United States v. Gary Hohn

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0726n.06
No. 09-3821
FILED
UNITED STATES COURT OF APPEALS Oct 26, 2011
FOR THE SIXTH CIRCUIT
LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
GARY T. HOHN, ) OHIO
)
Defendant-Appellant. )
Before: NORRIS, SUTTON, and GRIFFIN, Circuit Judges.
PER CURIAM. Gary T. Hohn appeals his 151-month sentence imposed by the district court
on remand for resentencing. For the reasons that follow, we affirm Hohn’s sentence.
In 2003, as a result of an investigation into the Green region of the Outlaw Motorcycle Club
(OMC), a federal grand jury returned a forty-count indictment against Hohn, a member and former
president of the OMC’s Dayton, Ohio, chapter, along with thirty-seven co-defendants. After a
lengthy jury trial, Hohn was convicted of racketeering in violation of 18 U.S.C. § 1962(c),
conspiracy to engage in racketeering in violation of 18 U.S.C. § 1962(d), conspiracy to distribute and
possess with intent to distribute narcotics in violation of 21 U.S.C. §§ 841(a)(1) and 846, conspiracy
to use or carry firearms during and in relation to drug trafficking crimes or crimes of violence in
violation of 18 U.S.C. § 924(o), distribution of and possession with intent to distribute LSD in
violation of 21 U.S.C. § 841(a)(1), and use of extortionate means to collect an extension of credit
in violation of 18 U.S.C. § 894. At sentencing, the district court granted Hohn a four-level reduction
based on his physical condition, which included being a double amputee and suffering from such
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ailments as cardiomyopathy, hypertension, congestive heart failure, peripheral vascular disease, and
coronary artery disease. The district court ultimately sentenced Hohn to a total of 181 months of
imprisonment. On direct appeal, we affirmed Hohn’s convictions, but vacated his sentence and
remanded for resentencing, holding that the district court erred, under United States v. Booker, 543
U.S. 220 (2005), in applying the sentencing guidelines as mandatory and in imposing a mandatory
and consecutive sentence for the firearms conspiracy conviction.
On remand, Hohn filed a motion for a downward departure pursuant to USSG § 5H1.4,
arguing that his extraordinary physical impairments justified a downward departure and requesting
that the district court sentence him to home detention. Hohn asserted that his health had deteriorated
further since his incarceration, as he had developed type 2 diabetes and one of his kidneys had failed.
At resentencing, the district court acknowledged that Hohn “suffers from serious health conditions,
some of which predated his arrest,” but declined to “go beyond the four levels . . . already granted
for his health reasons,” noting that “[h]e still, in my opinion, is somewhat of a risk to the
community.” Taking into account the four-level departure, the district court determined that Hohn
had a total offense level of 32 and a criminal history category of I, resulting in a guidelines range of
121 to 151 months of imprisonment. The district court sentenced Hohn to 151 months on each
count, to be served concurrently.
This timely appeal followed. Hohn contends that the district court misapplied USSG
§ 5H1.4, that his sentence is procedurally unreasonable because the district court failed to address
the relative efficiencies and costs of home incarceration as opposed to imprisonment, and that his
sentence is substantively unreasonable in light of his present physical condition.
Hohn moved for a downward departure pursuant to USSG § 5H1.4, which provides in
relevant part:
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Physical condition or appearance, including physique, is not ordinarily relevant in
determining whether a departure may be warranted. However, an extraordinary
physical impairment may be a reason to depart downward; e.g., in the case of a
seriously infirm defendant, home detention may be as efficient as, and less costly
than, imprisonment.
USSG § 5H1.4 (2008 ed.). To the extent that Hohn argues that the district court should have granted
a departure under USSG § 5H1.4 greater than four levels, we lack jurisdiction to consider the degree
of the district court’s departure. See United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008).
Hohn contends that the district court failed to address whether “home detention may be as
efficient, and less costly than, imprisonment,” USSG § 5H1.4, and that we therefore have jurisdiction
to review his sentence because it “was imposed as a result of an incorrect application of the
sentencing guidelines,” 18 U.S.C. § 3742(a)(2). Because Hohn did not object at resentencing to the
district court’s failure to address the relative efficiencies and costs of home incarceration and
imprisonment, we review for plain error. See United States v. Simmons, 587 F.3d 348, 360 (6th Cir.
2009). In support of his argument that the district court misapplied the sentencing guidelines, Hohn
relies on United States v. Bostic, 371 F.3d 865 (6th Cir. 2004), in which we stated that USSG
§ 5H1.4 “require[s] the district court to consider the relative costs and efficiency of home
confinement and imprisonment.” Id. at 875. At resentencing, Hohn merely asserted that he would
be dependent on Medicaid and Medicare for his healthcare if confined at home; he offered no other
evidence regarding the efficiencies and costs of home confinement. Given that the district court
specifically considered whether the Bureau of Prisons could accommodate Hohn’s impairments and
was presented with scant evidence regarding home confinement, the district court did not err, let
alone plainly err, in its application of USSG § 5H1.4. See United States v. Berro, 348 F. App’x 98,
101 (6th Cir. 2009), cert. denied, 130 S. Ct. 1113 (2010).
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Hohn also contends that his sentence is procedurally and substantively unreasonable. We
review the district court’s sentencing determination for procedural and substantive reasonableness
under a deferential abuse-of-discretion standard. United States v. Battaglia, 624 F.3d 348, 350 (6th
Cir. 2010).
We “must first 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.” Gall v. United States, 552
U.S. 38, 51 (2007). Hohn argues that his sentence is procedurally unreasonable because the district
court failed to address the relative efficiencies and costs of home confinement as opposed to
imprisonment. Except for his assertion that he would be dependent on Medicaid and Medicare if
confined at home, Hohn did not make any specific arguments or present any evidence in his
sentencing memorandum or motion for downward departure or at the resentencing hearings
regarding the efficiencies and costs of home confinement. Nor did Hohn make any objection to the
district court’s failure to address the relative efficiencies and costs. Accordingly, we review for plain
error. See United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc); Bostic, 371 F.3d
at 872-73. At resentencing, the district court acknowledged Hohn’s serious health conditions, but
noted that some of his conditions predated his arrest and stated that “[h]e still, in my opinion, is
somewhat of a risk to the community.” The district court satisfied its obligations by addressing the
arguments presented by Hohn and explaining its reasons for declining to go beyond a four-level
downward departure for health reasons. See Rita v. United States, 551 U.S. 338, 358 (2007).
“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
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factors, or gives an unreasonable amount of weight to any pertinent factor.” United States v.
Conatser, 514 F.3d 508, 520 (6th Cir. 2008). We apply a rebuttable presumption of substantive
reasonableness to Hohn’s within-guidelines sentence. United States v. Bolds, 511 F.3d 568, 581 (6th
Cir. 2007). Hohn has failed to rebut that presumption. According to Hohn, his sentence is
substantively unreasonable in light of his exceptional health issues. Again, the district court
considered Hohn’s serious health conditions and granted a four-level downward departure based on
his physical impairments. “The mere fact that [Hohn] desired a more lenient sentence, without more,
is insufficient to justify our disturbing the reasoned judgment of the district court.” United States
v. Trejo-Martinez, 481 F.3d 409, 413 (6th Cir. 2007).
For the foregoing reasons, we affirm Hohn’s 151-month sentence.