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United States v. Ewert

United States Court of Appeals, Eighth Circuit

July 7, 2016

United States of America, Plaintiff-Appellee
v.
Charles Bryan Ewert, Defendant-Appellant

          Submitted: April 15, 2016

         Appeal from United States District Court for the Southern District of Iowa - Davenport

          Before RILEY, Chief Judge, WOLLMAN and MURPHY, Circuit Judges.

          RILEY, Chief Judge.

         After responding to a report of a domestic assault at the home of Charles Bryan Ewert (Ewert) and his wife, Colleen, police executed a search warrant at the home and located eight firearms and a substantial cache of ammunition belonging to Ewert. Investigation revealed Ewert had a lengthy criminal history and had obtained at least one of the firearms using false identification. Ewert was indicted and ultimately pled guilty to making a false statement during the purchase of a firearm and being a felon in possession of firearms, see 18 U.S.C. §§ 922(g)(1), 924(a)(1)(A), (a)(2). The district court[1] sentenced Ewert to 84 months in prison. Ewert appeals, challenging (1) the constitutionality of the United States Sentencing Guidelines (U.S.S.G. or Guidelines), (2) the district court's calculation of his advisory Guidelines range, (3) its imposition of an alternative sentence, and (4) the substantive reasonableness of the sentence. Having jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

         I. BACKGROUND

         On August 14, 2014, Colleen called 911 to report that Ewert had assaulted her in the early morning hours that day at their home in Davenport, Iowa. According to Colleen, Ewert was upset and began accusing Colleen of "talking to other people." Ewert forced Colleen into the basement of their home and held her there for approximately three hours, threatening her, "shak[ing] [her] head, " and "repeatedly hit[ting] [her] in the leg causing bruises." Among other threats, Colleen reported "Ewert told Colleen that she had two options: cut off her own hand or put two bullets in a gun, spin it, and pull the trigger."

         Ewert eventually let Colleen go without acting on the threat. Colleen "gave [Ewert] a double dose of Nyquil to make him sleep." Within the next two hours Colleen called the police, gathered her children, and escaped to her neighbor's home. Based on Colleen's report that Ewert "had multiple firearms at the residence, " the police "surrounded the residence" and treated the situation "as a barricaded suspect who was possibly armed." After an hour-long "stand-off, " Ewert was arrested.

         After the arrest, police obtained and executed a search warrant on the Ewert residence and located in the garage eight firearms and a large quantity of ammunition. Investigation revealed Ewert had purchased one of the firearms using the "gun permit, driver's license, and Form 4473 for a person with the last name of McCarthy." Investigation also revealed Ewert "was convicted in 2002 of felony eluding, " see Iowa Code § 321.279(3), and was thus prohibited from possessing firearms.

         In October 2014, a grand jury returned an indictment charging Ewert with making false statements during the purchase of a firearm, see 18 U.S.C. § 924(a)(1)(A); conspiracy "to commit felon in possession of a firearm, " see 18 U.S.C. §§ 371, 922(g); and being a felon in possession of firearms, see 18 U.S.C. §§ 922(g)(1), 924(a)(2). Several months later, Ewert pled guilty to making a false statement during the purchase of a firearm and being a felon in possession of firearms.

         At sentencing, the district court determined Ewert had a base offense level of 20, with two four-level enhancements for the specific offense characteristics of possessing between eight and twenty-four firearms and "us[ing] or possess[ing] any firearm or ammunition in connection with another felony offense." U.S.S.G. § 2K2.1(b)(1)(B), (6)(B). Ewert also received a three-level reduction for acceptance of responsibility. See U.S.S.G. § 3E1.1(a), (b). Based on the resulting offense level of 25 and Ewert's criminal history category of III, the district court determined Ewert's advisory Guidelines range was 70 to 87 months and sentenced Ewert to 84 months imprisonment and three years of supervised release. Ewert appeals.

         II. DISCUSSION

         A. Standards of Review

         "We review the district court's interpretation of the guidelines de novo, and its factual findings . . . for clear error." United States v. Howard, 759 F.3d 886, 889 (8th Cir. 2014). "When the guidelines are incorrectly applied, we remand for resentencing unless the error was harmless, such as when the district court would have imposed the same sentence absent the error." United States v. Idriss, 436 F.3d 946, 951 (8th Cir. 2006).

         We review the substantive reasonableness of a sentence for abuse of discretion. See United States v. Keys, 785 F.3d 1240, 1243 (8th Cir. 2015). "'On review, sentences within the advisory Guidelines range . . . are presumptively reasonable, '" id. (alteration in original) (quoting United States v. Solis-Bermudez, 501 F.3d 882, 884 (8th Cir. 2007)), but the "'district court abuses its discretion and imposes an unreasonable sentence when it fails to consider a relevant and significant factor, gives significant weight to an irrelevant or improper factor, or considers the appropriate factors but commits a ...


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