United States v. Sathon Evans , 699 F.3d 858 ( 2012 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 12a0385p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 11-3460
v.
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Defendant-Appellant. -
SATHON EVANS,
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Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 1:10-cr-83-1—Sandra S. Beckwith, District Judge.
Argued: April 17, 2012
Decided and Filed: November 15, 2012
Before: GIBBONS and SUTTON, Circuit Judges, and DUGGAN, District Judge.*
_________________
COUNSEL
ARGUED: Kevin M. Schad, FEDERAL PUBLIC DEFENDER’S OFFICE, Cincinnati,
Ohio, for Appellant. Christopher K. Barnes, ASSISTANT UNITED STATES
ATTORNEY, Cincinnati, Ohio, for Appellee. ON BRIEF: Kevin M. Schad, FEDERAL
PUBLIC DEFENDER’S OFFICE, Cincinnati, Ohio, for Appellant. Christopher K.
Barnes, ASSISTANT UNITED STATES ATTORNEY, Cincinnati, Ohio, for Appellee.
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OPINION
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JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Sathon Evans
pled guilty to being a felon in possession of a firearm and was sentenced to 92 months’
imprisonment. When calculating his base offense level under the United States
*
The Honorable Patrick J. Duggan, United States District Judge for the Eastern District of
Michigan, sitting by designation.
1
No. 11-3460 United States v. Evans Page 2
Sentencing Guidelines, the district court determined that Evans’s 2004 Ohio conviction
for trafficking in cocaine was a controlled substance offense and that his 2000 Ohio
conviction for knowingly assaulting a police officer was a crime of violence as defined
under the Guidelines and, accordingly, applied a four-level enhancement to Evans’s base
offense level pursuant to U.S.S.G. § 2K2.1(a)(2). On appeal, Evans argues that this four-
level enhancement was not warranted, claiming that his assault conviction under Ohio
Revised Code § 2903.13(A) does not categorically qualify as a crime of violence and
that his trafficking in cocaine conviction under Ohio Revised Code § 2925.03(A)(1) does
not categorically qualify as a controlled substance offense. He also argues that his
sentence is substantively unreasonable. For the reasons that follow, we affirm the
sentence imposed by the district court.
I.
On April 22, 2010, Cincinnati Police Department officers on a mountain bike
patrol observed a person—later identified as Sathon Evans—sitting on a park bench after
the park was closed. The officers approached Evans to investigate why he was in the
park after hours, but before he noticed them, Evans got up from the bench and
approached a vehicle that had stopped on a street adjacent to the park. While Evans was
talking to the occupants of the vehicle, he became aware of the approaching police
officers and fled. The officers gave chase, and during the pursuit, they observed Evans
holding a pistol in his hand. Before he was apprehended in an alley, officers saw Evans
throw the gun on top of a building. Evans was arrested, and the firearm, a loaded .45-
caliber semiautomatic handgun, was recovered.
Evans was charged with being a felon in possession of a firearm, in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2), and pled guilty to the offense. Prior to sentencing,
a probation officer prepared a presentence investigation report (“PSR”). Having
concluded that Evans had at least two prior felony convictions of either a crime of
violence or a controlled substance offense, the probation officer calculated Evans’s base
offense level as 24 pursuant to U.S.S.G. §§ 2K2.1(a)(2) and 4B1.2. After several
adjustments were applied, Evans’s total offense level was 23. The PSR indicated that
No. 11-3460 United States v. Evans Page 3
Evans had 16 criminal history points, placing him in a criminal history category of VI.
This resulted in a recommended sentence of 92 to 115 months’ imprisonment.
Evans objected to the probation officer’s determination that his 2004 Ohio
cocaine trafficking conviction was a controlled substance offense as defined under
U.S.S.G. § 4B1.2(b). He argued that his conviction under Ohio Revised Code
§ 2925.03(A)(1) could not categorically be considered a “controlled substance offense”
under the Guidelines because the statute allowed for a conviction for a mere “offer to
sell” drugs. Evans also argued that his conviction for knowingly assaulting a police
officer, in violation of Ohio Revised Code § 2903.13(A) and (C)(3), could not
categorically be considered a crime of violence as defined under U.S.S.G. § 4B1.2(a)
because the conduct proscribed by the statute need not be “purposeful.” Evans
conceded, however, that his prior 2006 felony conviction for drug trafficking in Ohio
qualified as a controlled substance offense under the Sentencing Guidelines. As a result,
Evans argued that with just one qualifying prior felony conviction, his base offense level
under the Guidelines should have been 20 instead of 24.
At sentencing, the district court rejected Evans’s arguments and found that his
2004 Ohio conviction of trafficking in cocaine was a controlled substance offense and
that his 2000 Ohio conviction for knowingly assaulting a police officer was a crime of
violence as defined under § 4B1.2 of the Sentencing Guidelines. After Evans presented
his arguments in favor of mitigation and a below-Guidelines sentence—including a
difficult, unstable childhood; the murder of his father; a history of substance abuse; the
completion of a GED and drug treatment programs; and his claim that he only began
carrying a gun for protection after the murder of his brother—the district court
considered the 18 U.S.C. § 3553(a) sentencing factors. The district court acknowledged
Evans’s difficult upbringing but concluded that this factor was outweighed by his
lengthy and serious criminal history. The district court ultimately imposed a sentence
of 92 months’ imprisonment, which was at the bottom end of the Guidelines range.
No. 11-3460 United States v. Evans Page 4
II.
On appeal, Evans maintains that the district court improperly enhanced his
advisory base offense level by four levels, from 20 to 24, under Sentencing Guideline
§ 2K2.1(a)(2) based on his 2000 felony conviction of knowingly assaulting a police
officer and his 2004 felony conviction of trafficking in cocaine. Section 2K2.1(a)(2)
provides that if a defendant who is convicted of being a felon in possession of a firearm
has at least two prior felony convictions of either a crime of violence or a controlled
substance offense, the district court is to apply a base offense level of 24. U.S.S.G.
§ 2K2.1(a)(2). If a defendant has only one such prior conviction, the district court is to
apply a base offense level of 20. Id. § 2K2.1(a)(4)(A). Because Evans has admitted that
his prior 2006 felony conviction for drug trafficking in Ohio qualifies as a controlled
substance offense under the Sentencing Guidelines, we need only find that one of the
challenged prior convictions qualifies under §§ 2K2.1 and 4B1.2 to affirm the district
court’s decision to set Evans’s base offense level at 24.
A district court’s determination that a prior offense qualifies either as a crime of
violence or as a controlled substance offense is a legal determination, which we review
de novo. United States v. Catalan, 499 F.3d 604, 606 (6th Cir. 2007); United States v.
McMurray, 653 F.3d 367, 371 (6th Cir. 2011). When conducting this de novo review,
this court applies a “categorical” approach, “looking to the statutory definition of the
offense and not the particular facts underlying the conviction.”1 McMurray, 653 F.3d
at 372 (citing Taylor v. United States, 495 U.S. 575, 600 (1990)).
A.
Evans claims that his prior conviction for assault of a police officer, in violation
of Ohio Revised Code § 2903.13(A) and (C)(3), was not categorically a crime of
1
McMurray addressed the issue of whether a Tennessee conviction for aggravated assault
qualified as a “violent felony” under the Armed Career Criminal Act (“ACCA”). 653 F.3d at 371. As the
McMurray court noted, “[w]hether a conviction is a ‘violent felony’ under the ACCA is analyzed in the
same way as whether a conviction is a ‘crime of violence’ under the United States Sentencing Guidelines
(‘U.S.S.G.’) § 4B1.2(a).” Id. at 371 n.1.
No. 11-3460 United States v. Evans Page 5
violence pursuant to U.S.S.G. § 2K2.1(a)(2). Section 2K2.1 incorporates the definition
of a “crime of violence” from U.S.S.G. § 4B1.2, which provides that
(a) The term “crime of violence” means any offense under federal or
state law, punishable by imprisonment for a term exceeding one year,
that–
(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.
U.S.S.G. §§ 4B1.2(a) & 2K2.1, Application Note 1. The district court found that the
Ohio assault statute under which Evans was convicted—Ohio Revised Code
§ 2903.13(A) and (C)(3), which states: “[n]o person shall knowingly cause or attempt
to cause physical harm to another . . . [and] . . . [i]f the victim of the offense is a peace
officer . . . while in the performance of [his] official duties, assault is a felony of the
fourth degree”—was categorically a crime of violence under both subsections of
§ 4B1.2(a). We agree.
First, when the victim is a police officer, the Ohio assault statute describes an
offense punishable by imprisonment for a term exceeding one year. See Ohio Rev. Code
§ 2929.14(A)(4).
Next, in order to categorically qualify as a crime of violence under the first
subsection of the Guidelines definition, a statute must have as an element the use (or
attempted use) of physical force against another. U.S.S.G. § 4B1.2(a)(1). When
construing the “use of physical force” clause of the ACCA (see footnote 1, supra), the
Supreme Court defined “physical force” to mean “violent force—that is, force capable
of causing physical pain or injury to another person,” and contrasted this level of force
with mere unwanted touching, which would be incapable of causing such physical pain
or injury. Johnson v. United States, 130 S.Ct. 1265, 1270–72 (2010).
The Ohio assault statute at issue requires proof that a defendant knowingly
caused or attempted to cause physical harm to another person. Ohio Rev. Code
No. 11-3460 United States v. Evans Page 6
§ 2903.13(A). Ohio defines “physical harm” as any injury, regardless of its gravity or
duration. See Ohio Rev. Code § 2901.01(A)(3). One can knowingly cause or attempt
to cause physical harm—i.e., physical injury—to another only by knowingly using or
attempting to use physical force—i.e., force capable of causing physical injury.
Conviction under the Ohio statute, § 2903.13(A), therefore, necessarily requires proof
that a defendant knowingly used, or attempted to use, physical force capable of causing
physical pain or injury and, accordingly, qualifies as a crime of violence under
§ 4B1.2(a)(1).
Such a conclusion does not conflict with McMurray’s holding that in order to
qualify as a “crime of violence” the use or attempted use of physical force must involve
more than negligent or reckless conduct. See McMurray, 653 F.3d at 374. Evans was
convicted under Ohio Revised Code § 2903.13(A), which requires knowing conduct.
This conclusion, however, does conflict with language found in footnote six of the
McMurray opinion, in which this court questioned whether a Tennessee statute that
required proof that a person caused “serious bodily injury” to another necessarily had
as an element “the use of physical force.” McMurray, 653 F.3d at 374–75 n.6.
This language in McMurray is non-binding dicta, however, as the footnote begins
with the caveat, “[a]lthough our decision rests on the Tennessee statute’s inclusion of
reckless conduct, we also question . . . .” See id. Moreover, we decline to follow the
reasoning contained in the footnote because it appears to be based on the flawed premise
that in order for a person to use a strong physical force, the person must generate or
direct the use of this force. The McMurray footnote contends that “[a]lthough we might
expect that someone who causes serious bodily injury to another did so with a strong
physical force, the statute does not require it” and cites as an example a case in which
a defendant was convicted of aggravated assault under the Tennessee statute at issue
after the defendant placed an unconscious victim in the middle of a road where the
victim was run over by a car.2 Id. In this example, there clearly was a physical force
2
The footnote addresses knowing or intentional conduct, not reckless conduct—which is
addressed in the body of the opinion. In order to provide any support for the proposition for which it was
cited—that one can knowingly or intentionally cause serious bodily injury to another without using a
No. 11-3460 United States v. Evans Page 7
that caused the victim’s injuries—the force of the car—so the McMurray court must
have been implying that simply because the defendant did not personally generate or
direct the force that injured the victim, the defendant did not use this strong physical
force. Using this same logic, a person who uses a small amount of physical force—a
force that in itself would be incapable of causing physical pain or injury—to
intentionally push someone off a cliff does not use strong physical force against another.
Rather, the victim’s injuries would be caused by the force of gravity.
This cannot be correct. A defendant uses physical force under § 4B1.2(a)(1)
when a defendant knowingly sets in motion a series of events that the defendant knows
will result in the application of “a force capable of causing physical pain or injury to
another person.” See Johnson, 130 S.Ct. at 1271. Under this formulation, a
statute—such as Ohio Rev. Code § 2903.13(A)—that requires a showing that the
defendant knowingly caused or attempted to cause a physical injury necessarily has as
an element the knowing use or attempted use of physical force against another and thus
categorically qualifies as a crime of violence under § 4B1.2(a)(1). See United States v.
Anderson, 695 F.3d 390, 399–401 (6th Cir. 2012) (holding that, under the Armed Career
Criminal Act, the defendant’s prior conviction for aggravated assault in Ohio
categorically qualified as a “violent felony” under 18 U.S.C. § 924(e)(2)(B)(i) because
proof of serious physical injury or pain under the Ohio aggravated assault statute
necessarily requires proof of violent physical force); United States v. Gloss, 661 F.3d
317, 319 (6th Cir. 2011) (holding that an aggravated robbery statute that required proof
that the robbery was accomplished with a deadly weapon or resulted in a victim
suffering serious bodily injury “falls under the first clause of the definition of violent
felony, as it necessarily involves the ‘use, attempted use, or threatened use of physical
force against the person of another’”); see also De Leon Castellanos v. Holder, 652 F.3d
762, 766 (7th Cir. 2011) (“Battery causing bodily harm entails physical force because
some sort of physical pain or damage to the body . . . is required to convict.” (internal
quotation marks omitted)).
strong physical force—the defendant in the example must have known or intended that the unconscious
victim would be struck by a car.
No. 11-3460 United States v. Evans Page 8
Evans’s reliance on State v. Cross-Necas, No. 2010–P–0043, 2011 WL 2120098(Ohio Ct. App. May 27, 2011), to argue that Ohio Revised Code § 2903.13(A) does not
require proof of the use or attempted use of physical force is misplaced. The Cross-
Necas court held that multiple scratches on a victim’s neck caused by the defendant’s
fingernails after she swung her arm at the victim were sufficient to constitute physical
harm under § 2903.13(A). 2011 WL 2120098, at *4. Scratches are physical injuries that
are typically painful. Painful injuries are necessarily caused by a force capable of
causing physical pain or injury. Accordingly, Cross-Necas does not support Evans’s
contention that the Ohio assault statute does not require proof of the use of force and
does not qualify as a crime of violence under § 4B1.2(a)(1).
Evans’s conviction also categorically qualifies as a crime of violence under the
so-called residual clause of the Guidelines definition because his offense “otherwise
involve[d] conduct that presents a serious potential risk of physical injury to another.”
U.S.S.G. § 4B1.2(a)(2). In Begay v. United States, the Supreme Court held that the
corresponding residual clause of the ACCA applies only to crimes “that are roughly
similar, in kind as well as in degree of risk posed,” to the enumerated examples of
burglary, arson, extortion, and crimes involving explosives. 553 U.S. 137, 143 (2008).
The Court concluded that the crime of driving under the influence of alcohol “differs
from the example crimes . . . in at least one pertinent, and important, respect. The listed
crimes all typically involve purposeful, ‘violent,’ and ‘aggressive’ conduct.” Id. at
144–45.
In Sykes v. United States, however, the Supreme Court limited the application of
Begay’s “purposeful, violent, and aggressive” standard, noting that it had no precise
textual link to the residual clause and clarifying that this standard should only be applied
to crimes premised on strict liability, negligence, or recklessness. 131 S. Ct. 2267,
2275–76 (2011). Instead, the Court found that the “risk levels” approach provided a
“categorical and manageable standard” and used this method to resolve the case. Id.Under this approach, a court considers whether “the risk posed by the crime in question
is comparable to that posed by its closest analog among the enumerated offenses.” Id.No. 11-3460 United States v. Evans Page 9
at 2273 (quoting James v. United States, 550 U.S. 192, 203 (2007)) (internal editing
marks omitted). The Court compared the crime in question—vehicle flight from a law
enforcement officer—to burglary and arson and concluded that vehicle flight involved
a similar potential risk of physical injury to others. Id. at 2273–75. Accordingly, the
Court held that felony vehicle flight was a violent felony for purposes of the ACCA. Id.
at 2277.
Because the Ohio assault statute in question requires “knowing” conduct, Ohio
Rev. Code § 2903.13(A), it is not necessary for us to apply Begay’s “purposeful, violent,
and aggressive” standard. See Sykes, 131 S. Ct. at 2275. Rather, we compare the
relative risks posed by the offense and the crimes enumerated in § 4B1.2(a)(2) of the
Guidelines. The risk posed by assault under the Ohio statute—knowingly causing or
attempting to cause physical harm to another—presents an even higher risk of injury
than the enumerated crime of burglary. “Burglary is dangerous because it can end in
confrontation leading to violence,” id. at 2273, while an assault under § 2903.13(A) is
dangerous because it is itself a confrontation that involves violence. The risk of injury
posed by knowing assault under the statute is at least as great as the risk posed by
burglary, or as the Court addressed in Sykes, felonious flight from a law enforcement
officer. As a result, Evans’s conviction under Ohio Revised Code § 2903.13(A)
categorically qualifies as a crime of violence under the residual clause of the Guidelines
definition as well.
B.
Evans also argues that his prior conviction for trafficking in cocaine, in violation
of Ohio Revised Code § 2925.03(A)(1), was not categorically a controlled substance
offense under U.S.S.G. § 2K2.1(a)(2) because the statute allows for a conviction for a
mere “offer to sell” drugs. The government contends that an offer to sell a controlled
substance under the Ohio statute qualifies as a controlled substance offense under the
Guidelines.
The Ohio drug trafficking statute under which Evans was convicted states that
“[n]o person shall knowingly . . . [s]ell or offer to sell a controlled substance.” Ohio
No. 11-3460 United States v. Evans Page 10
Rev. Code § 2925.03(A)(1). The statute thus proscribes two kinds of conduct—selling
and offering to sell a controlled substance. See State v. Short, No. 83804, 2005 WL
2100969, at *4 (Ohio Ct. App. Sept. 1, 2005) (“Criminalizing an offer to sell a controlled
substance is aimed to prevent drug commerce; there need not be an actual sale.”).
Because the Ohio court documents do not indicate whether Evans was convicted for
selling cocaine or offering to sell cocaine, the panel should look to the lesser of the two
offenses, an offer to sell cocaine, to determine whether this offense categorically
qualifies as a controlled substance offense under U.S.S.G. § 2K2.1. See Johnson,
130 S. Ct. at 1269.
Section 2K2.1 incorporates the definition of a “controlled substance offense”
from U.S.S.G. § 4B1.2, which provides that
(b) The term “controlled substance offense” means an offense under
federal or state law, punishable by imprisonment for a term exceeding
one year,3 that prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance (or a counterfeit substance) or the
possession of a controlled substance (or a counterfeit substance) with
intent to manufacture, import, export, distribute, or dispense.
U.S.S.G. §§ 4B1.2(b) & 2K2.1, Application Note 1. Further, a “controlled substance
offense” includes “the offenses of aiding and abetting, conspiring, and attempting to
commit such offenses.” U.S.S.G. § 4B1.2, Application Note 1.
Two cases by this court provide persuasive support for the proposition that a
conviction for knowingly offering to sell a controlled substance is a controlled substance
offense under U.S.S.G § 4B1.2(b). See United States v. Jackson, 296 F. App’x 491, 493
(6th Cir. 2008) (finding that the district court “properly determined that [the defendant]
had been convicted of a controlled substance offense” after relying on an indictment that
charged the defendant “with knowingly selling, or offering to sell, a controlled
substance” under an older version of Ohio Revised Code § 2925.03(A)); United States
v. Montanez, 442 F.3d 485, 493 n.5 (6th Cir. 2006) (suggesting that Ohio statutory
3
It is not contested that offering to sell cocaine is an offense punishable by imprisonment for a
term exceeding one year. See Ohio Rev. Code § 2929.14(A)(4).
No. 11-3460 United States v. Evans Page 11
sections that criminalized sales and offers to sell a controlled substance—as opposed to
mere possession in a bulk amount—“arguably” would qualify as controlled substance
offenses).
Evans points to two cases from the Second and Fifth Circuits, however, which
held that where a state offense permits a conviction for an “offer to sell” and does not
require the presence of actual narcotics, the prior offense will not meet the definition of
a “controlled substance offense.” See Unites States v. Savage, 542 F.3d 959, 965–66 (2d
Cir. 2008) (holding that “a mere offer to sell,” absent possession, does not qualify as a
controlled substance offense, reasoning that “[a]n offer to sell can be fraudulent, such
as when one offers to sell the Brooklyn Bridge. In such a circumstance, the offer to sell
is fraudulent in the sense that the person offering the bridge or the drug does not have
the intent to distribute or sell the item. As we have held, a crime not involving the
mental culpability to commit a substantive narcotics offense [does not] serve as a
predicate ‘controlled substance offense’ under the Guidelines.” (internal citation and
quotation marks omitted)); United States v. Price, 516 F.3d 285, 287 (5th Cir. 2008)
(holding that a conviction under the Texas statute at issue for offering to sell a controlled
substance was not a “controlled substance offense” under the Guidelines).
This court found in Mendieta-Robles v. Gonzales, 226 F. App’x 564, 570 (6th
Cir. 2007) that “[t]o be convicted under ORC § 2925.03(A)(1), an individual need only
intend to offer to sell a controlled substance” (emphasis added), but this no longer
appears to be a correct statement of Ohio law. The Supreme Court of Ohio held in State
v. Cabrales, 886 N.E.2d 181, 188 (Ohio 2008), that “[t]rafficking under R.C.
2925.03(A)(1) requires an intent to sell, but the offender need not possess the controlled
substance in order to offer to sell it.” (emphasis added) The distinction between an
“intent to sell” and an “intent to offer to sell” is crucial and distinguishes the Ohio drug
trafficking statute from the statute at issue in Savage. Because conviction under
§ 2925.03(A)(1) for an offer to sell a controlled substance requires an intent to sell a
controlled substance, the statute, as interpreted by the Supreme Court of Ohio, does not
No. 11-3460 United States v. Evans Page 12
encompass fraudulent offers to sell—i.e., an offer to sell a controlled substance when the
defendant has no intention of carrying out the sale.
Instead, because a conviction under § 2925.03(A)(1) requires an intent to sell a
controlled substance, such a conviction under the statute for an offer to sell is properly
considered an attempt to transfer a controlled substance, which is a “controlled substance
offense” under the Guidelines. See U.S.S.G. § 4B1.2, Application Note 1. “We have
crimes of attempt because the mens rea involved is not diminished by failure.” United
States v. Benson, 27 F.3d 567 (table), 1994 WL 188504, at *5 (6th Cir. 1994). Criminal
attempt requires that the defendant intended to commit the crime and that the defendant
took a substantial step towards committing the crime, beyond mere preparation. Sixth
Circuit Pattern Jury Instructions, § 5.01; United States v. Dolt, 27 F.3d 235, 239 (6th Cir.
1994). Conviction under § 2925.03(A)(1) requires proof of both elements. A defendant
must have the intent to sell a controlled substance in order to be convicted under the
Ohio statute. Cabrales, 886 N.E.2d at 188. And the act of offering to sell a controlled
substance is a substantial step towards committing the crime of distributing a controlled
substance. See United States v. Colon, 268 F.3d 367, 377 (6th Cir. 2001) (holding that
distribution of a controlled substance under 21 U.S.C. § 841(a), which may involve
actual or constructive possession of a controlled substance, also includes “other acts
perpetrated in furtherance of a transfer or sale, such as arranging or supervising the
delivery, or negotiating for or receiving the purchase price”); United States v. Wigley,
627 F.2d 224, 226 (10th Cir. 1980) (“Activities in furtherance of the ultimate sale such
as vouching for the quality of the drugs, negotiating for or receiving the price, and
supplying or delivering the drug are sufficient to establish distribution.”). An offer to
sell a controlled substance is an act perpetrated in furtherance of a sale, typically as part
of the negotiation for the price and quantity, and it is therefore a substantial step in
attempting to consummate a sale. Accordingly, a conviction under § 2925.03(A)(1) for
offering to sell a controlled substance constitutes an attempt to distribute a controlled
substance, and thus a conviction under the statute categorically qualifies as a controlled
substance offense under U.S.S.G. §§ 2K2.1(a)(2) and 4B1.2(b).
No. 11-3460 United States v. Evans Page 13
Because we hold that Evans’s conviction for assault of a police officer under
Ohio Revised Code § 2901.13 is a crime of violence and his conviction for trafficking
in cocaine under Ohio Revised Code § 2925.03(A)(1) is a controlled substance offense,
Evans has at least two qualifying prior felony convictions under U.S.S.G. § 2K2.1(a)(2),
and the district court properly determined that his base offense level was 24 under this
provision of the Guidelines.
III.
Evans also challenges the substantive reasonableness of his sentence, arguing
that a term of 92 months’ imprisonment was greater than necessary. “Post-Booker, we
review a district court’s sentencing determination under a deferential abuse-of-discretion
standard, for reasonableness.” United States v. Presley, 547 F.3d 625, 629 (6th Cir.
2008) (internal quotation marks omitted). Review of the substantive reasonableness of
a sentence takes into account the totality of the circumstances. Gall v. United States,
552 U.S. 38, 51 (2007). A sentence may be substantively unreasonable, for example, if
the district court selects the sentence arbitrarily, bases the sentence on impermissible
factors, fails to consider pertinent Section 3553(a) factors, or gives an unreasonable
amount of weight to any pertinent factor. United States v. Webb, 403 F.3d 373, 385
(6th Cir. 2005). When a sentence falls within the Guidelines range, a presumption of
reasonableness applies. United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008)
(en banc). “The fact that the appellate court might reasonably have concluded that a
different sentence was appropriate is insufficient to justify reversal of the district court.”
Gall, 552 U.S. at 51.
Evans claims that his sentence is greater than necessary because of his personal
history and other mitigating factors. During his sentencing hearing, Evans offered the
following reasons in favor of mitigation and a below-Guidelines sentence: an unstable
childhood, the murder of his father, a history of substance abuse, the completion of a
GED and drug treatment programs, his claim that his two sons need him, his claim that
he only began carrying a gun for protection after the murder of his brother, and his claim
that category VI overstated the seriousness of his prior criminal activity.
No. 11-3460 United States v. Evans Page 14
The district court considered these mitigating factors, acknowledging Evans’s
difficult upbringing, but concluded that they were outweighed by his lengthy and serious
criminal history. It found that his criminal conduct demonstrated “a life of disrespect
for the law” and that Evans was “clearly a risk to reoffend.” The need to promote
respect for the law and to provide adequate deterrence and protection of the public points
to the reasonableness of the sentence imposed. The district court did not abuse its
discretion when it concluded that these concerns outweighed the mitigating factors
offered by Evans. The district court did not select the sentence arbitrarily, base its
decision on impermissible factors, fail to consider pertinent Section 3553(a) factors, or
give an unreasonable amount of weight to any pertinent factor. See Webb, 403 F.3d at
385.
Moreover, because both of Evans’s challenged prior convictions qualify as
predicate offenses under U.S.S.G. § 2K2.1(a)(2), the district court correctly determined
Evans’s base offense level, which resulted in a recommended sentence of 92 to 115
months’ imprisonment. Because the sentence of 92 months’ imprisonment is within the
recommended range under the Guidelines, it is presumptively reasonable. See Vonner,
516 F.3d at 389. Evans has failed to rebut this presumption. See United States v.
Robinson, 503 F.3d 522, 528 (6th Cir. 2007) (finding that it is incumbent upon the
defendant to establish that his within-Guidelines sentence was unreasonable); United
States v. Trejo-Martinez, 481 F.3d 409, 413 (6th Cir. 2007) (“The mere fact that [the
defendant] desired a more lenient sentence, without more, is insufficient to justify our
disturbing the reasoned judgment of the district court.”). Evans’s sentence was
substantively reasonable.
IV.
For the reasons provided above, we affirm the district court’s judgment.