Case: 19-10627 Date Filed: 10/31/2019 Page: 1 of 10
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-10627 Non-Argument Calendar ________________________
D.C. Docket No. 1:18-cr-00246-KD-MU-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PHAY LAM SOUPHANTHOG,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Alabama ________________________
(October 31, 2019)
Before JORDAN, NEWSOM and DUBINA, Circuit Judges.
PER CURIAM: Case: 19-10627 Date Filed: 10/31/2019 Page: 2 of 10
Appellant Phay Souphanthog appeals his convictions and sentences for
possession of firearms by a convicted felon, in violation of 18 U.S.C. § 922(g). On
appeal, Souphanthog first argues that the government failed to present sufficient
evidence that could convince a reasonable fact-finder that he knowingly possessed
the firearm found on the passenger floorboard of the vehicle, as charged in Count
Two, or that he knowingly possessed the firearm thrown from the passenger
window, as charged in Count Three. Second, he argues that the district court
abused its discretion by imposing consecutive 84-month sentences for Counts Two
and Three totaling 168 months’ imprisonment.
I.
We review de novo whether the evidence is sufficient to support a
conviction. United States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009).
In reviewing the sufficiency of the evidence, we determine whether the evidence,
construed in the light most favorable to the government, would permit the trier of
fact to find the defendant guilty beyond a reasonable doubt. Id. at 1284-85. “We
will not reverse unless no reasonable trier of fact could find guilt beyond a
reasonable doubt.” United States v. Farley, 607 F.3d 1294, 1333 (11th Cir. 2010).
The standard for sufficiency of evidence is the same “regardless of whether the
evidence is direct or circumstantial.” United States v. Isnadin, 742 F.3d 1278,
1303 (11th Cir. 2014) (quotation marks omitted). “However, [w]here the
2 Case: 19-10627 Date Filed: 10/31/2019 Page: 3 of 10
[G]overnment relies on circumstantial evidence, reasonable inferences, and not
mere speculation, must support the jury’s verdict.” Id. (quotation marks omitted).
“[W]e assume that the jury made all credibility choices in support of the verdict.”
Jiminez, 564 F.3d at 1285. We may not review determinations made by the jury as
to the credibility of witness testimony unless such testimony is “incredible as a
matter of law.” United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997)
(quoting United States v. Hewitt, 663 F.2d 1381, 1385 (11th Cir. 1981)).
Testimony is incredible as a matter of law only when it is “unbelievable on its
face” and relates to “facts that the witness physically could not have possibly
observed or events that could not have occurred under the laws of nature.” Id. at
1325 (quotations marks omitted) (alterations omitted).
Pursuant to 18 U.S.C. § 922(g), it is unlawful for a convicted felon to
possess a firearm. 18 U.S.C. § 922(g). In turn, pursuant to § 924(a)(2), a person
who “knowingly violates” § 922(g) is subject to up to ten years in prison. Id.
§ 924(a)(2). Accordingly, to sustain a conviction for possession of a firearm by a
convicted felon under 18 U.S.C. § 922(g), the government traditionally has been
required to prove three elements: (1) the defendant was a convicted felon; (2) the
defendant was in knowing possession of a firearm; and (3) the firearm was in or
affected interstate commerce. See United States v. Wright, 392 F.3d 1269, 1273
(11th Cir. 2004). The Supreme Court recently clarified that the word “knowingly”
3 Case: 19-10627 Date Filed: 10/31/2019 Page: 4 of 10
in § 924(a)(2) modifies both the status and possession element, meaning that the
government must prove that the defendant both knowingly possessed the firearm
and knew that he was in a class of persons barred from possessing a firearm.
Rehaif v. United States, ___ U.S. ___, 139 S. Ct. 2191, 2195-96 (2019).
“[T]he term ‘knowingly’ means that the act was performed voluntarily and
intentionally, and not because of a mistake or accident.” United States v.
Woodruff, 296 F.3d 1041, 1047 (11th Cir. 2002). “Possession may be actual or
constructive, joint or sole.” United States v. Boffil-Rivera, 607 F.3d 736, 740 (11th
Cir. 2010) (quotation marks omitted). “Constructive possession of a firearm exists
when a defendant does not have actual possession but instead knowingly has the
power or right, and intention to exercise dominion and control over the firearm.”
United States v. Perez, 661 F.3d 568, 576 (11th Cir. 2011) (per curiam). To
establish constructive possession of a firearm, the government must prove “through
either direct or circumstantial evidence that the defendant (1) was aware or knew
of the firearm’s presence and (2) had the ability and intent to later exercise
dominion and control over that firearm.” Id.
As an initial matter, the government presented an argument based on the
Supreme Court’s recent holding in Rehaif. Because this issue was not addressed
by Souphanthog, it is abandoned and we will not consider it. See United States v.
Levy, 379 F.3d 1241, 1242 (11th Cir. 2004) (per curiam) (noting that a legal claim
4 Case: 19-10627 Date Filed: 10/31/2019 Page: 5 of 10
or argument that has not been briefed before our court is deemed abandoned, and
we will not address the merits).
When viewed in the light most favorable to the government, we conclude
from the record that there was ample evidence for the jury to conclude that
Souphanthog knowingly possessed the firearms involved in the two separate
incidents. As to Count Two, the government presented the testimony of Shawna
Murphy that Souphanthog placed the gun under the seat and the testimony of
Deputy Gant that the firearm was found within an arm’s reach of the driver’s side
of the vehicle. This testimony was sufficient for a reasonable jury to conclude that
Souphanthog constructively possessed the firearm. As to Count Three, there was
also sufficient evidence for a reasonable jury to find that Souphanthog knowingly
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Case: 19-10627 Date Filed: 10/31/2019 Page: 1 of 10
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-10627 Non-Argument Calendar ________________________
D.C. Docket No. 1:18-cr-00246-KD-MU-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PHAY LAM SOUPHANTHOG,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Alabama ________________________
(October 31, 2019)
Before JORDAN, NEWSOM and DUBINA, Circuit Judges.
PER CURIAM: Case: 19-10627 Date Filed: 10/31/2019 Page: 2 of 10
Appellant Phay Souphanthog appeals his convictions and sentences for
possession of firearms by a convicted felon, in violation of 18 U.S.C. § 922(g). On
appeal, Souphanthog first argues that the government failed to present sufficient
evidence that could convince a reasonable fact-finder that he knowingly possessed
the firearm found on the passenger floorboard of the vehicle, as charged in Count
Two, or that he knowingly possessed the firearm thrown from the passenger
window, as charged in Count Three. Second, he argues that the district court
abused its discretion by imposing consecutive 84-month sentences for Counts Two
and Three totaling 168 months’ imprisonment.
I.
We review de novo whether the evidence is sufficient to support a
conviction. United States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009).
In reviewing the sufficiency of the evidence, we determine whether the evidence,
construed in the light most favorable to the government, would permit the trier of
fact to find the defendant guilty beyond a reasonable doubt. Id. at 1284-85. “We
will not reverse unless no reasonable trier of fact could find guilt beyond a
reasonable doubt.” United States v. Farley, 607 F.3d 1294, 1333 (11th Cir. 2010).
The standard for sufficiency of evidence is the same “regardless of whether the
evidence is direct or circumstantial.” United States v. Isnadin, 742 F.3d 1278,
1303 (11th Cir. 2014) (quotation marks omitted). “However, [w]here the
2 Case: 19-10627 Date Filed: 10/31/2019 Page: 3 of 10
[G]overnment relies on circumstantial evidence, reasonable inferences, and not
mere speculation, must support the jury’s verdict.” Id. (quotation marks omitted).
“[W]e assume that the jury made all credibility choices in support of the verdict.”
Jiminez, 564 F.3d at 1285. We may not review determinations made by the jury as
to the credibility of witness testimony unless such testimony is “incredible as a
matter of law.” United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997)
(quoting United States v. Hewitt, 663 F.2d 1381, 1385 (11th Cir. 1981)).
Testimony is incredible as a matter of law only when it is “unbelievable on its
face” and relates to “facts that the witness physically could not have possibly
observed or events that could not have occurred under the laws of nature.” Id. at
1325 (quotations marks omitted) (alterations omitted).
Pursuant to 18 U.S.C. § 922(g), it is unlawful for a convicted felon to
possess a firearm. 18 U.S.C. § 922(g). In turn, pursuant to § 924(a)(2), a person
who “knowingly violates” § 922(g) is subject to up to ten years in prison. Id.
§ 924(a)(2). Accordingly, to sustain a conviction for possession of a firearm by a
convicted felon under 18 U.S.C. § 922(g), the government traditionally has been
required to prove three elements: (1) the defendant was a convicted felon; (2) the
defendant was in knowing possession of a firearm; and (3) the firearm was in or
affected interstate commerce. See United States v. Wright, 392 F.3d 1269, 1273
(11th Cir. 2004). The Supreme Court recently clarified that the word “knowingly”
3 Case: 19-10627 Date Filed: 10/31/2019 Page: 4 of 10
in § 924(a)(2) modifies both the status and possession element, meaning that the
government must prove that the defendant both knowingly possessed the firearm
and knew that he was in a class of persons barred from possessing a firearm.
Rehaif v. United States, ___ U.S. ___, 139 S. Ct. 2191, 2195-96 (2019).
“[T]he term ‘knowingly’ means that the act was performed voluntarily and
intentionally, and not because of a mistake or accident.” United States v.
Woodruff, 296 F.3d 1041, 1047 (11th Cir. 2002). “Possession may be actual or
constructive, joint or sole.” United States v. Boffil-Rivera, 607 F.3d 736, 740 (11th
Cir. 2010) (quotation marks omitted). “Constructive possession of a firearm exists
when a defendant does not have actual possession but instead knowingly has the
power or right, and intention to exercise dominion and control over the firearm.”
United States v. Perez, 661 F.3d 568, 576 (11th Cir. 2011) (per curiam). To
establish constructive possession of a firearm, the government must prove “through
either direct or circumstantial evidence that the defendant (1) was aware or knew
of the firearm’s presence and (2) had the ability and intent to later exercise
dominion and control over that firearm.” Id.
As an initial matter, the government presented an argument based on the
Supreme Court’s recent holding in Rehaif. Because this issue was not addressed
by Souphanthog, it is abandoned and we will not consider it. See United States v.
Levy, 379 F.3d 1241, 1242 (11th Cir. 2004) (per curiam) (noting that a legal claim
4 Case: 19-10627 Date Filed: 10/31/2019 Page: 5 of 10
or argument that has not been briefed before our court is deemed abandoned, and
we will not address the merits).
When viewed in the light most favorable to the government, we conclude
from the record that there was ample evidence for the jury to conclude that
Souphanthog knowingly possessed the firearms involved in the two separate
incidents. As to Count Two, the government presented the testimony of Shawna
Murphy that Souphanthog placed the gun under the seat and the testimony of
Deputy Gant that the firearm was found within an arm’s reach of the driver’s side
of the vehicle. This testimony was sufficient for a reasonable jury to conclude that
Souphanthog constructively possessed the firearm. As to Count Three, there was
also sufficient evidence for a reasonable jury to find that Souphanthog knowingly
possessed the firearm based on Officer Byrd’s testimony that he saw Souphanthog
throw the firearm out the window. Moreover, nothing about the testimony
supporting Counts Two or Three was incredible as a matter of law nor
unbelievable on its face.
Accordingly, we hold that there was sufficient evidence to support the jury’s
determination that Souphanthog knowingly possessed the firearms in Counts Two
and Three.
II.
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We review the reasonableness of a sentence under a deferential
abuse-of-discretion standard, meaning that we will sometimes “affirm the district
court even though we would have gone the other way had it been our call.” United
States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc). “The party
challenging the sentence bears the burden to show that it is unreasonable in light of
the record and the [18 U.S.C.] § 3553(a) factors.” United States v. Tome, 611 F.3d
1371, 1378 (11th Cir. 2010).
When reviewing a sentence’s reasonableness, we must ensure, first, that the
district court did not commit a significant procedural error. Gall v. United States,
552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). We ordinarily consider legal issues
de novo, review factual findings for clear error, and apply 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). However, failure to preserve an
objection for procedural reasonableness at sentencing means that we may only
review for plain error. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th
Cir. 2014). Under plain error review, we may, at our discretion, correct an error
where “(1) an error occurred; (2) the error was plain; (3) it affected [the
defendant’s] substantial rights; and (4) it seriously affected the fairness of the
judicial proceedings.” United States v. Gresham, 325 F.3d 1262, 1265 (11th Cir.
2003). An error cannot be plain if the error is not obvious or clear under the
6 Case: 19-10627 Date Filed: 10/31/2019 Page: 7 of 10
current law as established by our court or the Supreme Court. See United States v.
Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).
Section 3584(a) provides that, “[i]f multiple terms of imprisonment are
imposed on a defendant at the same time . . . , the terms may run concurrently or
consecutively.” 18 U.S.C. § 3584(a). Further, in determining whether the
sentences should be imposed consecutively or concurrently, § 3584(b) directs
district courts to utilize the 18 U.S.C. § 3553(a) factors. Id. § 3584(b). The
Guidelines provide that “the court shall determine the total punishment and shall
impose that total punishment on each such count, except to the extent otherwise
required by law.” U.S.S.G. § 5G1.2(b). The Guidelines further state that, “[i]f the
sentence imposed on the count carrying the highest statutory maximum is less than
the total punishment, then the sentence imposed on one or more of the other counts
shall run consecutively, but only to the extent necessary to produce a combined
sentence equal to the total punishment.” Id. § 5G1.2(d).
Under the Guidelines, “[a]ll counts involving substantially the same harm
shall be grouped together into a single [g]roup.” U.S.S.G. § 3D1.2. Grouping of
counts under § 3D1.2 does not preclude a district court from imposing consecutive
sentences on each count. See United States v. Bonilla, 579 F.3d 1233, 1245 (11th
Cir. 2009) (holding that, “[a]lthough the underlying offenses were grouped
7 Case: 19-10627 Date Filed: 10/31/2019 Page: 8 of 10
together . . . [t]he district court’s imposition of consecutive sentences” was not an
abuse of discretion).
Once we determine that the sentence is procedurally sound, we then examine
whether the sentence was substantively reasonable in light of the totality of the
circumstances and the 18 U.S.C. § 3553(a) factors. United States v. Cubero, 754
F.3d 888, 892 (11th Cir. 2014). The district court must impose a sentence
“sufficient, but not greater than necessary to comply with the purposes” listed in 18
U.S.C. § 3553(a)(2), including the need to reflect the seriousness of the offense,
promote respect for the law, provide just punishment for the offense, deter criminal
conduct, and protect the public from the defendant’s future criminal conduct. 18
U.S.C. § 3553(a)(2). The district court must also consider the nature and
circumstances of the offense, the history and characteristics of the defendant, the
kinds of sentences available, the applicable guidelines range, the pertinent policy
statements of the Sentencing Commission, the need to avoid unwarranted
sentencing disparities, and the need to provide restitution to victims. 18 U.S.C.
§ 3553(a)(1), (3)-(7).
The weight given to any specific § 3553(a) factor is “committed to the sound
discretion of the district court.” United States v. Clay, 483 F.3d 739, 743 (11th Cir.
2007) (quotation marks omitted). Further, the district court is permitted to attach
greater weight to one § 3553(a) factor over others. United States v. Overstreet, 713
8 Case: 19-10627 Date Filed: 10/31/2019 Page: 9 of 10
F.3d 627, 638 (11th Cir. 2013). However, we have determined that a “district
court abuses its discretion when it (1) fails to afford consideration to relevant
factors that were due significant weight, (2) gives significant weight to an improper
or irrelevant factor, or (3) commits a clear error of judgment in considering the
proper factors.” Irey, 612 F.3d at 1189. Moreover, a district court’s unjustified
reliance on any one § 3553(a) factor may indicate an unreasonable sentence. See
United States v. Crisp, 454 F.3d 1285, 1292 (11th Cir. 2006). Although we do not
presume that a sentence falling within the guideline range is reasonable, we
ordinarily expect such a sentence to be reasonable. United States v. Hunt, 526 F.3d
739, 746 (11th Cir. 2008).
We review Souphanthog’s procedural reasonableness challenge for plain
error because he did not raise the issue in the district court. First, the probation
officer did, in fact, group his counts together when calculating his base offense
level, and the district court adopted those calculations. Second, to the extent that
Souphanthog is arguing that, because the counts were grouped, the sentences must
run concurrently, we have determined that grouping of counts under § 3D1.2 does
not preclude a district court from imposing consecutive sentences on each count.
See Bonilla, 579 F.3d at 1245.
As to Souphanthog’s substantive reasonableness challenge, we conclude that
the district court did not abuse its discretion by imposing consecutive sentences
9 Case: 19-10627 Date Filed: 10/31/2019 Page: 10 of 10
totaling 168 months, which was at the low end of the guideline range. The court
properly followed the statutory directive under 18 U.S.C. § 3584(a) and concluded
that the 168-month total sentence was appropriate, properly ordering the sentences
to run consecutively to achieve the total punishment given the statutory maximum.
Further, the district court was within its discretion to place greater weight on
Souphanthog’s violent criminal history because it was extensive, involving many
heinous offenses, including murder and attempted murder. Accordingly, we affirm
Souphanthog’s convictions and sentences.
AFFIRMED.