               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 13a0348n.06

                                       No. 12-5812

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                    )                     FILED
                                             )                 Apr 08, 2013
       Plaintiff-Appellee,                   )           DEBORAH S. HUNT, Clerk
                                             )
v.                                           )
                                             )   ON APPEAL FROM THE UNITED
JAMES E. MAY,                                )   STATES DISTRICT COURT FOR THE
                                             )   EASTERN DISTRICT OF TENNESSEE
       Defendant-Appellant.                  )



       Before: DAUGHTREY, MOORE, and STRANCH, Circuit Judges.


       MARTHA CRAIG DAUGHTREY, Circuit Judge. Defendant James May pleaded

guilty to a charge of being a felon in possession of both ammunition and a firearm and was

sentenced as an armed career criminal to 200 months in prison. On appeal, May contends

that the district court erroneously determined that he previously had been convicted of the

three predicate offenses necessary to justify enhanced sentencing under the Armed

Career Criminal Act, 18 U.S.C. § 924(e). May also submits that his 200-month sentence,

although within the applicable Guidelines range, is unreasonable. We find no merit to

either contention and affirm the judgment of the district court.


       According to reports from the Warren County (Tennessee) Sheriff’s Department,

May barged into a home in which the defendant believed his estranged wife was being

hidden. He kicked in a locked bedroom door and fired two shots into the room, striking a
No. 12-5812
United States v. May


resident of the house in the shoulder and in the eye. Two days later, a Warren County

sheriff’s deputy saw the defendant standing outside another residence and attempted to

arrest him on outstanding warrants. As adduced in the amended factual basis submitted

to the district court in support of May’s guilty plea:


       The defendant fled on foot through a wooded area. After a short chase, he
       was caught and arrested. A search of the defendant revealed two .22 caliber
       rounds of ammunition in his pocket. [The sheriff’s deputy] retraced his route
       and found a .22 caliber pistol on the ground near where the defendant fell in
       his attempt to flee.
       The pistol, a Phoenix Arms .22 caliber handgun, was manufactured outside
       the state of Tennessee. It was loaded with 9 rounds of .22 caliber
       ammunition. Prior to [that date], the defendant had sustained a felony
       conviction.


       The defendant admitted that he was in fact guilty of being a felon in possession of

ammunition and a firearm, and the district court accepted his plea. At the sentencing

hearing, however, the defendant vigorously denied that he was subject to extended

incarceration as an armed career criminal.


       In pertinent part, 18 U.S.C. § 924(e) provides that a felon-in-possession who has

“three previous convictions . . . for a violent felony . . . committed on occasions different

from one another” shall be subject to enhanced punishment. Furthermore, 18 U.S.C.

§ 924(e)(2)(B)(ii) defines the term “violent felony” to include the crime of burglary. Although

May readily acknowledges that his conviction for “burglary other than a habitation” on

January 23, 1990, can be used as one predicate offense in an armed-career-criminal

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United States v. May


calculus, he insists that only one of his two additional convictions for “burglary other than

a habitation” for which he was arrested on January 30, 1990, can be added to the tally.

According to May’s argument, he was arrested for burglaries of the Centertown Market and

of Bell’s Grocery on the same day, and he received concurrent sentences for the two

crimes in single sentencing proceeding. Thus, he insists, the crimes cannot be considered

to have been committed on different occasions, as is required by the provisions of the

Armed Career Criminal Act.


       Although the two January 30 burglaries were committed on the same day, under

Sixth Circuit precedent we must treat the two crimes as separate offenses for armed-

career-criminal purposes. In United States v. Brady, 988 F.2d 664 (6th Cir. 1993), we held,

sitting en banc, that “offenses committed by a defendant at different times and places and

against different victims, although committed within less than an hour of each other, are

separate and distinct criminal episodes and that convictions for those crimes should be

counted as separate predicate convictions under § 924(e)(1).” Id. at 669.


       The record establishes that on January 30, 1990, May and an accomplice “entered

the Centertown Market in Warren County and stole more than 60 cartons of cigarettes and

more than $100 in coins.” The defendant and the same accomplice then “burglarize[d]

Bell’s Grocery in Warren County, stealing beer, rolling papers, two sacks of pennies, about

$800 in quarters, and one bank bag.” Indisputably, those two offenses were committed by

May “at different times and places and against different victims.” Consequently, Brady

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United States v. May


mandates that we treat the two offenses not as a single crime spree, but rather as

calculated decisions to complete one crime and then embark on another. The district court

thus did not err in determining that May had three, not just two, predicate burglary

convictions that would support application of the Armed Career Criminal Act to his

sentencing determination.


       Applying the armed-career-criminal provisions of Section 4B1.4 of the United States

Sentencing Guidelines to May’s situation, the district court, in agreement with both defense

counsel and counsel for government, determined that the defendant was subject to

sentencing within a range of 188-235 months. Rejecting both the government’s request

for a sentence in the middle of the range and the defendant’s request for a downward

variance from the range, or at least sentencing at the low end of the range, the district court

imposed a prison sentence of 200 months. May now contends that the sentence is

unreasonable.


       As has been well-established, we review a district court’s imposition of a sentence

for reasonableness, using a deferential abuse-of-discretion standard. See United States

v. Pearce, 531 F.3d 374, 384 (6th Cir. 2008). Such review “has both a procedural and a

substantive component.” United States v. Erpenbeck, 532 F.3d 423, 430 (6th Cir. 2008)

(citing Gall v. United States, 552 U.S. 38, 51 (2007)). Procedural errors include “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

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United States v. May


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 review for substantive reasonableness “will, of course, take into account the totality

of the circumstances, including the extent of any variance from the Guidelines range.” Id.

“A sentence is substantively unreasonable if the sentencing court arbitrarily selected the

sentence, based the sentence on impermissible factors, failed to consider pertinent

§ 3553(a) factors, or gave an unreasonable amount of weight to any pertinent factor.”

United States v. Cunningham, 669 F.3d 723, 733 (6th Cir.), cert. denied, 133 S.Ct. 366

(2012). Furthermore, “we may apply a rebuttable presumption of reasonableness to

sentences within the Guidelines,” Pearce, 531 F.3d at 384, and may not reverse a district

court’s sentencing determination simply because we “might reasonably have concluded

that a different sentence was appropriate.” Gall, 552 U.S. at 51.


       May initially argued for a downward variance from that applicable sentencing range,

emphasizing his extensive history of mental illness, his prior employment history, and the

fact that the three violent felonies that served as the bases for his enhanced sentence were

committed more than 20 years earlier. The district court denied that request based upon

“the violence in Mr. May’s past conduct[,] . . . to reflect the seriousness of this offense and

provide just punishment for this offense . . . [, and] to protect the public from further crimes

of the defendant.” We find no abuse of discretion in the district court’s determination that

those factors militated against varying from the established Guidelines range.


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United States v. May


       Nor was the court’s ultimate sentencing determination unreasonable – either in the

procedural or the substantive sense. First, the district court properly calculated the

Guidelines range with which both the defendant and the government agreed. Second, the

district judge considered arguments advanced by May for imposing a sentence below the

Guidelines range, thus clearly indicating his recognition that the suggested range was not

mandatory. Third, although the district court’s discussion of its evaluation of the § 3553(a)

factors is not necessarily a model to be emulated by other courts, the district judge did offer

some explanation of his rationale for the sentence imposed. He made mention of the

applicable factors set forth in 18 U.S.C. § 3553(a) to support his determination, and went

so far as to note specifically the need for May to be placed in a correctional facility

“adequate to address his medical needs,” and to recommend “that the defendant receive

substance abuse and mental health evaluation and treatment while in the custody of the

Bureau of Prisons.”


       The 200-month sentence is also substantively reasonable. The district court did not

arbitrarily select a period of incarceration, but instead, took into account the violent nature

of many of May’s criminal acts, the need to deter such conduct in the future, and the need

to protect the general public from such wanton aggression. The defendant has failed to

overcome the presumption that this within-Guidelines sentence was reasonable.


       We conclude that the district court properly sentenced May as an armed career

criminal, and that the 200-month sentence imposed upon the defendant was both

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United States v. May


procedurally and substantively reasonable. We thus AFFIRM the judgment of the district

court.




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