United States v. Mark Evans , 671 F. App'x 369 ( 2016 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0667n.06
No. 16-5214
FILED
UNITED STATES COURT OF APPEALS Dec 13, 2016
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
MARK ANTHONY EVANS, ) COURT FOR THE EASTERN
) DISTRICT OF TENNESSEE
Defendant-Appellant. )
)
)
Before: CLAY, KETHLEDGE, and DONALD, Circuit Judges.
KETHLEDGE, Circuit Judge. Mark Evans appeals his sentence for passing counterfeit
money in violation of 18 U.S.C. § 472. He argues that his above-Guidelines sentence was
substantively and procedurally unreasonable. We reject his arguments and affirm.
I.
This case involves Evans’s second federal conviction for counterfeiting. In 2009, Evans
and his girlfriend used a color copier and resume paper to create $16,000 in counterfeit bills.
Evans pled guilty to counterfeiting money in violation of 18 U.S.C. § 471. The district court
sentenced him to 15 months’ imprisonment followed by three years’ supervised release. Less
than a year into his supervised release, however, Evans was arrested in connection with another
counterfeiting scheme. The district court revoked his supervised release and sentenced him to an
additional 24 months’ imprisonment.
No. 16-5214
United States v. Evans
Evans finished his second prison term, but soon went back to counterfeiting. Within
months of his release, he was indicted on nine counts of counterfeiting charges in Georgia state
court. A month later, he was indicted on ten counts of counterfeiting charges in Tennessee state
court. In April 2015, while these charges were pending, Evans and his wife used a color copier
to print another $20,100 in fake hundred-dollar bills, which he then passed at Wal-Mart. For that
crime, Evans pled guilty in this case to passing counterfeit money in violation of 18 U.S.C.
§ 472.
At sentencing, the district court initially determined that Evans’s Guidelines range was
24 to 30 months. But the court decided that several facts warranted an upward departure from
that range, notably that Evans resumed counterfeiting almost immediately after he had served
three years in prison for that same conduct. The court also cited Evans’s long and persistent
criminal history, which dated back to his teenage years. Hence, the court found that the need to
deter Evans from committing further crimes, especially counterfeiting crimes, warranted an
above-Guidelines sentence of 48 months. This appeal followed.
II.
Evans challenges the substantive reasonableness of his sentence, which we review for an
abuse of discretion. United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007). A sentence is
substantively unreasonable when a district court “selects it arbitrarily, fails to consider pertinent
factors in 18 U.S.C. § 3553(a), or gives unreasonable weight to any one factor.” United States v.
Nixon, 664 F.3d 624, 626 (6th Cir. 2011).
Evans argues that the district court gave unreasonable weight to his prior federal
conviction for counterfeiting, given that his criminal-history score already accounted for all of
his past convictions. But the Guidelines expressly permit an upward departure when, among
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United States v. Evans
other things, a defendant’s criminal-history score underrepresents “the likelihood that he will
commit other crimes.” U.S.S.G. § 4A1.3(a). Moreover, that a circumstance was addressed in
the Guidelines does not prevent the district court from considering it under section 3553(a), so
long as the court explains why the circumstance warrants additional weight with regard to the
defendant’s sentence. United States v. Nixon, 664 F.3d 624, 626 (6th Cir. 2011). And a district
court may impose a longer sentence when necessary to further a statutory purpose of sentencing,
such as deterrence. See 18 U.S.C. § 3553(a)(2)(B). Thus, we have upheld above-Guidelines
sentences where shorter ones have previously failed to deter a defendant from committing the
same kind of crime. See, e.g., United States v. Alexander, 2016 WL 3743194 (6th Cir. July 12,
2016); United States v. Polihonki, 543 F.3d 318, 325-26 (6th Cir. 2008).
Here, Evans’s criminal-history score did not account for how similar his second
counterfeiting conviction was to his first, or how quickly he resumed counterfeiting after being
released from prison for that same crime. The district court’s sentence did account for those
things, as the court itself explained when imposing it. And the court further observed that
Evans’s criminal history included more than a dozen convictions over a span of fifteen years,
only three of which added points to his criminal-history score. See U.S.S.G. §§ 4A1.1, 4A1.2.
The court therefore had good reasons to impose an above-Guidelines sentence.
Those same reasons refute Evans’s argument that his sentence will be much higher than
the sentences of defendants with similar criminal histories. Moreover, Evans offers no empirical
basis for that assertion; and above-Guidelines sentences for repeat offenses are hardly unusual.
See, e.g., United States v. Tristan-Madrigal, 601 F.3d 629, 635-36 (6th Cir. 2010) (drunk-driving
convictions); Polihonki, 543 F.3d at 326 (supervised-release violations).
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United States v. Evans
Evans also argues that the district court put too little weight on aspects of his “history and
characteristics” that he sees as mitigating. 18 U.S.C. § 3553(a)(1). But the court extensively
considered Evans’s mental health and drug treatment needs, acknowledged its duty not to inflate
his sentence in pursuit of rehabilitation, and imposed conditions of supervised release designed
to encourage him to seek treatment for his drug addiction. In doing so, the court expressly
considered that Evans had a good childhood with no history of physical abuse, that he had
recently married, and that he had three children. The court also acknowledged that Evans had
recently lost his job due to circumstances beyond his control, and that persons addicted to drugs,
like Evans, face “major problems providing for their family.” Sentencing Tr. at 8, 14. Yet the
court was required to weigh these factors against other § 3553(a) factors, such as the need to
deter crime and to promote respect for the law. See 18 U.S.C. § 3553(a); United States v. Sexton,
512 F.3d 326, 332 (6th Cir. 2008). Given the factors that supported a longer sentence for Evans,
the sentence chosen by the court reflected a permissible balance of the § 3553(a) factors.
Finally, Evans argues that his sentence was procedurally unreasonable because, he says,
the district court did not adequately explain its reasons for an above-Guidelines sentence. See
Gall v. United States, 552 U.S. 38, 50 (2007). Evans failed to raise this objection at sentencing,
so we review only for plain error. United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir. 2004).
The district court gave several reasons for an above-Guidelines sentence here: Evans’s long
criminal history, his serial counterfeiting offenses, and his refusal to be deterred by shorter
sentences. And Evans himself does not offer any developed argument as to why the district
court’s explanation of its reasons amounted to plain error. Evans’s sentence was procedurally
reasonable.
The district court’s judgment is affirmed.
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