United States v. Regis Adkins , 729 F.3d 559 ( 2013 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0261p.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. 12-3382
v.
,
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Defendant-Appellant. -
REGIS ADKINS,
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:11-cr-00537-1—James S. Gwin, District Judge.
Argued: April 24, 2013
Decided and Filed: September 5, 2013
Before: GRIFFIN and KETHLEDGE, Circuit Judges; ZATKOFF, District Judge.*
_________________
COUNSEL
ARGUED: Jessica Morton, UNIVERSITY OF MICHIGAN LAW SCHOOL
FEDERAL APPELLATE LITIGATION CLINIC, Ann Arbor, Michigan, for Appellant.
Laura McMullen Ford, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio,
for Appellee. ON BRIEF: Jessica Morton, UNIVERSITY OF MICHIGAN LAW
SCHOOL FEDERAL APPELLATE LITIGATION CLINIC, Ann Arbor, Michigan,
Melissa M. Salinas, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Toledo, Ohio,
Dennis G. Terez, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio,
for Appellant. Laura McMullen Ford, UNITED STATES ATTORNEY’S OFFICE,
Cleveland, Ohio, for Appellee.
*
The Honorable Lawrence P. Zatkoff, Senior United States District Judge for the Eastern District
of Michigan, sitting by designation.
1
No. 12-3382 United States v. Adkins Page 2
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OPINION
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ZATKOFF, District Judge. On November 22, 2011, a grand jury in the Northern
District of Ohio returned an indictment charging Appellant Regis Adkins (“Adkins”)
with being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1).
Adkins pleaded guilty to the charge on January 9, 2012.
On March 19, 2012, the district court sentenced Adkins to 46 months of
incarceration and three years of supervised release. Adkins now appeals his sentence
as procedurally and substantively unreasonable. For the following reasons, we affirm
the district court’s sentence.
I. BACKGROUND
On October 18, 2011, the Cleveland Police Department and the Bureau of
Alcohol, Tobacco, Firearms and Explosives responded to a report of gunshots being
fired at a Cleveland gas station. When the officers arrived, the manager of the gas
station provided them with a security video that had captured the shooting incident. The
four-minute composite video of the gas station’s surveillance footage, which was
admitted without objection at sentencing, shows a white sport utility vehicle (“SUV”)
driving through the gas station’s parking lot as Adkins appears to recognize the SUV.1
At approximately, 21:22:32 of the video, Adkins is shown pulling a handgun from the
walking cast boot he was wearing on his right foot. Walking with the gun at his side and
1
In his reply brief, Adkins raises—for the first time—an objection to the video submitted by the
government as Appendix B. Adkins claims that Appendix B may not be the same video shown at
sentencing. He also alleges that Appendix B differs from a previous video—Appendix A—that was
provided by the government and that Adkins used to prepare his appeal. Adkins’s objection is not well-
taken. With regard to the differences between the videos, Appendix A contains a single camera angle and
appears upside-down to the viewer; Appendix B is correctly oriented to the viewer and contains multiple
camera angles in split-screen format. Although in different formats, the contents of both videos are
identical. Additionally, Appendix B does appear to be the video shown at trial. When describing the video
prior to playing it at sentencing, the government indicated that the video was “approximately four minutes
long,” and contained multiple camera angles. R. 24: Tr. of Sentencing Hr’g, Page ID 83–84. This
description matches the characteristics of Appendix B. More significant, however, is the fact that no one
at the sentencing made any mention of the video appearing upside-down.
No. 12-3382 United States v. Adkins Page 3
pointed to the ground, Adkins casually paced around and zipped up his hooded
sweatshirt before raising the gun, pausing to take aim, and firing several rounds at the
SUV as it drove away on an adjacent side street. On the left side of the screen, a bullet
appears to strike the pavement in front of another vehicle parked near the SUV just as
the SUV begins to drive away.
On November 22, 2011, the government filed a one-count Indictment against
Adkins charging him as a felon in possession of ammunition under 18 U.S.C.
§ 922(g)(1). On January 5, 2012, Adkins pleaded guilty without a plea agreement and
issued a statement accepting responsibility for his actions.
On March 19, 2012, Adkins appeared in the district court for sentencing. The
Presentence Report (“PSR”) recommended a base offense level of 20 under U.S.S.G.
§ 2K2.1(a)(4)(A). Adkins did not challenge the PSR’s recommendation in his
sentencing memorandum or orally at sentencing. Nor did he disagree with the
government’s position in its sentencing memorandum that Adkins committed the instant
offense after sustaining a felony conviction for a crime of violence—criminal gang
activity involving aggravated robbery and kidnapping—which triggered
§ 2K2.1(a)(4)(A)’s base level enhancement.
At sentencing, the district court calculated a base offense level of 20, implicitly
adopting the PSR’s finding that Adkins committed some part of the instant offense after
sustaining a felony conviction of a crime of violence. The court then added four levels
after finding that Adkins possessed ammunition in connection with another felony
offense—aggravated assault. Because Adkins accepted responsibility, the court reduced
the offense level by two, and subtracted an additional level at the government’s request.
Thus, the district court calculated a total offense level of 21.
The district court assessed Adkins’s criminal history at four points, placing him
in Category III. The court assigned three points for the attempted criminal gang activity
conviction and added an additional point for a juvenile incident in which Adkins was
charged with carrying a concealed weapon. In his sentencing memorandum, Adkins
argued that he was neither found guilty nor placed on probation in connection with the
No. 12-3382 United States v. Adkins Page 4
juvenile incident. Though acknowledging that the records of the juvenile incident were
less than ideal, the district court overruled the objection. Based on a total offense level
of 21 and a criminal history category of III, the court calculated an advisory range of 46
to 57 months.
The district court then considered Adkins’s history and characteristics. The court
made note of Adkins’s extremely troubled family circumstances, including his mother’s
past drug use and his absentee father. The court balanced this against Adkins’s previous
use of drugs, his lack of work history and education, and the fact that he had previous
involvement in violent incidents, including several cases involving firearms. The court
noted that the median sentence for firearm violations by a Category III offender is 37
months. Nevertheless, the court ultimately imposed a sentence of 46 months to be
followed by three years of post-release control. This appeal followed.
II. LEGAL STANDARD
This Court reviews sentences for procedural and substantive reasonableness.
Gall v. United States, 552 U.S. 38, 51 (2007). First, the Court must “ensure that the
district court committed no significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id. If no
procedural error occurred, the Court must then “consider the substantive reasonableness
of the sentence imposed under an abuse-of-discretion standard.” Id. “The sentence may
be substantively unreasonable if the district court chooses the sentence arbitrarily,
grounds the sentence on impermissible factors, or unreasonably weighs a pertinent
factor.” United States v. Brooks, 628 F.3d 791, 796 (6th Cir. 2011). The Court affords
a rebuttable presumption of substantive reasonableness to sentences falling within the
applicable Guidelines range. Id.No. 12-3382 United States v. Adkins Page 5
III. ANALYSIS
On appeal, Adkins presents four issues for the Court’s consideration: first,
whether the district court erred in applying a four-level enhancement for possession of
a firearm in connection with another felony pursuant to U.S.S.G. § 2K2.1(b)(6); second,
whether the district court miscalculated his base offense level; third, whether the district
court improperly assigned a criminal history point for the alleged juvenile conviction;
and fourth, whether the district court failed to adequately consider Adkins’s personal
history when considering the relevant factors under 18 U.S.C. § 3553(a).
1. FOUR-LEVEL ENHANCEMENT UNDER § 2K2.1(B)(6)
A four-level enhancement to a defendant’s base offense level applies if the
defendant “used or possessed any firearm or ammunition in connection with another
felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). The increase applies if the government
“establish[es], by a preponderance of the evidence, a nexus between the firearm and an
independent felony.” United States v. Burns, 498 F.3d 578, 580 (6th Cir. 2007) (internal
citations omitted). “[A]nother felony offense” includes “any federal, state or local
offense . . . punishable by imprisonment for a term exceeding one year, regardless of
whether a criminal charge was brought, or a conviction obtained.” U.S.S.G. § 2K2.1,
cmt. n.14(C); United States v. Bullock, 526 F.3d 312, 317 (6th Cir. 2008). When
considering a challenge to a § 2K2.1(b)(6) enhancement, we review the district court’s
factual findings for clear error, giving “due deference” to the district court’s
determination that the firearm was used or possessed “in connection with” another
felony. United States v. Taylor, 648 F.3d 417, 431–32 (6th Cir. 2011). Pure questions
of law are reviewed de novo. Id. at 431.
The district court found that Adkins used a firearm “in connection with”
committing aggravated assault when he fired shots at the SUV. Adkins challenges the
district court’s application of § 2K2.1(b)(6) on two fronts. First, Adkins claims that he
fired the gun in self-defense and, as such, could not have committed aggravated assault.
No. 12-3382 United States v. Adkins Page 6
Second, Adkins argues that the district court had an insufficient factual basis to conclude
that he committed aggravated assault.
1. Self-defense
Adkins acknowledges that he fired shots at the SUV, but claims to have done so
in self-defense. He argues that the driver of the SUV initiated the altercation by firing
shots at Adkins and the nearby vehicle containing his brother, girlfriend, and child. The
district court found that self-defense was not supported by the record in this case. The
district court’s determination was not in error.
Under Ohio law, the burden falls on the defendant to demonstrate self-defense
by a preponderance of the evidence. To do so, the defendant must show:
(1) he was not at fault in creating the situation giving rise to the affray;
(2) . . . he ha[d] . . . a bona fide belief that he was in imminent danger of
death or great bodily harm and that his only means of escape from such
danger was in the use of . . . force; and (3) . . . he . . . [did] not . . .
violate[ ] any duty to retreat or avoid the danger.
State v. Williford, 551 N.E.2d 1279, 1281 (Ohio 1990) (internal quotation marks
omitted). “‘If the defendant fails to prove any one of these elements by a preponderance
of the evidence he has failed to demonstrate that he acted in self-defense.’” Id. (quoting
State v. Jackson, 490 N.E.2d 893, 897 (Ohio 1986)).
Adkins failed to meet his burden of showing self-defense by a preponderance of
evidence. First, Adkins failed to show—or even allege—that he did not give rise to the
incident. Adkins cannot, by mere declaration, establish that he only fired shots in
response to incoming gunfire. Indeed, the video gives no indication that Adkins was
under fire but instead shows Adkins firing at the SUV after it departed the parking lot
and was driving away—indicating that, at the very least, the driver of the SUV was
attempting to leave the scene. See State v. Jones, 2002 WL 1041740, *3 (Ohio App. 8th
Dist. 2002) (unpublished) (“appellant’s argument that the shots were fired in self-defense
. . . is without merit because the physical evidence revealed that the victim was shot from
behind . . . as the victim fled.”).
No. 12-3382 United States v. Adkins Page 7
More significant is the fact that Adkins presented no testimony to support his
self-defense claim, and the security video firmly dispels Adkins’s characterization of the
incident. The video is at odds with Adkins’s claim that bullets were coming from the
SUV, as the footage does not show bullets ricocheting near Adkins or his car. Instead,
the video only shows Adkins’s shell casings being discharged as he was firing his gun.
Id. There is nothing to indicate that officers recovered any shell casings other than those
found at the scene, which Adkins admitted to possessing. Even more notable, however,
is the fact that Adkins simply does not act as though he is under gunfire. He does not
appear to move with any urgency, nor does he attempt to seek any cover from the gunfire
he alleges was coming from the SUV. Instead, Adkins stood completely upright,
directly facing the SUV, and calmly raised his firearm, pointed it at the SUV, and fired
several shots. In short, the security video contradicts Adkins’s assertion that he was
acting in self-defense.
Adkins makes much of the district court’s statement at sentencing that there
“may be some argument” to self-defense, and of the PSR noting that “review of the
video suggested the defendant may have been firing return shots, in his defense[.]”
These statements, however, are not fatal to the district court’s finding. The district court
used a preponderance of the evidence standard. Under this standard, some evidence that
Adkins may have been acting in self-defense is not necessarily preclusive of an ultimate
finding that Adkins was not acting in self-defense. After viewing the video, the district
court ultimately found, in no uncertain terms, that it “[did not] find [self-defense] to be
supported in this case.” As discussed above, the video certainly supports such a finding.
Based on these facts, Adkins did not meet his burden of demonstrating self-defense by
a preponderance of the evidence.
2. Felonious and/or Aggravated Assault
At the sentencing hearing, the government argued that, by intentionally firing at
the SUV, Adkins committed either felonious assault, in violation of Ohio Rev. Code
§ 2903.11, or aggravated assault, in violation of Ohio Rev. Code § 2903.12—both of
which are punishable by imprisonment exceeding one year. The district court found that
No. 12-3382 United States v. Adkins Page 8
there is “sufficient evidence that supports . . . by a preponderance of the evidence, that
the Defendant was guilty of aggravated assault. I don’t find sufficient evidence of
felonious assault.”
In Ohio, felonious assault is knowingly causing or attempting to cause physical
harm to another by means of a deadly weapon. Ohio Rev. Code § 2903.11. Aggravated
assault is knowingly causing or attempting to cause physical harm to another by means
of a deadly weapon, while under the influence of sudden passion or in a sudden fit of
rage, either of which is brought on by serious provocation by the victim. Ohio Rev.
Code § 2903.12.
The record supports the district court’s finding that Adkins used the ammunition
in connection with felonious and/or aggravated assault. As discussed above, there is
insufficient evidence to support Adkins’s self-defense claim and Adkins offers no other
justification. The video indisputably shows that Adkins raised his firearm, took aim, and
fired several shots at an occupied vehicle. In the absence of self-defense or any other
justification, the video alone is sufficient to show that Adkins knowingly caused or
attempted to cause physical harm to another by means of a deadly weapon.
Adkins points out that the district court erred by making a finding of aggravated
assault, while at the same time rejecting a finding of felonious assault. According to the
district court, there is “sufficient evidence that supports that the Defendant . . . was guilty
of aggravated assault. I don’t find sufficient evidence on the felonious assault.” Though
hardly the significant error claimed by Adkins, the district court appears to have
misconstrued the elements of the two offenses and their interplay. The essential
elements of felonious assault and aggravated assault—knowingly causing or attempting
to cause physical harm to another by means of a deadly weapon—are identical. State
v. Baker, No. 3971, 1989 WL 65436 (Ohio Ct. App. June 16, 1989) dismissed, 545
N.E.2d 901 (Ohio 1989). In other words, aggravated assault is the same as felonious
assault, albeit with a reduction in penalty where the fact finder concludes that a serious
provocation existed. State v. Carter, 491 N.E.2d 709, 714 (Ohio 1985). Thus, the
No. 12-3382 United States v. Adkins Page 9
district court’s error in this regard was harmless. Accordingly, the district court
correctly applied the enhancement under § 2K2.1(b)(6)(B).
2. PREVIOUS CONVICTION OF A CRIME OF VIOLENCE
At sentencing, the district court adopted the PSR’s increased base offense level
of 20, finding that Adkins was previously convicted of attempted criminal gang
activity— a “crime of violence” warranting an enhancement under U.S.S.G
§ 2K2.1(a)(4)(A). The state court indictment charged Adkins with violating Ohio Rev.
Code § 2923.42A by engaging in “criminal conduct” as part of a criminal gang.2 The
predicate criminal conduct was listed in the indictment as follows:
assist[ing] in the commission of Aggravated Robbery . . . and/or
Kidnapping . . . and/or Carrying Concealed Weapon . . . and/or
Possession of Drugs . . . or as alleged [as substantive offenses] in Counts
1, 2, 3, 4, 7, all of which are incorporated as if fully restated herein.
(emphasis added). Adkins pleaded guilty to this charge and was sentenced to six months
of imprisonment to be followed by three years of post-release control.
On appeal, Adkins argues—for the first time—that his attempted criminal gang
activity conviction is not a qualifying “crime of violence” that warrants an enhancement
under § 2K2.1(a)(4)(A).3 Pointing to the indictment’s use of the term “and/or,” Adkins
argues that he pleaded guilty only to the non-violent predicate offenses listed in the
indictment—Carrying Concealed Weapon or Possession of Drugs.
The issue of whether a defendant’s prior conviction constitutes a “crime of
violence” requiring an increased base offense level under § 2K2.1(a)(4)(A) is a legal
question that we review de novo. See United States v. Martin, 378 F.3d 578, 580 (6th
Cir. 2004) (“giv[ing] fresh review to the legal question” of whether defendant had been
convicted of a “crime of violence” for an enhancement under § 2K2.1(a)(4)(A)). Courts
2
Count 8 was later amended to an attempt, rather than a completed offense.
3
As noted by both parties, plain error review does not apply because the district court did not ask
the Bostic question at sentencing. United States v. Bostic, 371 F.3d 865, 872 (6th Cir. 2004).
No. 12-3382 United States v. Adkins Page 10
determine whether a crime is violent by using a categorical approach, Taylor v. United
States, 495 U.S. 575, 602, (1990), whereby the courts “consider the offense generically”
and “examine it in terms of how the law defines the offense and not in terms of how an
individual offender might have committed it on a particular occasion.” Begay v. United
States, 553 U.S. 137, 141 (2008). If, however, it is possible to violate the state law in
a way that amounts to a crime of violence and in a way that does not, we may consider
the indictment, the plea agreement, the plea colloquy or “comparable judicial
record[s]”—collectively known as Shepard documents—to determine whether the
individual’s actual conduct necessarily establishes the nature of the offense. See United
States v. Mosley, 575 F.3d 603, 606 (6th Cir. 2009) (citing Shepard v. United States,
544 U.S. 13, 26 (2005); United States v. Ford, 560 F.3d 420, 422 (6th Cir. 2009)).
Because the criminal gang activity statute at issue here, Ohio Rev. Code
§ 2923.42, contemplates both violent and non-violent conduct, the government sought
to introduce the state court indictment and journal entry as Shepard documents to show
that Adkins necessarily pleaded guilty to a violent predicate offense.4 Adkins challenges
the use of such documents under Shepard and alternatively argues that, even if properly
reviewable, the documents do not necessarily show that Adkins was convicted of a crime
of violence.
It is against this background that we first turn to the threshold issue of whether
a state court journal entry like the one here constitutes a valid Shepard document—a
matter this Court has yet to specifically address. We find that it does.
In Ohio, a state court journal entry constitutes a judgment of conviction. See
Ohio Crim. R. 32(C) (“A judgment of conviction shall set forth the plea, the verdict, or
findings, upon which each conviction is based, and the sentence. . . . The judge shall
sign the judgment and the clerk shall enter it on the journal. A judgment is effective
4
Adkins asserts that the government waived its argument regarding the Shepard documents by
not addressing this issue in its initial brief. However, because Adkins questioned his prior conviction of
a violent crime for the first time on appeal, the government had no reason to present either document at
sentencing. After Adkins first raised the issue, the government filed a Motion to take Judicial Notice of
the indictment and journal entry, which we granted on April 22, 2013.
No. 12-3382 United States v. Adkins Page 11
only when entered on the journal by the clerk.”). See also State ex rel. Geauga Cty. Bd.
of Commrs. v. Milligan, 100 Ohio St. 3d 366, 370, 800 N.E.2d 361, 365 (2003) (“[An
Ohio] court of record speaks only through its journal entries.”). See also Schenley v.
Kauth, 160 Ohio St. 109, 111, 113 N.E.2d 625, 626 (1953) (“A court of record speaks
only through its journal and not by oral pronouncement or mere written minute or
memorandum.”) (citation omitted). “Were the rule otherwise it would provide a wide
field for controversy as to what the court actually decided.” Indus. Comm’n of Ohio v.
Musselli, 102 Ohio St. 10, 15, 130 N.E.2d 32, 34 (1921).
We have previously held that a state court judgment is reviewable under Shepard
where a sentencing court seeks to determine—for sentence enhancement purposes—the
offense to which a defendant pleaded guilty. See United States v. Armstead, 467 F.3d
943, 948 (6th Cir. 2006) (“A judgment falls within Shepard’s exception for ‘some
comparable judicial record’ to a plea colloquy or agreement, and therefore may be
examined by a sentencing court.”) (citing United States v. Beasley, 442 F.3d 386,
393–94 (6th Cir. 2006). Therefore, we find that a journal entry such as the one here
constitutes a valid Shepard document that is properly considered by a court in
determining the nature of a prior conviction.
Turning next to the information contained in the journal entry, we find it beyond
dispute that Adkins pleaded guilty to a crime of violence. The journal entry reads as
follows:
ON A FORMER DAY OF COURT THE DEFENDANT PLEAD
GUILTY TO ATTEMPTED, CRIMINAL GANG ACTIVITY
2923.02/2933.42A AS AMENDED IN COUNT(S) 8 OF THE
INDICTMENT . . . . THE COURT IMPOSES A PRISON SENTENCE
. . . OF 18 MONTH(S). . . . POST RELEASE CONTROL IS PART OF
THE PRISON SENTENCE FOR 3 YEARS FOR THE ABOVE
FELONY(S) UNDER R.C. 2967.28.
(emphasis added). The entry indicates that the state court imposed—as part of Adkins’s
sentence—a mandatory three-year term of post-release control under Ohio Rev. Code
§ 2967.28. Section 2967.28(B)(3) requires three years of post-release control “[f]or a
felony of the third degree that is an offense of violence and is not a felony sex offense[.]”
No. 12-3382 United States v. Adkins Page 12
Ohio Rev. Code § 2967.28(B)(3) (emphasis added). Notably, the only other subsection
permitting a maximum three-year post-release control term applies “if the parole board
. . . determines that a period of post-release control is necessary for that offender.” Ohio
Rev. Code § 2967.28(C) (emphasis added). Section 2967.28(C) is inapplicable here,
however, because the sentencing court—rather than a parole board—imposed Adkins’s
post-release control as part of his prison sentence. See State v. Fischer, 128 Ohio St.3d
92, 99, 942 N.E.2d 332, 340 (finding that, where a defendant is subject to post-release
control, the trial court must include the post-release control terms in the sentence).
Additionally, prior to his sentencing, Adkins was out on bond and was remanded
to custody after sentencing. See Motion to Take Judicial Notice, attachment 2. At that
point, Adkins had not yet been to the Ohio Department of Corrections and was not
subject to parole board control. Therefore, Adkins could not have received a mandatory
three-year post-release control sentence under § 2967.28 without pleading guilty to a
third degree felony that was a crime of violence.
Moreover, had Adkins pleaded guilty only to the concealed weapon or drug
charges, the court would have been required to provide notice to Adkins about a
discretionary post-release control term, of up to three years, that would be determined
later by the Ohio Parole Board under § 2967.28(C) and (D)(1). The adult parole
authority “determines whether [discretionary] post-release control is appropriate [under
Sections 2967.28(C) and D(1)], not the trial court.” State v. Warbington, 129 Ohio App.
3d 568, 571, 718 N.E.2d 516, 518 (1998); State v. Jones, 2012 WL 4789820, *2 (Ohio
App. 5th Dist. 2012) (“Appellant was never eligible for mandatory post-release control
as his third degree felony identity fraud [i.e., non-violent] did not involve harm or the
threat of harm.”). That the state court imposed a definite three-year term of post-release
control indicates that a discretionary range did not apply.
Adkins attempts to neutralize the information contained in the journal entry by
characterizing it as a “post-release control notation,” akin to a “special sentencing factor
notation” that arose in Larin-Ulloa v. Gonzalez, 462 F.3d 456, 468 (5th Cir. 2006). We
disagree with this characterization. The “special sentencing factor notation” in
No. 12-3382 United States v. Adkins Page 13
Gonzalez—that the offense in question involved a firearm—was not admitted to by the
defendant during his plea, nor was the notation part of the judgment of conviction. Id.at 469 n. 13. Here, the post-release control provision was not a mere “notation”— it was
part of Adkins’s sentence. See Woods v. Telb, 89 Ohio St.3d 504, 512–13, 733 N.E.2d
1103 (2000) (finding post-release control part of the judicially imposed sentence). A
sentence—along with other information like the plea, verdict and factual
findings—forms a judgment of conviction once signed by the judge and entered on the
journal by the court clerk. See Ohio Crim. R. 32(C). As noted above, a judgment of
conviction is reviewable under Shepard.
Adkins also argues that the definite post-release control term contained in the
journal entry does not indicate that he was “necessarily” convicted of a crime of violence
because Ohio defines violent offenses more broadly than qualifying crimes of violence
at the federal level. This Court, however, has concluded that Ohio aggravated robbery
and kidnapping convictions constitute violent felonies. United States v. Sanders,
470 F.3d 616, 22 (6th Cir. 2006) (“affirm[ing] the district court’s conclusion that
aggravated robbery under Ohio law constitutes a violent felony”); United States v.
Kaplansky, 42 F.3d 320, 324 (6th Cir. 1994) (“a [kidnapping] crime committed under
Ohio Rev. Code Ann. § 2905.01, whether by force, threat of force, or deception,
categorically qualifies as a ‘violent felony’ under § 924(e)(2)(B)(ii)”).
For these reasons, the journal entry reflecting Adkins’s attempted criminal gang
activity conviction is a “comparable judicial record” under Shepard and, based on the
state court’s sentence of three years of post-release control, Adkins necessarily pleaded
guilty to a crime of violence. A base offense level of 20 was proper.
3. WHETHER THE COURT IMPROPERLY ASSIGNED A CRIMINAL
HISTORY POINT FOR AN UNDOCUMENTED JUVENILE ACCIDENT
This Court “review[s] a district court’s factual findings concerning a defendant’s
criminal history category, which must be based on a preponderance of the evidence,
under the clearly erroneous standard of review.” United States v. Wheaton, 517 F.3d
350, 368 (6th Cir. 2008).
No. 12-3382 United States v. Adkins Page 14
In applying a criminal history category of III, the district court included one point
for Adkins’s juvenile delinquent adjudication for carrying a concealed weapon. Adkins
objected, claiming that he was never found guilty of the offense. Though no specific
record of the incident was provided, Defense counsel alleged at the sentencing that
Adkins “was bound over as an adult, and the case was terminated . . . at some point, it
was dismissed as an adult. [The record] doesn’t reflect that.”
The record shows that the district court relied on sufficient evidence to assign a
criminal history point for Adkins’s juvenile delinquent adjudication. The U.S. Probation
Officer explained that, although his office “[does not] get hard copies of juvenile records
. . . because of the nature [of such records],” a report by the State of Ohio Adult Parole
Authority “did reflect the [adjudication].” The Parole Authority’s report showed “that
[Adkins] was adjudicated delinquent and placed on probation, with the Ohio Department
of Human Services, with the suspended commitment.” Id. The government also noted
that the record reflected that Adkins’s probation terminated on May 31, 2008, “due to
a bind over, and the next state offense . . . for aggravated robbery, two counts,
kidnapping, carrying concealed weapon, tampering with evidence, having [a] weapon
under disability, possession of drugs, and criminal gang activity, along with tampering
with evidence.” Id.Notably, when the district court asked Defense counsel at the sentencing hearing
whether the record “show[s] a finding of delinquency or an adjudication,” defense
counsel admitted “that’s what the record indicates at this point” and did not produce any
evidence to support Adkins’s denial of the adjudication. In overruling the objection, the
court acknowledged that “generally the records [of the juvenile adjudication] are not
what you would hope,” as they raise questions of hearsay. The court, however, correctly
noted that “the hearsay rules don’t strictly apply in sentencing.” And, although “it would
have been much better if [the court] would have seen the actual order of adjudication in
the juvenile case” the court relied on the State Parole Authority’s report “as to what
some other record shows.” In the absence of any documentation to the contrary, the court
found this to be sufficient evidence of the adjudication.
No. 12-3382 United States v. Adkins Page 15
Adkins, however, insists that the government was required to provide additional
support for the adjudication to rebut his assertion that the adjudication was dismissed.
We disagree. “‘A defendant cannot show that a PSR is inaccurate by simply denying the
PSR’s truth. Instead, beyond such a bare denial, he must produce some evidence that
calls the reliability or correctness of the alleged facts into question.’” United States v.
Lang, 333 F.3d 678, 681 (6th Cir. 2003) (emphasis added) (quoting United States v.
Mustread, 42 F.3d 1097, 1102 (7th Cir. 1994)). If a defendant meets this initial burden
of production, “the government must then convince the court that the PSR’s facts are
actually true.” Id. (emphasis added) (quoting Mustread, 42 F.3d at 1102). The
defendant, however, “‘gets no free ride: he must produce more than a bare denial, or the
judge may rely entirely on the PSR.’” Id. (quoting Mustread, 42 F.3d at 1102). Aside
from bald assertions, Adkins failed to produce any evidence regarding the alleged
absence of the juvenile delinquent adjudication and thus did not carry his burden of
producing evidence that calls the adjudication into question. Nor does Adkins provide
documentation casting doubt on the validity of the State Parole Authority’s report.
Accordingly, the district court properly relied on the report when assigning one criminal
history point for Adkins’s juvenile delinquent adjudication.
4. ADKINS’S PERSONAL HISTORY FACTORS
Last, Adkins argues that his sentence was procedurally and substantively
unreasonable because the district court failed to adequately account for his personal
history when considering the factors set forth in 18 U.S.C. § 3553(a).
The Court affords guidelines-range sentences a “rebuttable presumption of
reasonableness,” thereby placing the onus on the defendant to demonstrate otherwise.
United States v. Brogdon, 503 F.3d 555, 559 (6th Cir. 2007). This “deferential abuse of
discretion standard” has both a procedural and a substantive component. Gall v. United
States, 552 U.S. 38, 51 (2007); United States v. Jeross, 521 F.3d 562, 569 (6th Cir.
2008).
A district court abuses its sentencing discretion if it “commit[s] [a] significant
procedural error, such as failing to calculate (or improperly calculating) the Guidelines
No. 12-3382 United States v. Adkins Page 16
range, treating the Guidelines as mandatory, failing to consider the 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence—including an explanation for any deviation from the Guidelines
range.” Gall, 552 U.S. at 51.
A reviewing court also considers the substantive reasonableness of a sentence,
“tak[ing] into account the totality of the circumstances, including the extent of any
variance from the Guidelines range.” Id.; Jeross, 521 F.3d at 569. “A sentence may be
considered substantively unreasonable when the district court selects a sentence
arbitrarily, bases the sentence on impermissible factors, fails to consider relevant
sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.”
United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008). A district court may place
great weight on one factor if such weight is warranted under the facts of the case. United
States v. Zobel, 696 F.3d 558, 571–72 (6th Cir. 2012). Additionally, this Court has
recognized that the manner in which a district court chooses to balance the applicable
sentencing factors is beyond the scope of the Court’s review. United States v. Sexton,
512 F.3d 326, 332 (6th Cir. 2008); United States v. Ely, 468 F.3d 399, 404 (6th Cir.
2006). “[W]here a district court explicitly or implicitly considers and weighs all
pertinent factors, a defendant clearly bears a much greater burden in arguing that the
court has given an unreasonable amount of weight to any particular one.” Thomas,
2011 WL 4014345 at *2 (internal quotation marks and citation omitted).
Adkins argues that his sentence is unreasonable because of the relative weight
the district court gave to applicable § 3553(a) factors. This claim is beyond the scope
of our review. Sexton, 512 F.3d at 332; Ely, 468 F.3d at 404. While Adkins contends
that the district court “gravely understate[d] the physical abuse . . . [he] suffered,” this
claim is merely a request to “balance the factors di[f]ferently than the district court did.”
Ely, 468 F.3d at 404. As this Court has explained, the scope of appellate review includes
examining “whether the sentence is reasonable, as opposed to whether in the first
instance we would have imposed the same sentence.” Id. See also United States v.
Phinazee, 515 F.3d 511, 521 (6th Cir. 2008) (noting that “appellate courts must respect
No. 12-3382 United States v. Adkins Page 17
the role of district courts and stop substituting their judgment for that of those courts on
the front line”).
Adkins’s claim that the district court should have given his family circumstances
more weight is unpersuasive. The district court noted Adkins’s “extremely troubled
family circumstances,” including the absence of his father and his mother’s drug
addiction. The court further acknowledged that, although Adkins’s mother appeared to
have overcome her drug addiction, “it obviously had an impact upon him,” all of which,
the court found, “suggest[ed] that the Defendant could be sufficiently punished by a
somewhat lesser sentence.” But the court also noted several factors that outweighed
these circumstances, including Adkins’s “drug dependency,” “involve[ment] in a number
of violent instances,” lack of “work history” and “drop[ping] out of school.” The court
found Adkins’s situation “somewhat more aggravating [than other felons in possession]
because of the use of the weapon” and because his “involve[ment] with the criminal
justice system quite a few times [was] . . . in some ways . . . more than that typically
[seen] by a Criminal History Category 3.” These statements show that the court properly
considered the applicable § 3553(a) factors in determining Adkins’s minimum
Guidelines sentence.
Last, Adkins’s claim that the district court impermissibly held his prior gunshot
injury against him is likewise misplaced. The court’s comments that Adkins had “been
shot in the leg” and had “a number of cases in the past where [he had] been involved
with firearms,” as well as its comments about Adkins’s drug dependency, are relevant
when assessing Adkins’s association with drugs, violence, and recidivism. The district
court had an interest in seeing that Adkins’s sentence reflected the seriousness of the
offense; in affording adequate deterrence; and in protecting the public from further
crimes by Adkins. See 18 U.S.C. § 3553(a)(2)(A)–(C). The district court did not
commit error by considering Adkins’s gunshot wound in the context of his background,
history, and previous acts. After properly examining all the § 3553(a) factors, the court
acted within its discretion by placing more “weight on one factor” because the particular
facts in this case warranted doing so. Zobel, 696 F.3d at 571–72.
No. 12-3382 United States v. Adkins Page 18
For the above reasons, the district court demonstrated that it adequately
considered Adkins’s history and characteristics and his “troubled family
circumstance[s].” Adkins’s displeasure with the manner in which the district court
balanced the § 3553(a) factors is simply beyond the scope of our review and insufficient
to defeat the presumption of reasonableness afforded to his minimum sentence.
IV. CONCLUSION
The district court did not err in sentencing Adkins to 46 months of incarceration.
First, the court properly applied an enhancement for Adkins’s use of ammunition in
connection with another felony offense. Second, the district court calculated the correct
base offense level given Adkins’s prior conviction for a violent felony. Third, the court
correctly assigned a criminal history point for a prior juvenile conviction. Last, the
district court fully considered Adkins’s personal history and characteristics before
imposing a sentence. Accordingly, we AFFIRM the sentence of the district court.