                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                    File Name: 15a0217n.06

                                           No. 14-1091

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                               FILED
UNITED STATES OF AMERICA,                            )                   Mar 19, 2015
                                                     )               DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                           )
                                                     )       ON APPEAL FROM THE UNITED
                                                     )       STATES DISTRICT COURT FOR
v.                                                   )       THE EASTERN DISTRICT OF
                                                     )       MICHIGAN
                                                     )
RAHSEAN CARTER,                                      )       OPINION
                                                     )
       Defendant-Appellant.                          )
                                                     )

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

       PER CURIAM. Defendant Rahsean Carter pleaded guilty to being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g). On appeal, Defendant asserts that (1) his sentence

is unreasonable because the district court failed to reduce his offense level to reflect his minor

role in the offense; (2) his sentence is unreasonable because it is disproportionate and fails to

represent an appropriately individualized sentence where the district court cited general

deterrence as a sentencing factor; (3) his constitutional rights were violated when the district

court, rather than a jury, determined as part of sentencing that the firearm possessed by

Defendant was stolen; and (4) the stolen-firearms sentence enhancement was unconstitutional

because there was no evidence that Defendant had reason to believe the firearm was stolen.

Finding no error, the judgment of the district court is affirmed.
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                                                I.

       The facts are straightforward and uncontested, with one exception noted below. Agents of

the Bureau of Alcohol, Tobacco, Firearms, and Explosives interviewed a confidential informant

in connection with the investigation of a suspected dealer of illegal firearms and drugs. The

agents requested that the informant arrange to purchase two handguns from the suspected dealer.

The informant and the suspected dealer met on the front porch of a residence in Detroit,

Michigan. Defendant arrived soon after and removed a white folded up shirt from the trunk of

his car. The government suggests that the firearms were brought to the sale by Defendant in the

folded up shirt, but Defendant denies it, and the district court did not rely on that fact at

sentencing. Defendant admits that he took possession of the revolver to be sold and fired it into

the air to demonstrate to the buyer that the firearm was functional, and then he wiped down the

firearm with the white shirt. The investigation revealed that Defendant had a prior felony

conviction and that the firearm was stolen.

       Defendant was charged and pleaded guilty to being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g). At sentencing, the base offense level was calculated to be

twenty, with a two-level enhancement because the firearm was stolen, and a three-level reduction

for acceptance of responsibility, for a total offense level of nineteen. With Defendant’s criminal

history score of five, resulting in a category of III, the sentencing guidelines range was thirty-

seven to forty-six months’ imprisonment. The district court sentenced Defendant to forty-one

months.

                                               II.

       We will address each of Defendant’s arguments in turn. We review a district court’s

sentencing guideline calculation de novo, United States v. Wendlandt, 714 F.3d 388, 393 (6th Cir.



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2013), and review the reasonableness of the sentence for abuse of discretion. Gall v. United

States, 552 U.s. 38, 51 (2007).

       A. Role in the Offense

       Defendant first argues that the district court should have, on its own initiative, applied an

offense level reduction because Defendant’s role in the offense was “substantially less” than the

other perpetrators. Defendant argues that he provided only minor assistance in the sale of the

firearm. The problem with Defendant’s argument is that he was charged under § 922(g), felon in

possession of a firearm, not § 922(a)(1)(A), which prohibits unlicensed “dealing in firearms.” If

the district court had sentenced Defendant based on the relevant conduct being the sale of

firearms, the sentencing guidelines call for a four-level increase in the offense level. See USSG

§ 2K2.1(b)(5) (“If the defendant engaged in the trafficking of firearms, increase by 4 levels.”).

       Defendant pleaded guilty to being a felon in possession of a firearm. Though the district

court referenced “selling guns” and “putting guns on the street” as it stepped through the

sentencing factors under 18 U.S.C. § 3553(a), the court did not apply the firearms trafficking

enhancement under the guidelines. It follows that Defendant’s role in “trafficking” the firearms

is not the pertinent inquiry when reviewing whether Defendant is entitled to a reduction for his

role in the offense. By test-firing the revolver, Defendant was alone fully culpable in

“possessing” the firearm. A mitigating role offense level reduction is “not applicable unless more

than one participant was involved in the offense.” USSG § 3B1.2, comment. (n.2).

       B. Reasonableness of Sentence

       Defendant claims that his sentence is substantively unreasonable because it is greater than

necessary to accomplish the goals outlined in 18 U.S.C. § 3553(a). Defendant must overcome a




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                                                                                               14-1091

rebuttable presumption that his within-guidelines sentence was substantively reasonable. United

States v. Kamper, 748 F.3d 728, 739–40 (6th Cir. 2014) (citation omitted).

          The gist of Defendant’s argument can be summarized in three points: (1) Defendant’s

biggest problem is drug addiction, and forty-one months is longer than necessary to complete

drug rehabilitation in prison, (2) the district court improperly weighted general criminal

deterrence rather than applying an individualized sentence commensurate with the culpability of

Defendant, and (3) because the sentence is not “suitable” it violates Defendant’s Eighth

Amendment right to be free from cruel and unusual punishment.

          The district court did consider Defendant’s drug problem as a factor at sentencing.

However, it does not follow that any sentence longer than a prison drug rehabilitation program is

unreasonable. Further, Defendant also complains that the district court considered general

criminal deterrence as a factor. On that point, this court has previously rejected the argument that

considering general deterrence as part of sentencing is improper. See, e.g., United States v.

Phinazee, 515 F.3d 511, 515 (6th Cir. 2008) (“The plain language of [§ 3553]—that courts may

‘afford adequate deterrence’ in sentencing—also militates against limiting the authority of the

court to specific deterrence.”) (quoting United States v. Turner, 173 F. App’x 402, 408 (6th Cir.

2006)).

          The district court considered myriad factors beyond Defendant’s drug problem and

general deterrence, including the severity of the crime and the fact that Defendant was young yet

had a significant criminal history, including another gun-related offense committed only three

months prior to the instant offense. Because Defendant’s argument “ultimately boils down to an

assertion that the district court should have balanced the § 3553(a) factors differently, it is

‘simply beyond the scope of our appellate review, which looks to whether the sentence is



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reasonable, as opposed to whether in the first instance we would have imposed the same

sentence.’” United States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008) (quoting United States v.

Ely, 468 F.3d 399, 404 (6th Cir. 2006)). Defendant has offered little to suggest that his sentence

is unreasonable, just that he believes it to be too long.

       Finally, Defendant offers no real support for his claim that his within-guidelines sentence

is cruel and unusual punishment under the Eighth Amendment. The lack of a developed

argument is not surprising, because “this court has held that an Eighth Amendment challenge

must fail if a defendant receives a sentence within the guideline range, when the guideline range

contemplates the gravity of the offense, which is what the district court imposed in this case.”

United States v. Abdulmutallab, 739 F.3d 891, 907 (6th Cir. 2014) (citation omitted).

       C. Judicial Fact-Finding

       Defendant argues that the district court’s determination at sentencing that the firearm he

possessed was stolen constitutes improper judicial fact-finding under Alleyne v. United States,

133 S. Ct. 2151 (2013). Defendant is mistaken. Alleyne provides that, “Facts that increase the

mandatory minimum sentence are . . . elements and must be submitted to the jury and found

beyond a reasonable doubt.” Id. at 2158 (emphasis added). However, Alleyne does not apply to

Defendant’s situation because no mandatory minimum sentence is involved. See id. at 2163

(“Our ruling today does not mean that any fact that influences judicial discretion must be found

by a jury. We have long recognized that broad sentencing discretion, informed by judicial

factfinding, does not violate the Sixth Amendment.”). Further, “[I]n binding published opinions,

we have already held that the Supreme Court’s decision in Alleyne did not change the

preponderance of the evidence standard for fact finding under the Sentencing Guidelines.”

United States v. Louchart, 579 F. App’x 492, 495 (6th Cir. 2014) (citing United States v. Cooper,



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739 F.3d 873, 884 (6th Cir. 2014); United States v. Johnson, 732 F.3d 577, 584 (6th Cir. 2013)).

Defendant’s argument on this issue fails.

       D. Stolen Firearm Mens Rea

       Finally, Defendant argues that applying a stolen-firearm sentence enhancement without

evidence that Defendant knew or should have known that the firearm was stolen violates Due

Process. Under the sentencing guidelines, no mens rea is required for the stolen-firearm

enhancement. See USSG § 2K2.1, comment. (n.8) (“[Enhancement] applies regardless of

whether the defendant knew or had reason to believe that the firearm was stolen . . . .).

       Defendant concedes that we have previously rejected his argument. See United States v

Murphy, 96 F.3d 846, 849 (6th Cir. 1996) (“The omission of a mens rea requirement for the

stolen gun sentencing enhancement under [the sentencing guidelines] does not violate due

process.”); see also United States v. Moore, 372 F. App’x 576, 578 (6th Cir. 2010). We have no

authority to reconsider that position here.

                                                III.

       The judgment is affirmed.




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