USA v. Benny Earl Yauger, Jr.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13099
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENNY EARL YAUGER, JR.,
Defendant- Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 7:20-cr-00305-LSC-SGC-1
____________________
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2 Opinion of the Court 21-13099
Before N EWSOM , G RANT, and B RASHER , Circuit Judges.
PER CURIAM:
Benny Yauger, Jr. pleaded guilty to one count of unlawful
possession of a firearm. The district court sentenced him to 90
months’ imprisonment. He now argues that the district court
abused its discretion by justifying an upward variance from the
Guidelines range with a clearly erroneous fact. He also argues that
his sentence was based on an incorrect application of a Guidelines
enhancement. Because the district court did not rely on a clearly
erroneous fact and because any error in its application of the
enhancement was harmless, we affirm.
I.
In January 2020, the Greene County, Alabama Sheriff’s
Office responded to a call about a shooting. The caller then
identified the vehicle from which the shots had been fired. The
responding officer pulled over the vehicle, and a backup officer
joined him at the scene. A man fled from the passenger seat into
the woods while carrying a rifle. Almost immediately afterward,
someone called 911 and told the dispatcher that he would “kill the
n****r police if they didn’t back off” because he is a “n****r killer.”
The two officers then heard shots fired from the woods, and they
retreated.
Police determined that Yauger had fled the vehicle, made
the 911 call, and fired the shots in the woods. The Sheriff’s Office
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21-13099 Opinion of the Court 3
obtained arrest warrants for the attempted murder of the two
police officers, for making terrorist threats, and for attempt to
elude. A few months later, state and federal officers went to
execute the arrest at Yauger’s family’s property, where they found
him in a shed. He surrendered without incident, unarmed but with
a .308 round in his pocket. In and around the shed, the police found
five guns, thousands of rounds of ammunition, a pickle jar filled
with marijuana, a separate bag filled with marijuana, and twelve
marijuana seedlings. According to a police officer who helped clear
the guns, one of them was a jammed .308 caliber rifle that took
multiple officers several minutes to clear. And one of the officers
who arrested Yauger testified that a loaded .22 rifle was also
hanging immediately outside the door to the shed.
Yauger had a prior felony conviction for possession of a
controlled substance, and the United States charged him with one
count of unlawful possession of a firearm under 18 U.S.C.
§ 922(g)(1). He pleaded guilty without a plea agreement.
At sentencing, the United States and Yauger disagreed about
the applicability of a four-level sentencing enhancement under
U.S.S.G. § 2K2.1(b)(6)(B), which applies when a defendant “used or
possessed any firearm or ammunition in connection with another
felony offense.” The United States argued that Yauger’s firearm
possession was connected to his possession of marijuana for other
than personal use, which is a felony under Alabama state law.
See
Ala. Code § 13A-12-213. Yauger countered that he only possessed
the marijuana for personal use, and that he had accordingly at most
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4 Opinion of the Court 21-13099
committed a misdemeanor under Alabama law.
See Ala. Code
§ 13A-12-214. He also argued that there was no “connection”
between his possession of the firearms—which he claimed he
owned for hunting—and his possession of the marijuana. The
parties stipulated that Yauger was under a state indictment for
possession of marijuana not for personal use, but that one of the
arresting officers had assessed that the marijuana was a personal
use amount. Without the enhancement, the Guidelines range
would have been 30 to 37 months in prison. With the
enhancement, the Guidelines range was 46 to 57 months in prison.
The district court determined that the enhancement applied.
The court first noted that the presence of the jammed firearm was
consistent with Yauger having attempted to operate the rifle when
the officers first arrived. The court also indicated that the presence
of a loaded rifle right by the door was “alarming” because it
suggested a potential readiness to engage in violence at a moment’s
notice. The court determined that the quantity of marijuana was
consistent with unlawful possession in the first degree for other
than personal use, and that the guns were present at the scene for
the purpose of protecting the drugs.
The district court then sentenced Yauger to 90 months in
prison, varying upward from the Guidelines range of 46 to 57
months. It explicitly noted that it would have reached the same
sentence whether or not it applied the enhancement. The court
again speculated that “the only reason why there wasn’t a shootout
at the place was because the gun apparently jammed, the rifle.” But
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21-13099 Opinion of the Court 5
it caveated that “whether that happened or didn’t happen, he was
set up for that, for them to have a shootout there at the facility.”
The court said that it considered the statutory maximum of 120
months, but only gave a sentence of 90 months because Yauger
surrendered rather than have a shootout with law enforcement.
The court then referenced the § 3553(a) factors, noting that it
considered a 90-month sentence to be “reasonable when I consider
your nature, your circumstances, the circumstances of this
occasion, the need to protect the public from your criminal
conduct. Everything—all those factors together.” The court
ordered the sentence to run concurrently with any sentence for
Yauger’s state court charges for attempted murder, making a
terrorist threat, attempt to elude, and marijuana possession,
because it was “considering all the conduct of the defendant” in its
calculation of his federal sentence.
Yauger objected that the upward variance from the
Guidelines range was unreasonable. He now appeals his sentence.
II.
We review the procedural and substantive reasonableness
of a sentence for abuse of discretion.
United States v. Overstreet,
713 F.3d 627, 636 (11th Cir. 2013). “When the appealing party does
not clearly state the grounds for an objection in the district court,
we are limited to reviewing for plain error.”
United States v.
Massey, 443 F.3d 814, 818 (11th Cir. 2006). Yauger objected to the
application of the Guidelines enhancement, but he did not
specifically argue below that the district court had relied on a
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6 Opinion of the Court 21-13099
clearly erroneous fact. However, because the United States does
not press this point and because the standard of review does not
affect the outcome, we analyze both issues for abuse of discretion.
Yauger argues that the district court abused its discretion by
basing its sentence on a clearly erroneous fact. He claims that the
court’s speculation that he would have had a shootout with the
police if his gun had not jammed was not supported by the record.
We disagree. The district court caveated its theory that the
jammed gun prevented a shootout; it made clear that “whether
that happened or didn’t happen,” it was basing its upward variance
on the fact that Yauger was “set up” for “them to have a shootout.”
The more appropriate question is whether the court clearly erred
in determining that Yauger was “set up” for a shootout.
The court’s finding was not clear error. Police found Yauger
—who was wanted for attempted murder and who had allegedly
threatened to “kill the n****r police” if they didn’t “back off”—in a
shed with five guns and thousands of rounds of ammunition. In
other words, he allegedly threatened to shoot the police if they
pursued him, the police did in fact pursue him, and they found him
with everything he would need for a shootout. We do not think
that the court clearly erred by inferring that Yauger was “set up for
a shootout” in these circumstances.
Yauger also argues that the court erred by applying the
Guidelines enhancement. But we need not consider this question.
When a district court notes that it would have imposed the same
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21-13099 Opinion of the Court 7
sentence even if it had not imposed a Guidelines enhancement,
then—so long as the ultimate sentence was substantively
reasonable even without the enhancement—any error in applying
the enhancement “will not affect the outcome” and is therefore
harmless.
United States v. Keene, 470 F.3d 1347, 1348–49 (11th Cir.
2006). Here, the court explicitly held that it would have applied the
same sentence with or without the enhancement. And for the
same reasons that we do not believe the district court clearly erred
in determining that Yauger was set up for a shootout, we also think
that a 90-month sentence was substantively reasonable regardless
of whether the enhancement applied. The unlawful possession of
a firearm is always a serious offense, but it is even more so when
the offender has outstanding warrants for attempted murder of
two police officers and making terrorist threats, and also has access
to multiple firearms and large quantities of ammunition. The
district court’s sentence reasonably accounted for these
“circumstances of the offense.”
See 18 U.S.C. 3553(a).
Yauger responds by arguing that
Keene does not apply when
the district court incorrectly applies an enhancement and also bases
its sentence on a clearly erroneous fact.
See United States v. Slaton,
801 F.3d 1308, 1320 (11th Cir. 2015). But as we have already
discussed, the district court did not base its sentence on a clearly
erroneous fact. Yauger’s argument thus fails, and any error in the
district court’s application of the enhancement was harmless.
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8 Opinion of the Court 21-13099
* * *
Because the district court did not rely on a clearly erroneous
fact, and because any error in applying the Guidelines
enhancement was harmless, we AFFIRM.
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