United States v. Everist

United States Court of Appeals
Fifth Circuit
F I L E D
April 27, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-20059
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOSEPH LELAND EVERIST,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m H-00-CR-689-ALL
_________________________
Before GARWOOD, HIGGINBOTHAM, and
SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Joseph Everist was charged with being a
felon in possession of a firearm in violation of
18 U.S.C. §§ 922(g)(1) and 924(e)(1). Sec-
tion 922(g)(1) makes it unlawful, inter alia,
for a person who has been convicted of a
crime punishable by more than one year’s im-
prisonment to “ship or transport in interstate
or foreign commerce, or possess in or affect-
ing commerce, any firearm or ammunition; or
to receive any firearm or ammunition; or to re-
ceive any firearm or ammunition which has
been shipped or transported in interstate or
foreign commerce.”
Everist was a felon, having been convicted
and sentenced to more than a year’s impris-
onment for bank robberies. He possessed five
firearms, several of which moved in interstate
commerce in satisfaction of § 922(g)(1)’s jur-

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isdictional requirement. He was convicted and
sentenced to 180 months in prison.
Everist requested that this sentence be
served wholly concurrently with a standing
300-month sentence for the bank robberies.
The district court allowed 60 months of the
sentence to be served concurrently, the re-
maining 120 consecutively. Everist challenges
his conviction under § 992(g)(1) and the
district court’s manner of applying his partially
concurrent sentence.
I.
Everist makes a facial constitutional chal-
lenge to § 922(g)(1), arguing that the felon
firearm possession statute deprives him of the
constitutional right to keep and bear arms. In
United States v. Emerson, 270 F.3d 203, 260
(5th Cir. 2001), we held that the Second
Amendment “protects the rights of individuals,
including those not then actually a member of
any militia or engaged in active military service
or training, to privately possess and bear their
own firearms . . . .”
The Second Amendment right is subject to
“limited narrowly tailored specific exceptions
or restrictions for particular cases that are rea-
sonable and not inconsistent with the right of
Americans generally to individually keep and
bear their private arms as historically under-
stood in this country.” Id. at 261. It is not in-
consistent with the Second Amendment to lim-
it the ability of convicted felons to keep and
possess firearms.
Irrespective of whether his offense was vio-
lent in nature, a felon has shown manifest dis-
regard for the rights of others. He may not
justly complain of the limitation on his liberty
when his possession of firearms would other-
wise threaten the security of his fellow citi-
zens. See id. (noting that “it is clear that fel-
ons, infants and those of unsound mind may be
prohibited from possessing firearms”). Ac-
cordingly, § 922(g)(1) represents a limited and
narrowly tailored exception to the freedom to
possess firearms, reasonable in its purposes
and consistent with the right to bear arms pro-
tected under the Second Amendment.1 Ever-
ist’s constitutional challenge to § 922(g)(1)
fails.2
Everist asserts other constitutional theories
respecting § 922(g)(1). He argues that the
provision was enacted in excess of Congress’s
power under the Commerce Clause. That the-
ory is foreclosed under Fifth Circuit precedent
but is preserved for further review.3 Everist’s
other theories, resting variously on the Tenth
Amendment and Equal Protection Clauses, are
meritless.
1 We need not decide whether the Second
Amendment’s boundaries are properly defined
through strict scrutiny analysis, though it remains
certain that the federal government may not re-
strain the freedom to bear arms based on mere
whimsy or convenience. See Emerson, 270 F.3d at
261.
2 Other circuits, as well, have rejected consti-
tutional challenges to § 922(g)(1). See, e.g., Unit-
ed States v. Price, 328 F.3d 958, 961 (7th Cir.
2003); United States v. Boer, 235 F.3d 561, 564
(10th Cir. 2000); Gillespie v. City of Indianapolis,
185 F.3d 693, 710 (7th Cir. 1999); United States
v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974).
3 See United States v. Daugherty, 264 F.3d
513, 518 (5th Cir. 2001); United States v. Gresh-
am, 118 F.3d 258, 264-65 (5th Cir. 1997); United
States v. Kuban, 94 F.3d 971, 973 (5th Cir. 1996);
United States v. Rawls, 85 F.3d 240, 242-43 (5th
Cir. 1996).

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II.
Everist contends that the district court act-
ed improperly in sentencing him to a partially
concurrent sentence of 180 months for his vio-
lation of the felon firearm possession statute.
At the sentencing hearing, Everist requested
that his sentence run concurrently with the
300-month sentence he was serving for bank
robbery. After hearing Everist’s reason, the
district court allowed only 60 months to run
concurrently. Everist does not dispute the
calculation of the 180-month sentence––the
court properly relied on the sentencing
guidelines and the presentence report. Rather,
Everist asserts that the court failed to abide by
18 U.S.C. § 3553(c)’s requirement that a court
weigh appropriate factors and explain its rea-
soning in open court when a defendant re-
quests a concurrent sentence.
We generally review the imposition of a
consecutive sentence only for abuse of discre-
tion, if the court relied on permissible factors.
We review de novo the court’s obedience to
the sentencing guidelines and § 3553(c). Be-
cause Everist did not object to the court’s im-
plementation of § 3553(c) during the sentenc-
ing proceeding, we review this discrete issue
for plain error. See United States v. Henry,
288 F.3d 657, 664 (5th Cir. 2002); United
States v. Londono, 285 F.3d 348, 355 (5th Cir.
2002). We will correct plain error only if it
seriously affects the fairness, integrity, or pub-
lic reputation of judicial proceedings. United
States v. Ravitch, 128 F.3d 865, 869 (5th Cir.
1997).
Section 3553(c) governs a court’s consider-
ation of the sentence and explanation for its
reasoning. With respect to the imposition of
concurrent or consecutive sentences, the stat-
ute requires the court to rely on allowable fac-
tors enumerated in § 3553(a).4 Section
4 At all times pertinent to this case, § 3553(a)
provided:
The court, in determining the particular sen-
tence to be imposed, shall considerSS
(1) the nature and circumstances of the offense
and the history and characteristics of the de-
fendant;
(2) the need for the sentence imposedSS
(A) to reflect the seriousness of the of-
fense, to promote respect for the law, and
to provide just punishment for the offense;
(B) to afford adequate deterrence to crim-
inal conduct;
(C) to protect the public from further
crimes of the defendant; and
(D) to provide the defendant with needed
educational or vocational training, medical
care, or other correctional treatment in the
most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing
range established for -
(A) the applicable category of offense
committed by the applicable category of
defendant as set forth in the guidelines . . .;
or
(B) in the case of a violation of probation
or supervised release, the applicable guide-
lines . . .
(5) any pertinent policy statement issued by the
Sentencing Commission pursuant to 28 U.S.C.
(continued...)

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3553(c) requires the court to state in open
court the reasons for its imposition of a partic-
ular sentence.
The district court amply fulfilled its obliga-
tions under § 3553(c) with respect to the cal-
culation of the 180-month sentence. It relied
on and explained the presentence report and
why it believe the 180-month sentence was ap-
propriate, given the magnitude of the offense.
The court gave a much more truncated ex-
planation, however, when, after hearing argu-
ments from both sides, it denied Everist’s re-
quest for a wholly concurrent sentence. The
court revealed its reasoning only via a state-
ment during Everist’s attorney’s arguments for
a fully concurrent sentence. When counsel
said that Everist had acquired his collection of
guns because he “loves to hunt,” the court in-
terjected that “[h]e also loves to commit rob-
beries.” Nonetheless, we are confident that
the court did not commit plain error either by
failing to consider appropriate factors for the
imposition of a partially concurrent sentence
under § 3553(c) or by failing to communicate
its reasoning in open court.
As this court has noted, other circuits re-
quire “little more” than “that the record merely
not evidence a disregard for the § 3553(a)
factors.” United States v. Izaguirre-Losoya,
219 F.3d 437, 440 (5th Cir. 2000). It is suffi-
cient that “the proceedings imply consideration
of the § 3553(a) factors.” Id. The court
already had made plain its view of the severity
of Everist’s conduct when it discussed the pre-
sentence report and the manner of the sentence
calculation. Because the seriousness of the of-
fense was an important and allowable element
under § 3553(a), the court’s statements imply
consideration of relevant factors under the
statute. Nothing in the record indicates disre-
gard for the permissible factors under
§ 3553(a), so there is no plain error.
Nor did the court commit plain error in fail-
ing to state its reasons for assigning Everist a
partially concurrent sentence. Although it
would have been better, given the purposes of
§ 3553(c), if the court had carefully explained
its full reasoning, the court already, and at
length, had explained its displeasure with the
severity of Everist’s conduct and had noted
especially his recidivism as respects bank rob-
beries.
Everist and his counsel, when presented
with the fact that only sixty months of his sen-
tence were designated as concurrent, should
have been neither surprised nor puzzled. In
fact, the court was more lenient than it was re-
quired to be, by assigning any amount of the
sentence as concurrent. And again, neither
Everist nor his counsel had questions concern-
ing the imposition of the partially consecutive
sentence. There was no plain error.
Even if there were plain error, the sentence
does not undermine the fairness, integrity, or
reputation of judicial proceedings. Because
Everist had a chance to inquire further of the
court’s reasoning, we cannot say that his op-
portunity to understand his sentence was
4(...continued)
994(a)(2) that is in effect on the date the
defendant is sentenced;
(6) the need to avoid unwarranted sentence dis-
parities among defendants with similar records
who have been found guilty of similar conduct;
and
(7) the need to provide restitution to any victims
of the offense.

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otherwise diminished by the manner in which
the court conducted the proceedings.
AFFIRMED.

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