d 946, 951 (8th Cir.
2006).

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        We review the substantive reasonableness of a sentence for abuse of discretion.
See United States v. Keys, 785 F.3d 1240, 1243 (8th Cir. 2015). “‘On review,
sentences within the advisory Guidelines range . . . are presumptively reasonable,’”
id. (alteration in original) (quoting United States v. Solis-Bermudez, 501 F.3d 882,
884 (8th Cir. 2007)), but the “‘district court abuses its discretion and imposes an
unreasonable sentence when it fails to consider a relevant and significant factor, gives
significant weight to an irrelevant or improper factor, or considers the appropriate
factors but commits a clear error of judgment in weighing those factors.’” Id. at
1243-44 (quoting United States v. Robison, 759 F.3d 947, 950-51 (8th Cir. 2014)).

      B.     Constitutionality of Sentencing Guidelines
      We first address Ewert’s contention the Guidelines cannot be applied to him
because they are unconstitutional in that they “violate . . . separation of powers
principles.” Ewert also theorizes “the Guidelines undermine the integrity of the
Judiciary,” and he proposes his “case perfectly illustrates how the United State [sic]
Sentencing Guidelines have transformed the Judicial Branch to a system that
promotes incarceration, rather than Justice.”

        The government responds that Ewert has waived his challenge to the
constitutionality of the Guidelines because he did not raise that issue in the district
court. See, e.g., Liberty State Bank v. Minn. Life & Health Ins. Guar. Ass’n, 149
F.3d 832, 834 (8th Cir. 1998) (“[W]e do not consider constitutional arguments raised
for the first time on appeal absent exceptional circumstances, such as when the proper
result is clear or when our failure to consider the new issue would result in injustice.”
(citation omitted)). Even assuming Ewert preserved the issue, his argument on the
merits is foreclosed by the Supreme Court’s decision in Mistretta v. United States,
488 U.S. 361, 412 (1989) (upholding the constitutionality of the sentencing
commission and the Guidelines, and rejecting the separation of powers violation
argument). It is not the province of this court, as Ewert urges, to “revisit the rationale
of Mistretta.”

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      C.     Sentencing Enhancement
      Ewert next argues the district court improperly calculated his Guidelines range
because it applied a four-level enhancement for use or possession of a firearm in
connection with another felony offense. See U.S.S.G. § 2K2.1(b)(6)(B) (“If the
defendant . . . [u]sed or possessed any firearm or ammunition in connection with
another felony offense . . . increase by 4 levels.”). Ewert acknowledges he used or
possessed a firearm in connection with the offense of “Harassment in the first degree”
under the Iowa Code, § 708.7(1)(b), which is punishable by up to two years
imprisonment, see Iowa Code § 903.1(2), but he asserts this offense is “an aggravated
misdemeanor,” as defined in the Iowa Code, not a felony.

        Ewert is incorrect. The Guidelines define “felony conviction” as “a prior adult
federal or state conviction for an offense punishable by . . . imprisonment for a term
exceeding one year, regardless of whether such offense is specifically designated as
a felony and regardless of the actual sentence imposed.” U.S.S.G. § 2K2.1 n.1. In
United States v. Anderson, we explained that an “‘aggravated
misdemeanor’ . . . punishable by up to two years imprisonment, Iowa Code
§ 903.1(2)” is a felony conviction within the meaning of U.S.S.G. § 2K2.1 because
it is an “offense . . . punishable by imprisonment for a term exceeding one year.”2
United States v. Anderson, 339 F.3d 720, 724 (8th Cir. 2003) (internal quotation
marks omitted); see also, e.g., United States v. Littrell, 557 F.3d 616, 618 (8th Cir.
2009). The district court properly determined Ewert used or possessed a firearm in




      2
       The definition of “felony conviction,” once referred to as “felony offense,”
was previously located in § 2K2.1 n.7 of the Guidelines, as referenced in Anderson.
The definition has been rephrased since Anderson, but not substantively changed.
See United States v. Anderson, 339 F.3d 720, 724 (8th Cir. 2003).

                                         -5-
connection with another felony offense, and did not err by applying the corresponding
four-level enhancement.3

       D.    Substantive Reasonableness
       Finally, Ewert argues his sentence is substantively unreasonable. “A sentence
within the Guidelines range is accorded a presumption of substantive reasonableness
on appeal.” United States v. Robinson, 516 F.3d 716, 717 (8th Cir. 2008). Ewert
urges us to “abandon the use of the Presumption of Reasonableness in all cases, or
find it cannot be applied in the instant case.” We decline this proposal because the
Supreme Court has upheld this presumption, and it is the well-established law of our
circuit. See Rita v. United States, 551 U.S. 338, 347 (2007); Robinson, 516 F.3d at
717.

       Ewert seems to suggest the district court improperly applied a presumption of
reasonableness, asserting the district court did not conduct an “individualized
assessment” and selected “a sentence that just happened to fall in the middle of the
Guidelines range.” Cf. Robinson, 516 F.3d at 718 (noting the presumption of
reasonableness may be applied by the appellate court, but not the district court).
Ewert suggests the district court should have “explain[ed] why the range the
Commission came up with for a class of conduct can possibly be reasonably related
to the specific family history, employment history, criminal history, substance abuse
and psychological history of . . . Ewert, and the real conduct that brought [Ewert] to
the federal court.” In Ewert’s view, the district court “said nothing specific about Mr.
Ewert’s past, current or future life.”




      3
       Because we conclude the district court properly calculated the Guidelines
range, we need not consider Ewert’s challenge to the district court’s alternative
sentence.

                                          -6-
       The sentencing record and transcript tell a different story. The district court
specifically noted the court “looked to the Sentencing Guidelines as an important,
though not in any way controlling factor to be considered.” The district court
discussed Ewert’s past criminal history and permitted Ewert the opportunity to
explain why, after “a lot of chances to reform this exact kind of behavior,” Ewert
believed this time he would be able to conform his conduct to the law. The district
court also “considered the statements in support of Mr. Ewert, both from his friends
and family and from [Ewert’s attorney]” and “considered [Ewert’s] attempts at post-
offense rehabilitation and . . . genuine expression of remorse.” The record
demonstrates the district court adequately analyzed the sentencing factors, 18 U.S.C.
§ 3553(a), and we are satisfied the district court “‘considered the parties’ arguments
and ha[d] a reasoned basis for exercising [its] own legal decisionmaking authority.’”
Robinson, 516 F.3d at 718 (quoting Rita, 551 U.S. at 356). “[W]hen a judge decides
simply to apply the Guidelines to a particular case [as was done in Ewert’s case],
doing so will not necessarily require lengthy explanation.” Rita, 551 U.S. at 356-57.
The district court did not abuse its discretion.

III.   CONCLUSION
       The judgment of the district court is affirmed.
                      ______________________________




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