USA v. Justin Robert Gerthoffer

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10854
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUSTIN ROBERT GERTHOFFER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 5:21-cr-00097-LCB-HNJ-1
____________________
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2 Opinion of the Court 22-10854
Before N EWSOM , G RANT, and L AGOA , Circuit Judges.
PER CURIAM:
Justin Gerthoffer appeals his sentence of 71 months for pos-
sessing a firearm as a convicted felon. Gerthoffer argues that his
sentence was procedurally and substantively unreasonable because
the district court failed to adequately explain the sentence or that it
had considered the 18 U.S.C. § 3553(a) factors. Gerthoffer also ar-
gues that the district court erred in applying a four-level increase
pursuant to U.S. Sentencing Guideline § 2K2.1(b)(6)(B) because he
didn’t possess the firearm in connection with another felony of-
fense.
I.
Because Gerthoffer didn’t object to the procedural unrea-
sonableness of his sentence, we review his challenge now for plain
error.
United States v. Ramirez-Flores, 743 F.3d 816, 821 (11th Cir.
2014). To establish plain error, the appellant must show that: “(1)
an error occurred; (2) the error was plain; (3) it affected his substan-
tial rights; and (4) it seriously affected the fairness of the judicial
proceedings.”
Id. at 822. For us to correct a plain sentencing error,
the defendant must establish that there is a reasonable probability
that, but for the error, he would have received a lesser sentence.
United States v. Arias-Izquierdo, 449 F.3d 1168, 1190 (11th Cir.
2006). If a defendant satisfies the first three prongs of the plain error
test, we have the authority to correct the plain errors but are not
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22-10854 Opinion of the Court 3
required to do so.
United States v. Olano, 507 U.S. 725, 735–36
(1993).
The district court is not required to discuss or explicitly state
that it considered each of the § 3553 factors.
United States v.
Kuhlman, 711 F.3d 1321, 1326 (11th Cir. 2013). An acknowledge-
ment that it considered them is sufficient.
United States v. Turner,
474 F.3d 1265, 1281 (11th Cir. 2007). Similarly, a district court
“need not exhaustively analyze every factor.”
United States v.
Cook, 998 F.3d 1180, 1184 (11th Cir. 2021). We have held that alt-
hough the district court failed “to explicitly articulate that it had
considered the § 3553(a) factors,” a sentence can still be reasonable
if the court “consider[ed] a number of the sentencing factors” “by
virtue of the court’s consideration of [the defendant’s] objections
and his motion for a downward departure.”
United States v. Dor-
man, 488 F.3d 936, 944 (11th Cir. 2007).
We examine the substantive reasonableness of a sentence
“in light of the totality of the circumstances and the § 3353(a) fac-
tors.”
United States v. Trailer, 827 F.3d 933, 936 (11th Cir. 2016).
“The party challenging a sentence has the burden of showing that
the sentence is unreasonable in light of the entire record, the
§ 3553(a) factors, and the substantial deference afforded sentencing
courts
.”
United States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th
Cir. 2015). We will vacate the defendant’s sentence 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) fac-
tors by arriving at a sentence that lies outside the range of
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4 Opinion of the Court 22-10854
reasonable sentences dictated by the facts of the case.”
Trailer, 827
F.3d at 936 (quotation marks omitted). Appellate courts may, but
are not required to, apply a presumption of reasonableness for sen-
tences within the guideline range.
Gall v. United States, 552 U.S.
38, 51 (2007).
Gerthoffer’s argument that the district court procedurally
erred by failing to establish that it considered the § 3553(a) factors
does not survive plain-error review. The court arguably erred by
failing to acknowledge a consideration of the § 3553(a) factors
when issuing the sentence.
Turner, 474 F.3d at 1281;
cf. Rita v.
United States, 551 U.S. 338, 358 (2007) (applying a presumption of
reasonableness for within-Guidelines ranges and affirming a “brief
but legally sufficient” statement of reasons at sentencing). The
court implicitly considered the factors, however, in its considera-
tion of Gerthoffer’s objection to the four-level enhancement,
which turned on whether Gerthoffer possessed a firearm in further-
ance of another felony and required some consideration of the na-
ture and the circumstances of the offense. Moreover, even if there
was an error and that error was plain, Gerthoffer did not establish
that there was a reasonable probability that but for the court failing
to consider the § 3553(a) factors, he would have been given a dif-
ferent sentence.
Arias-Izquierdo, 449 F.3d at 1190.
Additionally, the district court did not abuse its discretion
and issue a substantively unreasonable sentence. The district court
properly calculated the guideline range, and because the sentence
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22-10854 Opinion of the Court 5
was within that guideline range, this Court may presume it to be
reasonable.
Gall, 552 U.S. at 51.
II.
When reviewing the district court’s findings with respect to
guidelines issues, we consider legal issues
de novo, factual findings
for clear error, and the court’s application of the Guidelines to the
facts with due deference, which is akin to clear-error review.
United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010). A
factual finding cannot be clearly erroneous when the factfinder is
choosing between two permissible views of the evidence.
United
States v. Saingerard, 621 F.3d 1341, 1343 (11th Cir. 2010) (quoting
Arias-Izquierdo, 448 F.3d at 1278).
The Guidelines provide for a four-level enhancement, or an
automatic increase to level 18 if the resulting offense level is below
18, if the defendant possessed the firearm or ammunition “in con-
nection with another felony offense,” or transferred or possessed
any firearm or ammunition with the knowledge, intent, or reason
to believe that it would be used or possessed in connect with an-
other felony offense. U.S.S.G. § 2K2.1(b)(6)(B). The phrase “an-
other felony offense” is defined as “any offense (federal, state, or
local) punishable by imprisonment for a term of more than one
year, whether or not the defendant was charged with that offense.”
United States v. Smith, 480 F.3d 1277, 1280 (11th Cir. 2007). The
firearm need not directly facilitate the underlying offense to be pos-
sessed “in connection with” the offense.
United States v. Rhind,
289 F.3d 690, 695 (11th Cir. 2002).
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6 Opinion of the Court 22-10854
The district court did not clearly err by finding that Ger-
thoffer possessed the firearm in connection with another felony of-
fense. Because Gerthoffer does not contest that assault is a fel-
ony—and it was plausible that Gerthoffer was not acting in self-
defense—it cannot be clearly erroneous that the district court
found that he possessed the firearm in connection with another fel-
ony offense.
AFFIRMED.
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