USA v. Bernard Shaw

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11505
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERNARD SHAW,
a.k.a. BERNARD LAQUAI SHAW,
a.k.a. BERNARD L SHAW,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
USCA11 Case: 23-11505 Document: 21-1 Date Filed: 04/24/2024 Page: 1 of 11

-- 1 of 11 --

2 Opinion of the Court 23-11505
D.C. Docket No. 4:22-cr-00018-CDL-MSH-2
____________________
Before L UCK , ANDERSON, and H ULL , Circuit Judges.
PER CURIAM:
After pleading guilty, defendant Bernard Shaw appeals his
60-month total sentence for two counts of possession of a firearm
by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). At sentencing, the district court imposed a 14-month
upward variance from the top of the advisory guidelines range of
37 to 46 months. On appeal, Shaw argues that his 60-month
sentence is substantively unreasonable because the district court
improperly weighed the sentencing factors, focused primarily on
his history, characteristics and offense conduct, and failed to give
adequate consideration to the advisory guidelines range. After
review, we affirm Shaw’s sentence.
I. BACKGROUND FACTS
A. April 2022 Traffic Stop
In April 2022, police officers observed a black 2007 Ford
Mustang with illegally tinted windows. They also smelled a strong
odor of marijuana coming from the Mustang. The officers
attempted to pull the vehicle over, but the driver refused to stop.
Eventually, the driver stopped and parked the vehicle, and the
driver and the passenger exited the vehicle.
The officers approached them in the yard of the house
where they parked. The officers asked the driver, Tyquerrious
USCA11 Case: 23-11505 Document: 21-1 Date Filed: 04/24/2024 Page: 2 of 11

-- 2 of 11 --

23-11505 Opinion of the Court 3
Ford, for his license. Ford said he did not have his license with him,
refused to identify himself, and attempted to walk toward the
house. Ford was detained.
One officer approached the passenger side of the vehicle to
initiate a search. Defendant Shaw, who had exited from the
passenger side, leaned against the passenger door to prevent the
officer from opening it. The officer grabbed Shaw’s wrist, but
Shaw escaped the officer’s grasp and fled the scene.
A search of the car revealed: (1) a loaded Glock Model 17
pistol, equipped with an extended 31-round magazine, in the
driver’s seat; (2) a green bookbag containing a Springfield XD
semiautomatic pistol and two bags of suspected marijuana in the
front passenger seat; and (3) a black bookbag containing three
vacuum-sealed bags of suspected marijuana, an electronic scale,
and approximately 100 small baggies in the backseat. The loaded
Glock Model 17 was illegally modified with an automatic selector
switch.1 The Springfield XD semiautomatic pistol was a stolen
weapon.
Ford was taken to the Muscogee County Jail, and officers
attempted to identify and locate defendant Shaw. Following Ford’s
arrest, he claimed ownership of the black bookbag and its contents.
1 An automatic selector switch allows the operator of the firearm to
continuously fire bullets with one pull of the trigger.
USCA11 Case: 23-11505 Document: 21-1 Date Filed: 04/24/2024 Page: 3 of 11

-- 3 of 11 --

4 Opinion of the Court 23-11505
B. July 2022 Execution of Arrest Warrants
On April 26, 2022, officers secured arrest warrants for
defendant Shaw for: (1) possession of marijuana with intent to
distribute; (2) possession of a firearm during the commission of
certain crimes; (3) theft by receiving a stolen firearm; (4) possession
of dangerous weapon (machine gun); (5) possession of drug related
objects; and (5) obstruction of an officer.
In July 2022, more than two months after officers secured
Shaw’s arrest warrants, Shaw was found in an AutoZone parking
lot in Columbus, Georgia. Shaw was sitting in the passenger seat
of a white Dodge Challenger. Shaw was detained. Officers found
a loaded black Del-Ton 5.56 semiautomatic rifle in the passenger
seat where Shaw was sitting. The rifle was modified so that it
would hold two taped-together 30-round magazines. The rifle was
loaded with 37 rounds of ammunition and was outfitted with a
brass catcher.2
Shaw was arrested and the rifle was seized.
C. Indictment and Guilty Plea
In August 2022, a federal indictment charged Shaw with two
counts of possession of a firearm by a convicted felon, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The first count (“Count 3”)
2 A brass catcher “is a device designed to capture spent bullet casings, often
made of brass, as they are ejected from a firearm.”
USCA11 Case: 23-11505 Document: 21-1 Date Filed: 04/24/2024 Page: 4 of 11

-- 4 of 11 --

23-11505 Opinion of the Court 5
was the firearm possession in April 2022 and the second count
(“Count 4”) was the firearm possession in July 2022.
On December 7, 2022, Shaw pleaded guilty to both counts
of possession of a firearm by a convicted felon without a written
plea agreement.
D. Presentence Investigation Report
Shaw’s presentence investigation report (“PSI”) calculated a
total offense level of 19 and a criminal history category of III. Shaw
received two criminal points for two prior felony convictions for (1)
receiving stolen property over $500 and driving without a license
and (2) three counts of receiving stolen property over $500, two
counts of theft by unlawful taking (motor vehicle), two counts of
fleeing or evading police in the second degree, and leaving the
scene of an accident. Shaw received two additional criminal
history points because he committed the instant offenses while on
probation, for a total criminal history score of four. Shaw also had
a juvenile criminal history, for which he received no criminal
history points, consisting of adjudications of delinquency for
(1) aggravated child molestation and aggravated sodomy of a nine-
year-old girl (when he was 11 years old) and (2) burglary (when he
was 15 years old), and (3) theft by taking (when he was 15 years
old).
Shaw’s advisory guidelines range was 37 to 46 months’
imprisonment. The PSI stated that the district court could
consider, in determining whether Shaw merited an upward-
variance sentence: (1) the nature of his offense; (2) his significant
USCA11 Case: 23-11505 Document: 21-1 Date Filed: 04/24/2024 Page: 5 of 11

-- 5 of 11 --

6 Opinion of the Court 23-11505
and dangerous criminal history; (3) his continued criminal conduct
while on court supervision; and (4) his personal history.
The PSI reported that according to documents from the
Muscogee County Sheriff’s office, Shaw was “a verified member of
the criminal street gang Zohannon.” While Shaw dropped out of
high school, he informed the probation officer that he obtained his
G.E.D. while in a youth detention center in Dalton, Georgia. Shaw
reported that he had a full-time job at the Kia assembly plant in
West Point, Georgia, from February to May 2022. Shaw reported
that he supported himself by working odd jobs and uploading his
rap music to various internet sites.
E. Sentencing
On April 13, 2023, the district court held a sentencing
hearing. Shaw filed no written objection to the final PSI. And at
sentencing, Shaw’s counsel stated she had no objections to the
guidelines calculations in the PSI. But as to the PSI’s discussion of
factors that might warrant an upward variance, Shaw’s counsel
stated that the majority of his criminal history occurred when he
was a juvenile and that he was already adjudicated for that conduct.
Shaw’s counsel stated that his two prior felony convictions that
were factored into his criminal history category resulted “from
being around the wrong people in Kentucky.” Shaw’s counsel also
noted that the instant offenses were “his very first violent crime[s]
involving a firearm.”
Shaw’s counsel emphasized that he was only 23 years old,
had a young child, and that once he was released, he intended to
USCA11 Case: 23-11505 Document: 21-1 Date Filed: 04/24/2024 Page: 6 of 11

-- 6 of 11 --

23-11505 Opinion of the Court 7
find a job and leave Columbus for somewhere he could start fresh
and get back on the right path. Shaw apologized for his actions and
expressed his desire to be there for his daughter in the long run.
The district court inquired into: (1) Shaw’s education and
employment history; (2) Shaw’s purported gang membership;
(3) his reasons for possessing the firearms; and (4) the government’s
position on an upward variance. After this discussion, the district
court noted that it had considered the advisory sentencing
guidelines range and found it “inadequate.” The district court
stated that it was choosing to vary upward based upon the factors
in 18 U.S.C. § 3553(a), “particularly the nature and circumstances
of the offense and the history and characteristics of [Shaw].” The
district court determined that an upward-variance sentence was
necessary to accomplish the purpose of the § 3553(a) factors as well
as to protect the public. The district court sentenced Shaw to 60-
month terms of imprisonment on each conviction to run
concurrently. Shaw objected to the procedural and substantive
reasonableness of his sentence.
II. DISCUSSION
On appeal, Shaw now challenges only the substantive
reasonableness of his sentence.3
3 On appeal, Shaw does not challenge his convictions.
USCA11 Case: 23-11505 Document: 21-1 Date Filed: 04/24/2024 Page: 7 of 11

-- 7 of 11 --

8 Opinion of the Court 23-11505
A. Substantive Reasonableness
“We review the substantive reasonableness of a sentence for
abuse of discretion, considering the totality of the circumstances.”
United States v. Oudomsine, 57 F.4th 1262, 1266 (11th Cir. 2023). As
the party challenging the sentence, Shaw bears the burden of
showing that the district court’s chosen sentence was an abuse of
discretion based on the record and the 18 U.S.C. § 3553(a) factors.4
See id.; United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008).
In reviewing whether the district court abused its discretion,
we will not reverse a sentence solely because we could reasonably
conclude that a different sentence was more appropriate. Gall v.
United States, 552 U.S. 38, 51 (2007). Rather, we will vacate a
sentence only if we are left with a “definite and firm conviction that
the district court committed a clear error of judgment in weighing
the § 3553(a) factors by arriving at a sentence that lies outside the
range of reasonable sentences dictated by the facts of the case.”
4 The § 3553(a) sentencing factors include: (1) the nature and circumstances of
the offense and the history and characteristics of the defendant; (2) the need
for the sentence to reflect the seriousness of the offense, to promote respect
for the law, and to provide just punishment for the offense; (3) to afford
adequate deterrence to criminal conduct; (4) to protect the public from further
crimes of the defendant; (5) the need to provide the defendant with
educational or vocational training or medical care; (6) the applicable
Sentencing Guidelines range and the kinds of sentences available; (7) the
pertinent policy statements of the Sentencing Commission; (8) the need to
avoid unwarranted sentencing disparities; and (9) the need to provide
restitution to the victims. 18 U.S.C. § 3553(a); Gall v. United States, 552 U.S. 38,
50 n.6 (2007).
USCA11 Case: 23-11505 Document: 21-1 Date Filed: 04/24/2024 Page: 8 of 11

-- 8 of 11 --

23-11505 Opinion of the Court 9
United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc)
(quotation marks omitted).
“The weight given to any specific § 3553(a) factor is
committed to the sound discretion of the district court.” United
States v. Johnson, 803 F.3d 610, 618 (11th Cir. 2015). While the
district court must consider all § 3553(a) factors, it is permitted to
attach “great weight” to one factor over others. United States v.
Overstreet, 713 F.3d 627, 638 (11th Cir. 2013) (quotation marks
omitted). Additionally, “[p]lacing substantial weight on a
defendant’s criminal record is entirely consistent with § 3553(a)
because five of the factors it requires a court to consider are related
to criminal history.” United States v. Rosales-Bruno, 789 F.3d 1249,
1263 (11th Cir. 2015).
In imposing an upward variance, the district court is
permitted to “consider conduct that a probation officer already had
considered in calculating the defendant’s advisory guidelines
range.” Johnson, 803 F.3d at 619 (quotation marks omitted). The
district court may impose an upward variance if it concludes that
the guideline range “understated” a defendant’s criminal history.
United States v. Osorio-Moreno, 814 F.3d 1282, 1288 (11th Cir. 2016).
The district court generally has “broad leeway in deciding how
much weight to give to prior crimes the defendant has committed.”
Rosales-Bruno, 789 F.3d at 1261.
B. Shaw’s 60-Month Sentence
On appeal, Shaw argues his 60-month sentence is
substantively unreasonable because the district court improperly
USCA11 Case: 23-11505 Document: 21-1 Date Filed: 04/24/2024 Page: 9 of 11

-- 9 of 11 --

10 Opinion of the Court 23-11505
weighed the § 3553(a) sentencing factors, focused primarily on his
history, characteristics, and offense conduct, and failed to give
adequate consideration to the advisory guidelines range. Shaw
contends that his guidelines range adequately accounted for his
conduct and criminal history and therefore, the district court’s
upward variance constitutes an abuse of discretion.
Shaw has not shown that the 14-month upward variance is
substantively unreasonable. During Shaw’s sentencing hearing, the
district court stated that it had considered the § 3553(a) factors and
the advisory guidelines range of 37 to 46 months’ imprisonment.
In varying upward, the district court relied on the following: (1) the
nature and circumstances of Shaw’s two instant firearm offenses;
(2) Shaw’s history and characteristics; and (3) the need to protect
the public. The district court was entitled to give significant weight
to these factors. See 18 U.S.C. § 3553(a)(1); Johnson, 803 F.3d at 618.
Moreover, the district court did not commit a clear error of
judgment in concluding that a sentence within the advisory
guidelines range was inadequate in light of those factors, which
included Shaw’s commission of two § 922(g) firearm offenses
within three months; his attempt to prevent officers from searching
the Ford Mustang; his subsequent flight from the officers; his
possession of both extended magazines and a brass catcher; and his
pattern of criminal activity, which included crimes that were not
assessed criminal-history points because of his status as a juvenile.
See Johnson, 803 F.3d at 618; Rosales-Bruno, 789 F.3d at 1261.
USCA11 Case: 23-11505 Document: 21-1 Date Filed: 04/24/2024 Page: 10 of 11

-- 10 of 11 --

23-11505 Opinion of the Court 11
Here, there is ample evidence in Shaw’s background and
relevant conduct to implicate strongly the need to protect the
public, for deterrence, and to promote respect for the law. See 18
U.S.C. § 3553(a)(2)(A), (a)(2)(B), (a)(2)(C).
III. CONCLUSION
For these reasons, we conclude that Shaw has not shown
that his 60-month sentence is substantively unreasonable. We
therefore affirm.
AFFIRMED.
USCA11 Case: 23-11505 Document: 21-1 Date Filed: 04/24/2024 Page: 11 of 11

-- 11 of 11 --