2013 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2013/14881 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 13

- 1199

___________ UNITED STATES OF AMERICA

v. JOHN GRZYMINSKI,

Appellant

_______________________ On Appeal from the District Court for the Eastern District of Pennsylvania D.C. Criminal No. 2

- 12

- cr - 00465

- 001 (Honorable Stewart Dalzell)

______________ Submitted Pursuant to Third Circuit LAR 34.1(a)

November 12, 2013 Before: HARDIMAN, SCIRICA, and NYGAARD, Circuit Judges

(F iled: November 14, 2013 )

_________________ OPINION OF THE COURT

_________________2

SCIRICA , Circuit Judge Defendant John Grzyminski ple a d ed guilty to possession of unregistered firearm s in violation of 26 U.S.C. § 5861(d)

. He appeals his sentence o f 30 months imprisonment, 3 years of supervised release, a fine of $500, and a special assessment of $ 100. Because his sentence was procedurally and substantive ly reasonable, we will affirm.
I. On May 9, 2012 , Grz y minski ’s mother, Catherine Wilson, retur ned to the ho use she shared with her son after a brief hospital stay

. Upon arriving, Wilson and her other son, Michael Grz y minski, discovered d efendant had openly displayed numerous guns

aroun d the house. Soon after, d efendant got into an argument with W ilson and Michael, which prompted W ilson to call the Warrington Township police. The police informed Wilson and Michael they could n ot remove the firearms because Grzyminski had a license to possess them. After the police left, Wilson and Michael noticed a pipe bomb sitting on the kitchen counter with a b utane light er nearby. Wilson called the police again. In addition to the Warrington police, the Philadelphia Police Department Bomb Disposal Unit and the Bureau of Alcohol, Tobacco, Firearms, and Explos ive s responded to the scene. After evacuating the neighbor hood , the Bomb Disposal Unit searched the house and discovered
two more pipe bombs in a spare bedroom upstairs

. Grzyminski left the scene d uring the Bomb Disposal Unit’s search, but t he Solebury T ownship police arrested him withou t incident the next day

. On September 17 , 201 2 , Gr z y minski ple a d ed guilty to one count of possession of3

unregistered firearms in violation of 26 U.S.C. § 5861(d) for possession of the three pipe bombs . At his plea hearin g, d efendant told the court he used pipe bombs f or recreational
purposes on July 4 th and New Year’s Eve

. 1 Based on his offense level and criminal history category, t he United States Probation Office in its Presentence Investigation Report calculated an ad visory Guidelines range of 30 to 37 months imprisonment. 2
At the sentenci ng hearing on January 4, 2013, Grzyminski requested a sentence of time served

— at the time, 8 months. He argued the Guidelines range was “excessive”
because he did not intend to hurt anyone and did not have a criminal history. (App. 20.) The Government contended a Guidelines sentence was appropriate b ased primarily on the circumstances of the offense

— in particular, leaving a pipe bomb near a lighter, which required law enforcement t o evacuate the neighborhood. After hearing f rom the Government, d efense counsel, and Grzyminski himself, the Di strict Court sentenced him
to 30 months imprisonment, 3 years of supervised release, a fine of $500, and a special assessment of $100

. This tim ely appeal followed. 3
II. Grzyminski contends the District Court’s Guidelines range sentence of 30 months imprisonment was procedurally and substantively unreasonable. He argues the sentence

1 In an interview with the Warrington police after his arrest, defendant said he used pipe bombs to hunt bears and threw them into lakes for entertainment.

2 Grzyminski had an adjusted offense level of 19 and a criminal history category of I.

3 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.4

was procedurally unreasonable because the court did not meaning fully consid er his personal characteristics and the circumstances of the offense . He contends the sentence was substantively unreasonable because the court did not reasonably apply the sentencing factors se t forth in 18 U.S.C. § 3553(a). As the p arty cha llenging the sentence, Grzyminski has the burden of showing unreasonableness. United States v. Tomko , 562 F.3d 558, 567 (3d Cir. 2009) (en banc)

. We review the procedural and substantive reasonableness of the District Court’s sentence
for abuse of discre tion. United States v. Begin , 696 F.3d 405, 411 (3d Cir. 2012) (citing Gall v. United States , 552 U.S. 38, 51 (2007) ). Our review of a district court’s sentencing decision has two steps. We first review the sentence for procedural error, wh ich requires ensuring the d istrict c ourt “ (1) cor rectly calculated the defendant’ s advisory Guidelines range, (2) appropriately considered any motions for a departure under the Guidelines, and (3) gave meaningful consideration to the sentencing factors set forth in 18 U.S.C. § 3553(a)

. ” Id. at 411 (citation omitted)

. I f the sentence i s procedurally sound, we then review for substantive reasonableness. Id. Under the highly deferential abuse of discretion standard, a sentence is substantively reasonable if “ ‘ the re cor d as a whole reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a)

. ’ ” Tomko , 562 F.3d at 568 (quoting United
States v. Grier , 475 F.3d 556, 571 (3d Cir. 2007) (en banc) )

. Turning first to the procedural reasonable ness of Grz y minski’s sentence, he does not argue the District C ourt incorrectly calculated his Guidelines range or improperly considered any motions for a departure. Accordingly, we only address his argument that5

the court did not give meaningful consider ation to the sentencing factors set forth in § 3553(a) , n amely, his personal charact eristics and the circumstances of t he offense

. Here, t he District Court c onsidered these factors in great depth during the sentencing hearing

. T he court raised de fendant’ s lack of criminal history and the severity of his offense in its initial interaction with d efense counsel. ( See App. 20 (“This is quite a puzzling matter to me because, on the one hand, your client has no criminal record to speak of, but, on the other ha nd, when he decided to go over the line, he did it b ig time.” ).) The court and defen se counsel then discussed this juxtaposition between the severity of the offense an d d efendant’s lack of criminal history for the next six pages of the sentencing transcri pt. ( Id

. at 20

– 21.) Finally, the court addressed these factors with Grzyminski himself be fore i mposing its sentence. ( Id

. at 22 ).
A lthough Grzyminski dis agrees with the weight the court a ccorded his personal characteristics and the circumstances of the crime, the record shows the court meani ngfully considered these factors in its sentencing decision

. B ecause the sentence was procedurally reasonable, w e evaluate whether it was su bstantive ly reasonable

. The record reflects the District Court’s “‘ rationa l and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).’” Tomko , 562 F.3d at 568 (quoting Grier , 475 F.3d at 571). The court took into account Gr z yminski’s lack of criminal history ,

w eighed this factor against other § 3553(a) fact ors, including the nature and circumstances of the crime and the need to protect the publ ic by deterring similar6

conduct, and concluded a sentence at the bottom of the Guidelines range was justified

. 4
D efendant argued his crime should be punished less s everely because he intended to use the pipe bombs for recreational , not criminal, purposes . Despite defendant’s characterization of his actions, the court was troubled b y several aspects of the offense

. T he court highlighted that Grzyminski placed three pipe bombs in a home in a residential area and left one of the bombs near a butane lighter

. ( App. 20, 22

. ) In addition, the court noted h is actions “horrified” his mother and “ hugely affected” his neighbors , as they had to evacuate their homes while law enforcement searched defendant’s house and disabled
the bombs

. ( Id. at 22.) T he court also stressed the need to protect the public by deter ring others from engaging in similar conduct

. ( S ee i d

. (“[W]e absolutely have to protect the public from crimes li ke this and deter people, whether because [using pipe bombs is] amusing or people think it’s amusing.”). )

4 In an argument first raised on appeal, Grzyminski contends the current Guidelines r ange is substantively unreasonable because it is not based on empirical data or experience. ( Br

. Appellant 17

– 18 ( citing Kimb rough v. United States , 552 U.S. 85 (2007)). ) While not entirely clear, his argument appears to be that the current Guidelines ra n ge is unreasonable because the firearm offense to which he pleaded guilty was punished less severely in the past. ( Id. ) Because d efendant failed to raise this objection at sentenc ing , we review for plain error. United States v. Couch , 291 F.3d 251, 252

– 53 (3d Cir. 2002)

. Defendant’s argument rests on an incorrect reading of Kimbrough . As we explained in United States v. Lopez

- Reyes , 589 F.3d 667 (3d Cir. 2009), “ Kimbrough does not require a district court to reject a particular Guidelines range where that court does not, in fact, have disagreement with the Guideline at issue

. ” Id. at 671 (emphasis added). The District Court never, at any time during Grzyminski’s sentencing, voiced a policy disagreement with the sentencing Guideline applicable to a co nviction for possession of an unregistered firearm. Nor did the District Court commit plain error in failing to consider the historical development of the unregistered firearm sentencing Guideline. See id. (noting that “a district court is not required t o engage in ‘independent analysis’ of the empirical justifications and deliberative undertakings that led to a particular Guideline. ”).7

Based on the § 3553(a) factors , t he court found sentencing d efendant at the bottom of the Guidelines range was “ warranted.” ( Id. at 22.) Because th is 30

- month s entence “falls within the broad range of possible sentences that can be considered reasonable in light of the § 3553(a) factors, we must affirm.” United States v. Wise , 515 F.3d 207, 218 (3d Cir. 2008).
III. For the foregoing reasons, we aff irm the judgment of conviction and sentence

.