                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 13a0230n.06
                                                                                                    E
                                              No. 12-3524
                                                                                           MAR       2013
                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT                               PE8O S. HUNT, Clerk

UNITED STATES OF AMERICA,                                   )
                                                            )          ON APPEAL FROM THE
        Plaintiff-Appellee,                                 )          UNITED STATES DISTRICT
                                                            )          COURT    FOR    THE
v.                                                          )          NORTHERN DISTRICT OF
                                                            )          OHIO
WENDELL M. STOUTERMIRE,                                     )
                                                            )                   OPINION
        Defendant-Appellant.                                )


BEFORE: NORRIS, GIBBONS, and DONALD, Circuit Judges.

        ALAN E. NORRIS, Circuit Judge. Defendant Wendall Stoutermire pleaded guilty to one

count of aggravated identity theft in violation of 18 U.S.C.    §   1028A(a). He received a sentence of

twenty-three months of incarceration followed by one year of supervised release. The judgment also

ordered the sentence to run consecutively to a “future imposed sentence in Pennsylvania for [a]

probation violation.” On appeal, defendant contends that his sentence was procedurally and

substantively unreasonable because the district court failed to consider adequately the factors set

forth in 18 U.S.C.   §   3553(a). He also challenges the authority of the district court to order the

federal sentence to be served consecutively to an as-yet-unknown state sentence. For the reasons that

follow, we affirm the judgment.

                                                   I.
No. 12-3524
United States v. Stouterm ire

        This prosecution stemmed from defendant’s use ofcounterfeit Michigan driver’s licenses and

credit cards to make fraudulent purchases at several Best Buy stores in northern Ohio. Defendant

was arrested while attempting to make an illegal purchase at a Best Buy store in Mayfield Heights.

Two accomplices were apprehended in the parking lot while defendant was inside. Defendant

initially gave a false name when approached but later cooperated. When the police searched his car,

they found three syringes, a plastic bag with white powder residue, a new iPhone, and two iPads.

        Defendant subsequently entered into a written plea agreement, which provided that defendant

was advised that his plea “requires the Court to impose a mandatory 2 year sentence of

imprisonment.”     However, the agreement also stated that, if the defendant cooperated with

authorities, the government “may move the Court for a substantial assistance reduction pursuant to

U.S. S .G. Section 5K1 .1,” which could result in a sentence of less than twenty-four months. The

government filed the contemplated    § 5K1 .1   motion prior to sentencing and requested a three-level

reduction.

        The district court conducted a sentencing hearing on April 16, 2012. In support of its

substantial assistance motion, the government noted that defendant “immediately admitted to what

was going on, [and] identified the role of the other two individuals who were involved.” He

continued to cooperate as the case proceeded against his co-defendants and was prepared to testify

against them had they elected to go to trial. The Assistant United States Attorney explained that

defendant acted as the straw purchaser. A co-defendant actually held the counterfeit driver’s licenses

and would give one to defendant prior to a purchase. Defendant was paid afier he turned over the

merchandise to his co-defendants.

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        Not surprisingly, defense counsel agreed with the government with respect to the three-level

reduction. After some discussion among the court, counsel, and the probation officer, it was agreed

that the advisory guidelines range was between nine and fifteen months of imprisomnent. The

district court somewhat reluctantly accepted this calculation, observing that “the way this case was

prosecuted and the way the plea was negotiated.     .   .   is somewhat flawed.”

        Defendant, who is now middle-aged, has a history of drug abuse that began at seventeen. In

recent years, he has been addicted to heroin. Defense counsel urged the court to take his client’s

heroin addiction into account as a mitigating factor. After his arrest defendant completed a drug

treatment program, although he relapsed not long thereafter. Despite that relapse, counsel asked that

defendant serve some of his time in a halfway house where he could continue to get treatment.

        The district court was not convinced and, while it accepted that the guidelines range was

between nine and fifteen months, concluded that defendant “is certainly not deserving of a sentence

within that range.” Instead it imposed a sentence of twenty-three months, giving defendant one

month less than the statutory minimum for his cooperation. In reaching this sentence, the court

considered several of the factors listed in 18 U.S.C.        §   3553(a). With respect to the nature and

circumstances of the offense, it observed that “defendant is a 53-year-old male with an extensive

prior record that includes convictions for larceny, assault, receiving stolen property, and other theft

related charges.” In its view, the “instant case is a continuing and recurring theme in the defendant’s

life.” The court also noted that there was an outstanding warrant for defendant’s arrest issued by

a court in Pennsylvania due to a probation violation. This history of crime troubled the court. Of

particular concern to it was the fact that defendant would receive a lighter sentence than his co

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United States v.   Stoutermire


defendants even though “it appears that [the] three defendants [are] equally culpable” and defendant

had “the worst criminal record by far.”

        The court took into consideration that defendant was placed on bond after his arrest,

completed a residential drug program, but, as already mentioned, then tested positive for opiates.

Not only did he test positive, defendant attempted to alter the results of the drug screening. As a

result, the court concluded that “he is certainly not a good risk for any type of community

confinement.”

        With respect to the deterrence factor, the court observed that identity theft burdens the

economy and adversely impacts those whose identity is stolen. In its view, “[A] strong message

needs to be sent, and candidly, in all due respect, even the two year [statutory minimum], at least in

my view, is a slap on the wrist for these kinds of offenses.” Although the court agreed to sentence

defendant below the statutory minimum, it expressed deep-seated reservations:

       He is entitled to certain consideration below the mandatory minimum of two years.
       However, for all the reasons I’ve just stated, including his lengthy record, the
       attempts to try to address his drug addiction while on bond, and primarily for the fact
       this defendant has   .    . at least in my view, the record is deplorable.
                                     .   ,                                            . He is
                                                                                          .   .


       involved with some type of criminal offense virtually once every year.     .




       The court imposed a sentence of twenty-three months of incarceration, one year of supervised

release, ordered $21,419.91 in restitution, and assessed defendant $100. Over defense counsel’s

objection, the court also ordered that defendant’s sentence be served consecutively “to whatever time

is imposed in the Court in Pennsylvania.”

                                                 II.

A. The Reasonableness of the Sentence

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        This court reviews the reasonableness of a sentence under an abuse of discretion standard.

Gall v. United States, 552 U.S. 38, 51(2007). This standard of review applies regardless of whether

the sentence falls inside or outside of the advisory guidelines range. Id. Reviewing courts must first

determine that the sentencing court committed no procedural error, such as improperly calculating

the guidelines range, failing to consider the   §   3553(a) factors, or failing to adequately explain the

reason for its sentence. Id.; United States v. Aleo, 681 F.3d 290, 298 (6th Cir. 2012). If it passes

procedural muster, we ask whether the sentence was substantively reasonable, that is, given the

totality of the circumstances, was it fundamentally fair. Gall, 552 U.S. at 51. While a presumption

of reasonableness applies when the sentence is within the guidelines range, there is no presumption

that the sentence was unreasonable if the sentence imposed falls outside of the range. Id. The extent

of the variance is a factor in the substantive reasonableness inquiry. “If the judge ‘decides that an

outside-Guidelines sentence is warranted, [the judge] must consider the extent of the deviation and

ensure that the justification is sufficiently compelling to support the degree of the variance.” Aleo,

681 F.3d at 299 (quoting Gall, 552 U.S. at 50).

       Defendant does not argue that the guidelines range as accepted by the district court was in

error. He does fault the court, however, for not considering all of the       §       3553(a) factors and for

giving an inadequate explanation of its sentence. Defendant points out that the district court granted

the government’s substantial assistance motion, which lowered the guidelines range to between nine

and fifteen months, a range that the court explicitly accepted only to impose an upward variance.

       While defendant concedes that the district court referenced the            §   3553(a) factors during

sentencing, he notes that the court focused primarily on the negative factors: criminal history, lack

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United States v. Stouterm ire

of compliance on parole, and drug addiction. In his view, the court did not adequately consider his

arguments in favor of mitigation: remorse, acceptance of the need for treatment, and cooperation.

        In this case, the upward variance was substantial, at least in percentage terms. The district

court added eight months to the upper-end of the guidelines range, an increase of approximately

50%. Such variances require district courts to provide “compelling” reasons for their departure.

Aleo, 681 F.3d at 300 (“{T]he greater the variance.        .   .   the more compelling the justification based

on the factors in   §   3553(a) [must be].”) (quotation omitted).

        The government counters that the court correctly explained why, despite his substantial

assistance, defendant did not merit a sentence within the adjusted guidelines range. While it is true

that the court focused upon certain factors of 3 553(a) more than others—specifically, the need for

deterrence and defendant’s criminal history—it provided more than a “bare bones” rationale for its

sentence. See United States v. Wallace, 597 F.3d 794, 805-06 (6th Cir. 2010) (collecting cases where

this court has affirmed a sentence despite a bare bones explanation); United States v. McBride, 434

F.3d 470, 474 (6th Cir. 2006) (“This Court has held that although a sentence should reflect the

considerations listed in § 3553(a), there is no requirement that the district court engage in a ritualistic

incantation of the      § 3553(a) factors it considers.”) (quotation omitted).
        Here, the court expressed strong feelings about two aspects of this case: the need to protect

the public from identity theft, which it viewed as a significant societal problem, and the defendant’s

“deplorable” criminal history. Both of these considerations are legitimate              §   3553(a) factors. In

addition, the court’s concern that defendant was receiving a lighter sentence than his co-defendants



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United States v. Stoutermire

despite a much worse criminal history is perfectly legitimate, although not required. United States

v. Simmons, 501 F.3d 620, 624 (6th Cir. 2007).

        It is true that the court did not dwell on the mitigating factors urged by defendant. Although

it recognized his need for drug treatment, the court determined that his relapse while on bond cut

against confinement in a halfway house.         It also acknowledged defendant’s cooperation but

concluded that, while it was useful, it was not compelling.

        In short, the district court adequately addressed the section 3553(a) sentencing factors and

provided a rationale for why it imposed a sentence below the statutory minimum but above the

adjusted guidelines range. The sentence was both procedurally and substantively reasonable.

B. Consecutive Sentencing

        Defendant next contends that the district court lacked the authority to order that his sentence

be served consecutively to an as-yet-unspecified Pennsylvania sentence. In 2010, defendant was

convicted of simple assault for punching his girlfriend. He received two years of probation, which

he violated almost immediately by failing to report. As a result, an outstanding arrest warrant was

issued, which was pending at the time of his arrest on the federal charges. Even though the

anticipated state sentence was unknown at the time of his federal sentencing, the district court elected

to run it consecutively to his federal sentence over the objection of defense counsel.

       In Setser v. United States, 132 S. Ct. 1463 (2012), the Supreme Court rejected the argument

advanced by defendant by answering the following question in the affirmative: “We consider

whether a district court, in sentencing a defendant for a federal offense, has authority to order that

the federal sentence be consecutive to an anticipated state sentence that has not yet been imposed.”

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Id. at 1466. The Court observed that judges have long had discretion to select between concurrent

and consecutive sentences. Id. at 1468. While the district court cannot ensure that the Pennsylvania

court runs the subsequent state sentence consecutively, that does not mean that it lacks the authority

to order consecutive sentences. As the Supreme Court recognized, “That a sentence is thwarted does

not mean that it was unreasonable. If a district court ordered, as a term of supervised release, that

a defendant maintain a steady job, but a subsequent disability rendered gainful employment

infeasible, we doubt that one would call the original sentence an abuse of discretion.” Id. at 1473.

       In our view, this reasoning applies with equal force to the circumstances before us.

                                                 III.

       The judgment is affirmed.




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