            NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                       File Name: 06a0491n.06
                         Filed: July 13, 2006

                                     Case No. 05-2238

                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                  )
                                           )
              Plaintiff-Appellee,          )      ON APPEAL FROM THE
                                           )      UNITED STATES DISTRICT
v.                                         )      COURT FOR THE WESTERN
                                           )      DISTRICT OF MICHIGAN
SCOTT JOSEPH SKIBO,                        )
                                           )
              Defendant-Appellant.         )

BEFORE:       KENNEDY and COLE, Circuit Judges; and VARLAN, District Judge*

              VARLAN, District Judge. Defendant-appellant Scott Joseph Skibo was

sentenced to 144 months incarceration for unarmed bank robbery. On May 31, 2005, this

court affirmed Skibo’s conviction, vacated the sentence, and remanded his case for re-

sentencing consistent with the Supreme Court’s decision in United States v. Booker, 543 U.S.

220 (2005). On remand, the district court imposed the same sentence.

       On appeal, Skibo argues that the trial court failed to adequately articulate the reasons

for his sentence and that a 144-month term of imprisonment is not reasonable. For the

reasons that follow, we AFFIRM the judgment of the district court.




       *
       The Honorable Thomas A. Varlan, United States District Judge for the Eastern District
of Tennessee, sitting by designation.
                                               I.

       On April 25, 2003, Skibo entered a branch of the First National Bank and Trust

located in Iron Mountain, Michigan. He gave a written demand note to the bank teller which,

according to her, stated, “Don’t say anything, and you won’t get hurt. I know where you

live. I want all of your large bills.”1 The teller gave Skibo two stacks of currency totaling

$2,620, after which he fled the bank. Skibo was observed leaving the bank by a retired

police officer who contacted the Iron Mountain Police Department. Skibo then led the police

on a high-speed chase through construction zones, into oncoming traffic, and through police

roadblocks. Skibo was forced from his vehicle when the police used “stop sticks” to deflate

his tires. Skibo then fled on foot and entered a private residence where he was later found

hiding.

       On November 24, 2003, Skibo entered a guilty plea to the charge of bank robbery.

At the initial sentencing hearing on March 3, 2004, the district court calculated the

defendant’s initial Guidelines offense level to be 21, with a criminal history score of V. Due

to the application of U.S.S.G. § 4B1.1, Skibo was found to be a career offender with a

Guidelines offense level of 29, a criminal history score of VI, and a sentencing range of 151

to 188 months. The two career offender predicate offenses were a June 22, 1993 state

conviction for reckless endangerment for discharging a firearm and a federal drug conviction




       1
       During his presentence interview, Mr. Skibo advised that his note basically said, “Just
give me the money and don’t do anything stupid.”

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on March 29, 1995 for conspiracy to manufacture methcathinone, possession of precursor

and listed essential chemicals, and the attempted manufacture of methcathinone.

       After considering the defendant’s arguments that his criminal history was overstated,

and that the court should depart based on diminished capacity and/or the totality of the

circumstances, the district court acknowledged its discretion to depart under the Guidelines

but declined to do so. The district court stated that it had considered all of the information

presented by the parties, and imposed a sentence of 154 months incarceration, with a ten-

month reduction for time served on his related state court conviction and sentence. Neither

party expressed any additional objection to the sentence.

       On May 31, 2005, this court issued an order which confirmed defendant’s conviction,

vacated the sentence, and remanded his case for resentencing consistent with Booker.

       On August 31, 2005, the district court held a resentencing hearing. Both parties

agreed that the career offender enhancement applied to Skibo and that the district court had

correctly calculated the sentencing guideline range. After considering the arguments

presented by both parties, the district court reviewed the defendant’s criminal history and the

nature of the instant offense, including his flight from the police. The district judge

concluded that the “sentence originally imposed was a reasonable sentence” and that he could

not “think of any real reason that [he] could articulate that the sentence should be different,

considering all the facts and circumstances.”




                                              3
                                             II.

       When reviewing the district court’s sentencing determinations, this court reviews the

district court’s factual findings for clear error, while reviewing the district court’s

conclusions of law de novo. United States v. Hazelwood, 398 F.3d 792, 795 (6th Cir. 2005).

This court reviews the sentence imposed for reasonableness. United States v. Williams, 436

F.3d 706, 707 (6th Cir. 2006).

       Following Booker, this court has required a sentencing judge to consider the list of

sentencing factors articulated in 18 U.S.C. § 3553(a). Id. at 708. A sentence is considered

unreasonable when the district judge fails to consider the applicable Guidelines range or the

other factors listed in § 3553(a). United States v. Richardson, 437 F.3d 550, 553 (6th Cir.

2006). A sentence that falls within the advisory Guidelines range is credited with a

rebuttable presumption of reasonableness. Williams, 436 F.3d at 708. However, this

rebuttable presumption does not relieve the sentencing court of its obligation to explain to

the parties and the reviewing court its reasons for imposing a particular sentence.

Richardson, 437 F.3d at 554. Although it need not engage in a “ritual incantation” of the §

3553 factors, the district court must still articulate its reasoning sufficiently to permit

reasonable appellate review by specifying the reasons for selecting the specific sentence

within that range. Williams, 436 F.3d at 709; Richardson, 437 F.3d at 554. The Richardson

court’s cautionary advice is worth repeating:

              We emphasize the obligation of the district court in each case to
              communicate clearly its rationale for imposing the specific sentence.
              Where a defendant raises a particular argument in seeking a lower

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              sentence, the record must reflect both that the district judge considered
              the defendant’s argument and that the judge explained the basis for
              rejecting it. This assures not only that the defendant can understand the
              basis for the particular sentence but also that the reviewing court can
              intelligently determine whether the specific sentence is indeed
              reasonable.

Id. Finally, a resentencing court may revisit the entire sentencing procedure and may rely

upon any legitimate factors in its reassessment of the sentence. United States v. Rodgers, 278

F.3d 599, 602 (6th Cir.), cert. denied, 535 U.S. 946 (2002).

       Skibo first argues that the district court failed to consider all of the sentencing factors

in 18 U.S.C. § 3553(a) because it did not say how the sentence imposed met the requirements

of the statute. Skibo contends that the court did not appear to understand that it had the

discretion to consider all the facts and circumstances of his record, including the timing of

his prior offenses and that it was not required to impose a career offender sentence. Skibo

particularly argues that the district court failed to consider the timing of his 1993 state

conviction for reckless endangerment, where the offense occurred on March 4, 1993, just

outside the ten-year time frame for a career offender predicate offense, and defendant was

convicted on June 22, 1993, just within the ten-year period for a predicate offense. Skibo

also argues that the prior offense occurred when he fired a handgun into the ground in self-

defense in front of four larger men who were chasing him after a bar fight. In support of his

argument, Skibo points to the district judge’s statement at the initial sentencing hearing that

“[t]ime frames are time frames ... some people beat it by a day, and some people beat it by




                                                5
a year. But the time frames are relevant, and they’re pretty much black and white. ...ten years

is ten years. You can’t much get around that.”

       With respect to the timing of defendant’s predicate offenses, defense counsel agreed

at the outset of the resentencing hearing that the career offender enhancement applied.

Nevertheless, Skibo’s argument seems to be that the district court’s failure to depart from that

enhancement was error. Pursuant to Application Note 3 of U.S.S.G. § 4B1.2, the definitions

for computing criminal history in § 4A1.2 are applicable to the counting of convictions for

the career offender enhancement in § 4B1.1. U.S.S.G. § 4A1.2(e)(2) provides that a prior

sentence “that was imposed within ten years of the defendant’s commencement of the instant

offense is counted.” Thus, Skibo’s conviction on June 22, 1993 is within ten years of the

instant offense committed on April 25, 2003. We do not find that the district court abused

its discretion by failing to depart from a correctly calculated advisory Guidelines range.

While the district court perhaps could have been more thorough in explaining its rejection

of this argument, the record reflects that the district court was aware of its discretion at the

resentencing hearing and that it considered the defendant’s arguments.

       In the present case, the resentencing hearing transcript reveals that the district court

sufficiently articulated and explained its reasons for sentencing Skibo to a term at the lower

end of the Guidelines range. The district judge stated at the outset of the resentencing

hearing, “I reviewed everything yet today once again.” After reviewing the previously

developed record and hearing the arguments of counsel and from the defendant, the district

court reviewed the defendant’s Guidelines range and noted that the previous sentence was

                                               6
within that range. The district court then reviewed Skibo’s lengthy criminal history

beginning at age 17 and continuing to the instant offense. The district court next reviewed

the nature and circumstances of the present offense, noting that although Skibo did not have

a weapon “the apparent threat, as any bank robbery, is a violence.” Then, in addressing the

rehabilitation arguments raised by Skibo, the district court stated, “While I can listen to

promises, at a certain stage, you must get to the point where the record speaks louder than

words.” Thus, the district court concluded, “I think that, quite frankly, the sentence

originally imposed was a reasonable sentence. It is within the guideline range. I can’t think

of any real reason that I could articulate that the sentence should be different, considering all

the facts and circumstances. But Mr. Skibo’s record and the nature of the particular offense

and what occurred after the offense here. I mean, it’s a very dangerous situation for

everybody.”

       The record reflects that the district court considered the § 3553(a) factors, including

the nature and circumstances of the offense, the history and characteristics of the defendant,

the need for the sentence to reflect the seriousness of the offense, to provide just punishment,

afford adequate deterrence, and protect the public from further crimes of the defendant.

While the district court did not address all of the § 3553(a) factors, the court is not required

to do so as long as the court sufficiently articulates its reasoning in order to allow for

reasonable appellate review. Williams, 436 F.3d at 708-09. Therefore, the district court

appropriately considered the § 3553(a) factors and articulated the reasons for selecting the

specific sentence within the advisory Guidelines range.

                                               7
                                              III.

       Skibo next argues that a 144-month term of imprisonment is not a reasonable sentence

because the district court refused to lower his sentence in consideration of the fact that he

was convicted of one of his career offender predicate offenses nine years and ten months

before the instant bank robbery. Skibo also argues that the district court was obligated to

consider his personal characteristics, including his diagnosis of impulsivity, attention deficit

hyperactivity disorder (“ADHD”), and substance abuse.

       As noted previously, a sentence that falls within the advisory Guidelines range is

credited with a rebuttable presumption of reasonableness. Williams, 436 F.3d at 708. This

court has previously noted that “Williams does not mean that a Guidelines sentence will be

found reasonable in the absence of evidence in the record that the district court considered

all of the relevant section 3553(a) factors.” United States v. Foreman, 436 F.3d 638, 644

(6th Cir. 2006). Further, “Williams does not mean that a sentence within the Guidelines is

reasonable if there is no evidence that the district court followed its statutory mandate to

‘impose a sentence sufficient, but not greater than necessary’ to comply with the purposes

of sentencing in section 3553(a)(2).” Id.

       As discussed above, the district court considered all of the relevant § 3553(a) factors

and articulated its reasoning to permit reasonable appellate review. The district court

considered and rejected each of the defendant’s arguments at the initial sentencing hearing

and was not required to restate its entire analysis at resentencing. The district court’s refusal



                                               8
to depart from the application of the career offender enhancement was not unreasonable in

light of Skibo’s lengthy criminal history and the nature and circumstances of the offense.

                                            IV.

       For all the reasons discussed above, we AFFIRM.




                                             9
