Case: 17-14605   Date Filed: 08/21/2018   Page: 1 of 6


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-14605
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 3:16-cr-00544-WKW-GMB-1



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

versus

LEMUEL GAY,

                                              Defendant - Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Alabama
                      ________________________

                             (August 21, 2018)

Before JORDAN, BRANCH, and FAY, Circuit Judges.

PER CURIAM:
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      Lemuel Gay pled guilty to being a felon in possession of a firearm and

ammunition, see 18 U.S.C. § 922(g)(1), and was sentenced to 84 months’

imprisonment. He challenges only his sentence, arguing that the district court

erred in calculating the advisory guideline range and in imposing a substantively

unreasonable sentence.

      Mr. Gay’s appeal raises a question of first impression in our circuit: Does

U.S.S.G. § 2K2.1(b)(6)(B)—which provides a four-level enhancement when a

defendant “used or possessed any firearm or ammunition in connection with

another felony offense”—apply when that “felony offense” is only potential and

had not actually occurred? Several of our sister circuits have concluded that

§ 2K2.1(b)(6)(B) does apply in such a circumstance. See United States v. Noster,

590 F.3d 624, 635–36 (9th Cir. 2009) (holding that the enhancement applies so

long as the defendant “formed a firm intent to use gun for a felonious purpose” and

that the “plan to commit the felony need not be fully developed”) (quoting United

States v. Jimison, 493 F.3d 1148, 1149 (9th Cir. 2007)); United States v.

Fredrickson, 195 F.3d 438, 440 (8th Cir. 1999) (noting that the guideline provision

“does not require the actual commission of another felony offense”); United States

v. Dodge, 61 F.3d 142, 146 (2d Cir. 1995) (holding that the enhancement, then

codified as § 2K2.1(b)(5), “does not require knowledge of the specific offense to

be committed . . . nor does it require that the defendant be convicted of another


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felony offense”). At sentencing, the district court recognized the lack of authority

in our circuit, but held that the four-level enhancement § 2K2.1(b)(6)(B) applied to

potential felony offenses—here, a potential assault or other felony given Mr. Gay’s

statement to police that he brought two guns to “settle” a dispute. See D.E. 49 at

14.

      Whether § 2K2.1(b)(6)(B) applies to potential offenses is an important issue

that we should address in a published opinion in the appropriate case, but we need

not resolve it here. Nor, assuming it applies, do we decide whether there was

sufficient evidence of a potential offense in this case.         Those issues are

“unnecessary for us to decide . . . [because] . . . a decision either way will not

affect the outcome of this case. We know it will not because the district court told

us that the enhancement made no difference to the sentence it imposed.” United

States v. Keene, 470 F.3d 1347, 1348 (11th Cir. 2006). As the district court stated,

Mr. Gay’s 84-month sentence “would have been given had the four-level [ ]

objection been sustained.” D.E. 49 at 27. See also id. at 14 (“[T]he sentence that I

give him [ ] is a reasonable, I believe, sentence irrespective of whether these four

levels applied.”).

      Given the district court’s statements that it would have imposed the same

sentence, we need only determine whether Mr. Gay’s sentence is reasonable. “In

determining whether it is reasonable we must assume that there was a guidelines


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error—that the guidelines issue should have been decided in the way the defendant

argued and the advisory range reduced accordingly—and then ask whether the

final sentence resulting from consideration of the § 3553(a) factors would still be

reasonable.” Keene, 470 F.3d at 1349. Under our abuse of discretion standard, see

Gall v. United States, 552 U.S. 38, 46 (2007), we affirm.

      Assuming the enhancement should not have applied, Mr. Gay’s advisory

guideline range would have been 46 to 57 months, so his 84-month sentence

amounted to an upward variance of 27 months. On this record, we conclude that

the district court’s “justification for the variance [was] sufficiently compelling to

support the degree of variance.” United States v. Moran, 778 F.3d 942, 983 (11th

Cir. 2015) (quotation omitted).

      The district court explained its application of the § 3553(a) factors at length.

Specifically, it took into account Mr. Gay’s serious criminal history—which

includes two counts of attempted murder for “shooting people in an occupied

vehicle,” D.E. 49 at 27—and noted that Mr. Gay continued to make poor choices

for the instant offense by “get[ting] two guns” and being involved in a fight, id. at

23. The district court also explained that the sentence would promote respect for

the law due to Mr. Gay’s repeated disciplinary violations while in prison, id. at 27,

and would also promote public safety, id. at 24. The district court’s concern for

the seriousness of Mr. Gay’s criminal history, his propensity for recidivism, and


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public safety sufficiently justify the upward variance of 27 months. See, e.g.,

Moran, 778 F.3d at 983–84 (affirming upward variance where district court

determined that the defendant’s criminal history category understated the

seriousness of his criminal history); United States v. Martinez-Gonzalez, 663 F.3d

1305, 1311 (11th Cir. 2011) (affirming reasonableness of sentence because the

district court found defendant’s “history of arrests and convictions was compelling

evidence of his propensity to recidivate”) (alterations adopted).

      Mr. Gay contends that the district court did not adequately consider his

troubled upbringing and young age. To the contrary, the district court explicitly

considered these factors and took them into account by fashioning a partially

concurrent sentence (to his state attempted murder charges) to ensure that Mr. Gay

would not be in prison beyond 2030. See D.E. 49 at 25–26 (explaining decision to

run sentence partially concurrent as permitted by § 5G1.3). See also id. at 27

(“I’ve also taken into consideration your upbringing and background.”).        The

district court’s decision to weigh the seriousness of Mr. Gay’s criminal conduct

and public safety more heavily than these mitigating factors was well within its

discretion. See United States v. Dougherty, 754 F.3d 1353, 1361 (11th Cir. 2014)

(“The district court must evaluate all of the § 3553(a) factors, but it may attach

great weight to one factor over others.”); United States v. Amedeo, 487 F.3d 823,

832 (11th Cir. 2007) (“The weight to be accorded any given § 3553(a) factor is a


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matter committed to the sound discretion of the district court, and we will not

substitute our judgment in weighing the relevant factors.”) (alterations adopted).

      For the foregoing reasons, we affirm Mr. Gay’s sentence.

      AFFIRMED.




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