USA v. Ronald Cedric Howard, Jr.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12948
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONALD CEDRIC HOWARD, JR.,
a.k.a. Ronald Cecil Howard,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:21-cr-00006-TFM-N-1
____________________
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2 Opinion of the Court 21-12948
Before WILSON, BRANCH, and B RASHER , Circuit Judges.
PER CURIAM:
Ronald Howard, Jr., appeals his sentence of 108 months’
imprisonment for possession of ammunition by a convicted felon
under 18 U.S.C. § 922(g)(1). Howard argues that his sentence was
procedurally and substantively1 unreasonable. He contends that
the court erroneously concluded that he possessed the ammunition
in connection with another felony offense—namely, unlawful
restraint—and as a result erred in applying the cross-reference in
U.S.S.G § 2K2.1(c)2, which resulted in a higher base offense level.
1 While Howard did not object to the substantive reasonableness of his
sentence below, he properly preserved his substantive reasonableness
argument by asking for a lower sentence.
Holguin-Hernandez v. United
States, 140 S. Ct. 762, 767 (2020).
2 The relevant portion of U.S.S.G § 2K2.1(c) states
If the defendant used or possessed any firearm or ammunition
cited in the offense of conviction in connection with the
commission or attempted commission of another offense, or
possessed or transferred a firearm or ammunition cited in the
offense of conviction with knowledge or intent that it would
be used or possessed in connection with another offense,
apply—
(A) §2X1.1 (Attempt, Solicitation, or Conspiracy) in
respect to that other offense, if the resulting
offense level is greater than that determined
above
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21-12948 Opinion of the Court 3
However, because the district court gave a
Keene3 statement that
it would have imposed the same sentence regardless of the
cross-reference and because the sentence is substantively
reasonable, we affirm.
I. Background
A federal grand jury in the Southern District of Alabama
returned a superseding indictment that charged Howard with
unlawful possession of firearms and ammunition as a convicted
felon in violation of 18 U.S.C. § 922(g)(1). Howard pleaded guilty
without a written plea agreement to the unlawful possession of
ammunition but did not admit to the possession of any firearms.
A probation officer prepared a presentence investigation
report (the “PSI”) in Howard’s case. Howard’s PSI indicated that,
on February 11, 2020, Brandy Plummer accepted a ride from three
people, including Howard, who sat in the back seat next to her and
forced her to perform oral sex on him, after striking her on the head
with a firearm and while holding another firearm between his legs.
He struck her on the head again when she tried to fight back, and
physically assaulted her when she asked to leave the car. Howard
U.S.S.G § 2K2.1(c)(a). Because the defendant used ammunition in
connection with the commission or attempted commission of another
offense of unlawful restraint, the PSI cross referenced the guideline for
the ammunition offense with U.S.S.G. § 2A4.1(a) which has a base
offense level of 32.
3
United States v. Keene, 470 F.3d 1347 (11th Cir. 2006).
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4 Opinion of the Court 21-12948
admitted that Plummer performed oral sex on him but claimed
that he paid her, and he denied physically assaulting her. Police
found Plummer’s identification card in Howard’s pocket, her blood
on his pants, .38 Special ammunition in his pocket, and two
firearms in the car, one of which contained .38 Special ammunition.
Pursuant to the applicable 2018 Sentencing Guidelines,
U.S.S.G. §§ 2A4.1(a) and 2K2.1(c)(1)(A), Howard’s base offense
level was 32 because Howard used the ammunition in connection
with the commission of another offense (unlawful restraint). After
various enhancements and reductions, his total offense level was
found to be 37. His prior convictions resulted in four criminal
history points and a criminal history category of III. Based on his
total offense level of 37 and criminal history category of III,
Howard’s guidelines range was 262 to 327 months’ imprisonment.
Because, however, the guidelines range exceeded the statutory
maximum, his guideline range was adjusted to 120 months’
imprisonment to reflect the statutory maximum, pursuant to
§ 5G1.1(b).
Howard objected, in relevant part, to the guidelines
calculation, denying that any other offense, including unlawful
restraint, occurred. He argued that his base offense level should be
14, pursuant to § 2K2.1, resulting in a lower guidelines range of 24
to 30 months’ imprisonment.
At the sentencing hearing, Howard reiterated his objection.
The government presented four witnesses, including the victim
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21-12948 Opinion of the Court 5
Plummer, to prove that the cross reference in U.S.S.G. § 2K2.1(c)
was applicable.
The district court found the victim’s testimony and
statements were credible based on the DNA evidence submitted.
It also found that Howard possessed both the ammunition, to
which he pled, and the firearms. It found that the firearms
facilitated Howard’s commission of, “at a minimum,” Plummer’s
sexual assault, which he found that Howard committed beyond a
reasonable doubt. It noted that the fact that Howard pled guilty
deserved consideration. It explained that the assault could have
killed Plummer and, at a minimum, traumatized her and physically
hurt her. Thus, the court confirmed that U.S.S.G. § 2K2.1(c)
applied for possession of ammunition in connection with another
felony offense, adopted the PSI, and imposed a 108 months’
imprisonment below-guidelines sentence and 3 years’ supervised
release.
The court noted that, even if the cross reference did not
apply, it would still “depart upwardly because he did commit a
sexual assault . . . and did commit an assault, at a minimum, that in
my opinion deserves the sentence . . . imposed.” Howard objected
to the application of the cross reference for the reasons argued
earlier.
II. Standard of Review
An appellate court reviews the reasonableness of a sentence
for abuse of discretion.
Gall v. United States, 552 U.S. 38, 51 (2007).
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6 Opinion of the Court 21-12948
The court first reviews a sentence for procedural error and then
considers whether the sentence is substantively reasonable under
the totality of the circumstances.
United States v. Turner, 626 F.3d
566, 573 (11th Cir. 2010). This Court will not vacate a sentence
based on an assertion of procedural error if the district court
indicates it would have imposed the same sentence and if the
resulting sentence is reasonable.
United States v. Keene, 470 F.3d
1347, 1348–49 (11th Cir. 2006).
III. Discussion
On appeal, Howard argues that there was not sufficient
evidence that his possession of ammunition was in connection with
the commission or attempted commission of another offense, and
therefore the cross reference pursuant to U.S.S.G. § 2K2(c)(1)(A)
was in error. He also argues separately that the sentence imposed
was greater than necessary, violating 18 U.S.C. § 3553.
A district court commits a procedural sentencing error by
sentencing based on clearly erroneous facts, failing to calculate or
improperly calculating the guidelines range, failing to consider the
§ 3553(a) factors, treating the Guidelines as mandatory, or failing
to explain the chosen sentence.
Gall, 552 U.S. at 51. However, we
need not reach a Guidelines issue if it made no difference to the
sentence imposed by the district court and the ultimate sentence
was reasonable.
United States v. Goldman, 953 F.3d 1213, 1221
(11th Cir. 2020) (citing
Keene, 470 F.3d at 1349). If the district court
states that its sentence would not have changed with a different
Guidelines calculation, we assume there was an error, calculate the
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21-12948 Opinion of the Court 7
guideline range without the error, and analyze whether the
sentence would be substantively reasonable under that guideline
range.
Keene, 470 F.3d at 1349. If it is, then we will not address
the disputed Guidelines issue because “it would make no sense to
set aside this reasonable sentence and send the case back to the
district court since it has already told us that it would impose
exactly the same sentence, a sentence we would be compelled to
affirm.”
Id. at 1350.
A district court abuses its discretion and imposes a
substantively unreasonable sentence only if it: (1) fails to consider
relevant factors that were due significant weight; (2) gives
significant weight to an improper or irrelevant factor; or
(3) commits a clear error of judgment in considering the proper
factors.
United States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th
Cir. 2015). We “commit[] to the sound discretion of the district
court the weight to be accorded to each § 3553(a) factor.”4
United
4 The § 3553(a) factors include,
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
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8 Opinion of the Court 21-12948
States v. Perkins, 787 F.3d 1329, 1342 (11th Cir. 2015). We will
vacate a district court’s sentence as substantively unreasonable
“only if we are left with the definite and firm conviction that the
district court committed a clear error of judgment in weighing the
§ 3553(a) factors” as evidenced by a sentence “that is outside the
range of reasonable sentences dictated by the facts of the case.”
Goldman, 953 F.3d at 1222 (quotation omitted).
Here, the district court gave a
Keene statement, that it
would impose the same sentence regardless of the cross-reference.
Without the application of § 2K2.1(c), Howard’s guidelines range
would have been 24 to 30 months’ imprisonment. Therefore, we
will consider the substantive reasonableness of the 108-month
sentence, in light of the 24 to 30 months’ imprisonment range.
See
Keene, 470 F.3d at 1349.
The district court properly weighed the nature and
circumstances of the offense, § 3553(A)(1), the seriousness of the
offense, § 3553(a)(2)(A), and the sentencing objectives of
punishment such as deterrence and incapacitation, § 3553(a)(2)(B–
(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 . . .
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct . . .
18 U.S.C. § 3553(a).
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21-12948 Opinion of the Court 9
C). The court also considered Howard’s acceptance of
responsibility and explained in detail why it believed the sentence
imposed was necessary and appropriate in light of testimony
presented at sentencing. We do “not presume that a sentence
outside the guidelines is unreasonable and must give due deference
to the district court’s decision that the § 3553(a) factors, as a whole,
justify the extent of the variance.”
United States v. Irey, 612 F.3d
1160, 1187 (11th Cir. 2010) (quotation omitted). Additionally, the
sentence imposed is below the statutory maximum of 120 months’
imprisonment, another indication that the sentence is within the
range of reasonable sentences.
See Goldman, 953 F.3d at 1222.
Any argument that the sentence was higher than sentences for
similarly situated defendants, who pled guilty to possession of
ammunition and did not have any violent prior convictions, is
unavailing because that defendant would not be similarly situated,
as the district court found that Howard committed a sexual assault
that greatly traumatized the victim, and possessed two firearms, as
well as the ammunition. We conclude that Howard’s 108-month
sentence did not fall outside of reasonable sentences dictated by the
facts of the case. Because his sentence is substantively reasonable,
we affirm.
AFFIRMED.
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