                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 13a0201n.06

                                         No. 11-2144
                                                                                     FILED
                         UNITED STATES COURT OF APPEALS                          Feb 25, 2013
                              FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                      )
                                               )
       Plaintiff-Appellee,                     )
                                               )
v.                                             )    ON APPEAL FROM THE UNITED
                                               )    STATES DISTRICT COURT FOR THE
DAVID LEE OLIVER,                              )    WESTERN DISTRICT OF MICHIGAN
                                               )
       Defendant-Appellant.                    )



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


       MARTHA CRAIG DAUGHTREY, Circuit Judge. Defendant David Oliver pleaded

guilty to a charge of aiding and abetting bank robbery and received a 102-month sentence.

On appeal, Oliver alleges that the district court committed an otherwise unidentified

constitutional error by failing to state explicitly that the court found Oliver guilty of the

offense to which he had just entered a guilty plea. Oliver also claims that the district court’s

upward variance and upward departure from the recommended Guidelines range were

both substantively and procedurally unreasonable. We find no reversible error and affirm.


                     FACTUAL AND PROCEDURAL BACKGROUND


       The record developed at Oliver’s plea hearing established that in January 2011, he

robbed the Huntington National Bank in Grand Rapids, Michigan, obtaining $8,000. Later
No. 11-2144
United States v. Oliver

that same day, Oliver told Albert Thomas that he had robbed a bank and suggested to

Thomas that they should commit another robbery together. Some two weeks later,

Thomas entered a branch of Fifth Third Bank alone and handed the teller a note written

by Oliver that said, “This is a robbery don’t make it a killing.” Thomas obtained $1,520 from

the teller, then ran to a location where he and Oliver had agreed to meet after the robbery.

Thomas was apprehended later that day; Oliver was arrested four months later and was

charged in a three-count indictment with robbing the Huntington National Bank, conspiring

to rob the Fifth Third Bank, and aiding and abetting the latter robbery. Pursuant to a plea

agreement, the government dismissed two of the counts in exchange for Oliver’s guilty plea

to the aiding-and-abetting charge contained in the remaining count.


       At the plea hearing, the district judge determined that Oliver was competent to

proceed and that he understood the consequences of his plea, the potential sentence

under the applicable sentencing guidelines, and the rights he would sacrifice by pleading

guilty. Following the plea colloquy, the district judge declared, “I will accept your guilty

plea . . . . The adjudication of guilt is a matter of record.”


       In preparing the presentence report, the probation officer took note of Oliver’s

history of mental and physical health problems, including a diagnosis of bipolar disorder

in 2005, his medical record of strokes and hypertension, and his long-term history of

alcohol and drug dependency. Also, despite noting “some hesitation” in crediting Oliver

with acceptance of responsibility, the probation officer recommended granting the


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defendant a three-point reduction in his offense level (from 24 to 21). At age 56, Oliver’s

criminal history extended in an almost unbroken line from juvenile offenses beginning in

1968 through the 2011 robberies, including convictions for burglary, larceny, felonious

assault, prison escape, robbery from the person, and multiple driving offenses. Although

all of these prior offenses were noted in the presentence report, only Oliver’s convictions

for two prior bank robberies in 1995, one drug charge in 2008, and two larceny charges in

2008 and 2010 were used to calculate the defendant’s criminal history category. Because

Oliver had been in jail for 10 of the last 15 years, the probation officer concluded that all

the earlier criminal charges were outside the applicable 15-year period provided in

§ 4A1.2(e) of the United States Sentencing Guidelines Manual.


       Based upon the defendant’s Guidelines scores, the presentence report

recommended a sentencing range of 57 to 71 months. Prior to the sentencing hearing, the

government moved for an upward departure or variance, or both, arguing that Oliver’s

criminal history score understated his actual criminal record and risk of recidivism. At the

hearing, the court granted the government’s motion, finding “essentially no breaks in

criminal activity with the exception of . . . time that Mr. Oliver [wa]s in custody.” The court

also noted that the imposition of a lengthy sentence (11 to 30 years) in state prison for the

1995 bank robberies had not deterred Oliver from committing two more bank robberies

under virtually identical circumstances in the instant case. Focusing on the apparent lack

of deterrent effect, the district judge determined that he could not justify sentencing Oliver




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United States v. Oliver

to serve less time for the 2011 robberies than the nine years he had actually served for the

1995 robberies.


       As a result, the district court granted an upward departure in the criminal history

calculation. Without considering any criminal activity outside the 15-year period set by

§ 4A1.2(e), the court found that “category IV on this record [wa]s a substantial

understatement of both the seriousness of Mr. Oliver’s prior criminal history and the

likelihood of recidivism” and that category V was a “more appropriate basis [on which] to

assess [his criminal history].” After accounting for other factual considerations, the district

court determined that “an intended sentence of 102 months” would be appropriate. The

court noted that even with the variance, Oliver’s sentence would be within the guidelines

based on a category V criminal-history calculation.


                                         DISCUSSION


District Court’s Adjudication of Guilt


       On appeal, Oliver first alleges an error that we find completely baseless – both

legally and factually – asserting that the district court’s failure to declare “I find you guilty”

at the plea hearing constituted a constitutional violation and invalidates his conviction. The

government contends that because the defendant did not object during the hearing to the

district judge’s failure to invoke that terminology, we may review the alleged violation for

plain error only. We agree. It is well-settled that a “silent defendant has the burden to


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United States v. Oliver

satisfy the plain-error rule.” United States v. Vonn, 535 U.S. 55, 59 (2002); see also United

States v. Martin, 668 F.3d 787, 791 (6th Cir. 2012). On plain-error review, the “defendant

‘must show that there is (1) error, (2) that is plain, and (3) that affects substantial rights.

If all three conditions are met, an appellate court may exercise its discretion to notice a

forfeited error, but only if (4) the error seriously affects the fairness, integrity, or reputation

of judicial proceedings.’” United States v. Lalonde, 509 F.3d 750, 757-58 (6th Cir. 2007)

(quoting United States v. Murdock, 398 F.3d 491, 496 (6th Cir. 2005)).


       The defendant responds by contending that plain error review is improper because

the judge’s omission amounts to a “structural error,” constituting a “per se violation[ ] of a

constitutional right.” However, defense counsel has failed to identify what constitutional

provision has been violated. Moreover, counsel’s insistence that the district court also

failed to “memorialize [a finding of guilt] in writing on the record” is flatly contradicted by the

district court’s judgment. That document reads in part, “The defendant was adjudicated

guilty of these offense(s): 18 U.S.C. § 2113(a) . . . Bank Robbery.” In fact, counsel

designated the judgment for inclusion in the appellate record and should have been

familiar with its contents. We therefore decline to decide whether our review should be for

plain error or not, because we conclude that there was no error at all.


Procedural and Substantive Reasonableness of the Sentence


       Oliver next contends that the 102-month sentence he received was unreasonable,

a question that we evaluate under an abuse-of-discretion standard of review. United

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United States v. Oliver

States v. Phinazee, 515 F.3d 511, 514 (6th Cir. 2008) (citing Gall v. United States, 552

U.S. 38, 46 (2007)). “The reasonableness review is split into two parts: procedural

reasonableness and substantive reasonableness.” United States v. Benson, 591 F.3d 491,

500 (6th Cir. 2010). The procedural reasonableness of a sentence is determined by the

absence of a “‘significant procedural error, such as failing to calculate (or improperly

calculating) the Guidelines 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.’” United States v. Johnson, 640 F.3d 195,

201-02 (6th Cir. 2011) (quoting Gall, 552 U.S. at 51). “A sentence may be substantively

unreasonable if the district court selects the sentence arbitrarily, bases the sentence on

impermissible factors, fails to consider pertinent § 3553(a) factors or gives an

unreasonable amount of weight to any pertinent factor.” United States v. Vowell, 516 F.3d

503, 510 (6th Cir. 2008) (alterations and internal quotation marks omitted). “Sentences

that are properly calculated and within the applicable Guidelines range are presumptively

reasonable.” Benson, 591 F.3d at 500. Sentences falling outside the range are neither

presumptively reasonable nor presumptively unreasonable. United States v. Tate, 516

F.3d 459, 469-70 (6th Cir. 2008) (citing United States v. Smith, 474 F.3d 888, 892 (6th Cir.

2007)).


Procedural Reasonableness




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United States v. Oliver

       An inquiry into the procedural reasonableness of a sentence proceeds in three

steps. “First, we must ensure that the district court ‘correctly calculat[ed] the applicable

Guidelines range’ which [is] ‘the starting point and initial benchmark’ of its sentencing

analysis.” United States v. Bolds, 511 F.3d 568, 579 (6th Cir. 2007) (first alteration in the

original) (quoting Gall, 552 U.S. at 49); see also Johnson, 640 F.3d at 202. Second, the

district court must give “‘both parties the opportunity to argue for whatever sentence they

deem appropriate’” while “‘consider[ing] all of the § 3553(a) factors to determine whether

they support the sentence requested by [each] party.’” Id. at 579-80 (second alteration in

the original) (quoting Gall, 552 U.S. at 49-50). Third, the reviewing court must ensure that

the district court “‘set forth enough [of a statement of reasons] to satisfy the appellate court

that he has considered the parties’ arguments and has a reasoned basis for exercising his

own legal decision making authority.’” Id. at 580 (alteration in the original) (quoting Rita v.

United States, 551 U.S. 338, 356 (2007)).


       The preliminary question, then, is whether the district court committed a significant

procedural error in calculating the Guidelines range. In this case, the court accepted the

presentence report’s calculation of the appropriate range, before considering any

departures or variances from it. Neither party objected to the initial Guidelines range

identified by the district court.


       Next, we must determine whether the district court sufficiently considered the

appropriate § 3553(a) factors when increasing Oliver’s sentence to 102 months, which


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United States v. Oliver

reflected both a departure and a variance from the suggested Guidelines sentencing

range. In contrast to a departure, a “‘variance’ refers to the selection of a sentence outside

of the advisory Guidelines range based upon the district court’s weighing of one or more

of the sentencing factors of § 3553(a).” United States v. Grams, 566 F.3d 683, 686-87 (6th

Cir. 2009)(citing Smith, 474 F.3d at 896 n.3 (Gibbons, J., concurring)). Although departures

and variances are often evaluated based on the “same facts and analyses,” the standards

for each modification remain “distinct” and should be reviewed as such. Grams, 566 F.3d

at 687.    Generally, departures pursuant to § 4A1.3 of the Guidelines necessitate

consideration of a narrower set of factors than § 3553(a) variances. See United States v.

Tristan-Madrigal, 601 F.3d 629, 635 (6th Cir. 2010) (“Simply stated, ‘variances from

Guidelines ranges that a District Court may find justified under the sentencing factors set

forth in 18 U.S.C. § 3553(a) include a much broader range of discretionary decisionmaking’

than departures” (quoting United States v. Stephens, 549 F.3d 459, 466-67 (6th Cir.

2008)).


       The district court first increased Oliver’s criminal history category from IV to V.

Section 4A1.3(a) of the Sentencing Guidelines allows for such upward departures “when

a defendant’s criminal history category does not adequately reflect his criminal history.”

United States v. Griffin, 530 F.3d 433, 440 (6th Cir. 2008). The district court focused on

the limited period of the 15-year criminal history specified by the Guidelines. Because

Oliver was either in custody or involved in criminal activity during that time, the court



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considered Category IV an inadequate measure of Oliver’s “pattern of criminal

activity . . . [which] reflects badly and predicts ongoing recidivist conduct.”


       This departure alone is insufficient to explain the 102-month sentence, however.

Increasing Oliver’s criminal history category from IV to V would justify a Guidelines

sentence of 70-87 months. To impose a 102-month sentence, the district court was

required to justify an upward variance. In this regard, the district court considered Oliver’s

criminal record in the context of “variance factor[s],” including the striking similarities

between the 1995 and 2011 robberies and the possibility that without a variance, the 2011

conviction could result in a sentence shorter than the sentence Oliver served following his

conviction for the 1995 bank robberies. The court looked to “the need to deter Mr. Oliver

from further wrongdoing, the need to deter other members of the public who may be

similarly inclined[,] . . . [t]he need to promote respect for the law generally[,] . . . and the

need to promote rehabilitative opportunities.” We find no abuse of discretion in the court’s

determination that a variance was appropriate.


       Finally, for a sentence to be considered procedurally reasonable, the district court

must provide an adequate explanation for the sentence, so that a reviewing court may

properly understand the basis for the sentencing decision.             The adequacy of an

explanation is evaluated under the same analysis, “‘regardless of whether the sentence

enhancement constitutes a Guidelines departure or a § 3553(a) variance.’” Johnson, 640

F.3d at 205 (quoting Vowell, 516 F.3d at 510). This requirement has two components:


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United States v. Oliver

“‘First, a district court must explain the reasons justifying a departure, and, second,

evidence of those reasons must appear in the record.’” Id. (quoting Smith, 474 F.3d at

894).


        As discussed above, the district court explained its upward variance and upward

departure by reference to the presentence report, which contained factual findings

undisputed by the parties. The district court discussed its concern with assigning Oliver

a criminal history category of IV, given the extent and continuity of the defendant’s criminal

activity. The district court further analyzed Oliver’s criminal record – in particular the

similarity between the 1995 and 2011 robberies – in explaining why a longer sentence was

necessary to deter Oliver and others and to punish the defendant’s recidivism. The district

judge did not abuse his discretion in relying upon these factors in light of the record before

him.


        The defendant faults the district court for failing to take into consideration the role

that his bipolar disorder played in his extensive criminal history. However, the district judge

was unquestionably aware of Oliver’s mental condition, which was discussed in the

presentence report and at both the plea hearing and the sentencing hearing. The issue

was also raised in the defendant’s sentencing memorandum, in the context of asking for

placement in a “federal institution that could best assist [Oliver].” The district judge

responded to these arguments by calling 102-month sentence “adequate punishment”

given Oliver’s “very real addiction problem and . . . mental health dimensions.” The district


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United States v. Oliver

judge thus showed himself to be “fully aware of defendant’s various physical ailments” by

imposing a sentence that he believed to “take[ ] them into account” and to be “appropriate.”

Rita, 551 U.S. at 358. The district judge’s explanation, although somewhat cursory, is

sufficient to show the court’s consideration of Oliver’s health, a possible § 3553(a) factor

counseling against a longer sentence.


       Because the district judge followed the dictates of this court and the United States

Supreme Court in calculating the Guidelines range and in considering the appropriate

sentencing factors, we conclude that the 102-month sentence imposed upon Oliver was

procedurally reasonable.


Substantive Reasonableness


       In arguing that his sentence is substantively unreasonable, Oliver first objects to the

district court’s consideration of prior convictions greater than 15 years old. The record

reflects, however, that at Oliver’s sentencing hearing the district judge took notice of

several appropriate § 3553(a) factors, focusing much of its discussion on § 3553(a)(2)(B)

(“the need for the sentence imposed . . . to afford adequate deterrence to criminal

conduct”). Such concern with deterrence and recidivism was not arbitrary but, instead,

reflected the district court’s weighing of the parties’ contentions.       In particular, the

parallelism between the 1995 and 2011 robberies weighed heavily in the district court’s

reasoning. The court also observed that Oliver would be provided medical and addiction

treatment in custody, suggesting the relevance of § 3553(a)(2)(D) (“to provide the

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United States v. Oliver

defendant with needed education or vocational training, medical care, or other correctional

treatment in the most effective manner”) as well. Given his consideration of these factors,

we cannot say that the district judge abused his discretion by concluding that a 102-month

sentence was appropriate.


       The defendant also argues that his “return to the criminal justice system . . . must

be evaluated in light of his bipolar disorder.” Citing a University of Texas study, the

defendant notes that those with “untreated bipolar disorder are more likely to have contact

with the criminal justice system and have higher rates of incarceration than the general

public,” as well as substance abuse issues. The defendant suggests that this causal

relationship renders his sentence substantively unreasonable for two reasons.


       Oliver contends, first, that his bipolar disorder helps explain his extensive criminal

history and, as a result, that the sentencing court was misguided in its evaluation of his

recidivism. Specifically, Oliver posits that his repeated offenses are not proof that his prior

sentences have failed to deter future criminal activity but are instead the consequence of

his mental illness.       But the district court clearly took Oliver’s mental illness into

consideration in his sentencing. Indeed, the judge seemed to feel that he could have

imposed an even greater custodial sentence but found it unnecessary precisely because

of Oliver’s mental and physical condition, finding 102 months “adequate” punishment

because of Oliver’s “real addiction problem” with “mental health dimensions.”




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United States v. Oliver

       Second, in light of his mental condition, Oliver suggests that 102 months may be so

severe a sentence as to “impair his rehabilitation,” citing two cases to bolster his argument.

Unfortunately for Oliver, neither case supports his claim. In United States v. Collington,

461 F.3d 805, 808 (6th Cir. 2006), we found a district court’s downward variance

reasonable for a defendant whom the court considered to be an “outlier.” The defendant

did not have an extensive criminal history, but still fell into category IV under the Guidelines

– a result the judge found inappropriate. As part of his sentencing, the judge also ordered

mental health counseling for the defendant to confront childhood trauma; however, the

judge gave no indication that the defendant’s mental health condition figured into his

decision to grant a downward variance. Id. at 809. Similarly, in Gall, the Supreme Court

quoted a district court’s determination that the defendant’s lack of criminal history and

withdrawal from the criminal conspiracy, as well as his post-offense conduct, suggested

that probation was a more appropriate punishment than incarceration. 552 U.S. at 44-45.

Again, neither the district court nor the appellate courts suggested that Gall’s mental health

condition warranted a lower sentence because a longer sentence for a mentally ill

individual would “impair his rehabilitation.” Thus, the district court’s failure to view a 102-

month sentence as a potential inhibition to Oliver’s rehabilitation was not obviously

unreasonable. Nor did the district court abuse its discretion in deciding that a 102-month

sentence adequately balanced the needs for rehabilitation and punishment.


       Oliver has thus failed to establish that the sentence imposed upon him was

substantively unreasonable.

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United States v. Oliver

                                      CONCLUSION


For the reasons set out above, we conclude that the district court properly complied with

the requirements of Federal Rule of Criminal Procedure 11 in accepting Oliver’s guilty plea.

In addition, the 102-month sentence imposed upon the defendant was, under the facts of

this case, both procedurally and substantively reasonable. We therefore AFFIRM the

judgment of the district court.




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