Appeal from the United States District Court for the Eastern District of Missouri.
The opinion of the court was delivered by: Colloton, Circuit Judge
Submitted: September 23, 2008
Before BYE, BEAM, and COLLOTON, Circuit Judges.
Charles Barron pled guilty to unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). The district court*fn1 sentenced Barron to 46 months' imprisonment, a term within the advisory guideline range of 46 to 57 months. Barron appeals his sentence, arguing that the district court abused its discretion by failing adequately to consider the need to avoid unwarranted sentence disparities under 18 U.S.C. § 3553(a) and by refusing to vary from the guideline range because of the "inherent inequity" of USSG § 2K2.1(a)(4)(B), which provides an increased base offense level for offenses involving large-capacity semiautomatic firearms. We affirm.
Under the framework for appellate review established by Gall v. United States, 128 S.Ct. 586 (2007), and United States v. Booker, 543 U.S. 220 (2005), we may consider contentions that the district court committed procedural error in imposing sentence and arguments that the sentence imposed is substantively unreasonable. Barron raises both procedural and substantive challenges, and we consider them in turn.
Barron's procedural challenge is that the district court failed adequately to consider his arguments regarding alleged sentence disparity. Barron urged that a more lenient sentence was warranted in light of the sentence of probation granted to another defendant who Barron asserts was similarly situated. Barron also argued that he used his firearms only for lawful sporting purposes, and that his ineligibility for a reduction in offense level on that basis, because at least one of his firearms was a large-capacity semiautomatic weapon, would cause unwarranted sentence disparity. See USSG § 2K2.1(b)(2). Barron did not object at sentencing to the adequacy of the district court's consideration of § 3553(a)(6), so we review for plain error. United States v. Gray, 533 F.3d 942, 945 (8th Cir. 2008).
A district court commits procedural error if it fails to consider the § 3553(a) factors, Gall, 128 S.Ct. at 597, but the court need not recite all of the factors on the record, United States v. Todd, 521 F.3d 891, 897 (8th Cir. 2008), and it is not required to make a specific rejoinder to each argument advanced by the defendant. United States v. Henson, 550 F.3d 739, 742-43 (8th Cir. 2008); United States v. Abdullahi, 520 F.3d 890, 894 (8th Cir. 2008). We consider the entire sentencing record, not only the district court's statements at the hearing, in determining whether the court's consideration of § 3553(a) was adequate. Gray, 533 F.3d at 944.
Here, Barron argued in his sentencing memorandum that the district court should impose the same sentence of probation that another district court imposed in United States v. Francis, No. 03-CR-03174 (W.D. Mo. Nov. 28, 2006), because Barron's offense conduct was similar to that of Francis. See United States v. Francis, 462 F.3d 810, 812-14 (8th Cir. 2006) (describing the relevant facts). Barron asserted that he, like Francis, had reason to believe that the prohibition on his possession of firearms had ended, and urged that a failure to grant him the same degree of leniency accorded to Francis would cause unwarranted sentence disparity.
The record satisfies us that the district court adequately considered this contention. The court made clear that it studied Barron's sentencing memorandum, which set forth the argument based on Francis. Although neither the court nor the parties expressly mentioned Francis or the need to avoid unwarranted disparities at the sentencing hearing, the court did hear extensive argument and testimony regarding Barron's state of mind. The court found that there was no basis for Barron to believe that he could lawfully possess firearms, thus rejecting the heart of Barron's argument regarding Francis and alleged sentence disparity. Moreover, given the broad discretion now accorded district judges in applying the § 3553(a) factors, we decline to impose a procedural requirement that a district judge, at the request of one party, must compare and contrast the defendant under consideration with a similar offender who has been sentenced by another federal judge in another judicial district, and articulate on the record why the two offenders are sentenced differently. While the Supreme Court said that district courts under the new regime should "take account of sentencing practices in other courts," Kimbrough v. United States, 128 S.Ct. 558, 574 (2007), it is unrealistic to expect that in any given case, the parties can produce information about individual sentences imposed in numerous proceedings around the country that may involve offenders similar to the defendant under consideration. It would give too much weight to the decision of one district judge if we were to require that the sentencing court use a single example cited by one party as the reference point for an appropriate sentence under § 3553(a).
We also discern no procedural error in the district court's response to Barron's argument about disparity allegedly caused by his ineligibility for the lawful sporting purposes reduction under the guidelines. The advisory guidelines provide that the defendant's base offense level in a firearms case will be reduced to six if the defendant "possessed all ammunition and firearms solely for lawful sporting purposes or collection, and did not unlawfully discharge or otherwise unlawfully use such firearm." USSG § 2K2.1(b)(2). The provision is not applicable, however, if the defendant is subject to the enhancement for possession of a large-capacity semiautomatic firearm. Id. The district court could have rejected this disparity argument out of hand, on the basis that the conduct of defendants who possess hunting rifles or shotguns is not similar to that of defendants who possess large-capacity semiautomatic weapons, and that "disparity" between the two situations is warranted. But the court here went further by considering and rejecting the factual premise of Barron's argument, concluding that "a finding that these firearms were used for hunting purposes or sporting purposes or for collection might be more reasonable but for the fact that there were so many of these firearms. So much ammunition." (S. Tr. 43). Having determined that Barron's claim of possessing the firearms solely for sporting purposes was unpersuasive, the court explained that his argument for a variance did not "carry very much weight at all." (Id.). We are thus satisfied that the district court adequately considered Barron's arguments about the need to avoid unwarranted sentence disparities in this case.
We review the substantive reasonableness of Barron's sentence under a deferential abuse-of-discretion standard. Gall, 128 S.Ct. at 597. The district court sentenced Barron to a term within the advisory range recommended by the Sentencing Commission, so we presume that it is substantively reasonable. United States v. Lincoln, 413 F.3d 716, 717 (8th Cir. 2005); see Rita v. United States, 127 S.Ct. 2456, 2462 (2007).
Barron argues that the district court abused its discretion by refusing to vary from the advisory guideline range because of what he terms the "inherent inequity" of the guideline that determined his base offense level, USSG § 2K2.1(a)(4)(B). When adopted in 1995, this provision provided for a base offense level of 20 when the defendant was a "prohibited person" and the "offense involved a firearm described in . . . 18 U.S.C. § 921(a)(30)." USSG § 2K2.1(a)(4)(B) (Nov. 1995); see also USSG App. C, amend. 522. Section 921(a)(30) was enacted as a part of a 1994 Act of Congress that defined and prohibited the manufacture, transfer, or possession of a "semiautomatic assault weapon." See Public Safety and Recreational Firearms Use Protection Act, Pub. L. No. 103-322, Title XI, Subtitle A, ...