                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                       File Name: 07a0378p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                        X
                                   Plaintiff-Appellant, -
 UNITED STATES OF AMERICA,
                                                         -
                                                         -
                                                         -
                                                                No. 05-6874
            v.
                                                         ,
                                                          >
 JACK ALEX BAKER,                                        -
                                  Defendant-Appellee. N

                           Appeal from the United States District Court
                        for the Eastern District of Tennessee at Knoxville.
                       No. 04-00098—Thomas W. Phillips, District Judge.
                                    Argued: January 25, 2007
                            Decided and Filed: September 17, 2007
                    Before: SILER, MOORE, and ROGERS, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: Tracee J. Plowell, ASSISTANT UNITED STATES ATTORNEY, Knoxville,
Tennessee, for Appellant. Kim A. Tollison, FEDERAL DEFENDER SERVICES, Knoxville,
Tennessee, for Appellee. ON BRIEF: Tracee J. Plowell, ASSISTANT UNITED STATES
ATTORNEY, Knoxville, Tennessee, for Appellant. Kim A. Tollison, FEDERAL DEFENDER
SERVICES, Knoxville, Tennessee, for Appellee.
                                       _________________
                                           OPINION
                                       _________________
        SILER, Circuit Judge. Jack Alex Baker pleaded guilty to one count of possessing an
unregistered firearm having a barrel length of less than eighteen inches, in violation of 26 U.S.C.
§ 5861(d). The district court sentenced him to five years’ probation, including house arrest for the
first year of probation. The government now appeals the reasonableness of this sentence. For the
reasons set forth below, we AFFIRM the judgment of the district court.
                                                 I.
       In January 2004, a Blount County Sheriff’s Deputy responded to a call at Baker’s residence
in Maryville, Tennessee. Police reports indicate that Baker’s estranged wife explained that she and
Baker had been arguing about her having recently filed for divorce, and that Baker fired a shotgun
near her head, stating “if he wanted to kill her he could have,” and told her not to call the police.
Baker and his wife now claim that the shotgun was fired accidentally.

                                                 1
No. 05-6874           United States v. Baker                                                       Page 2


       After the shot was fired, Baker left the house in a truck. Another Sheriff’s Deputy later
stopped the vehicle and arrested him for domestic violence and driving under the influence. A
subsequent search of the vehicle yielded four firearms, including a shotgun with a barrel length of
approximately eight inches. In 2005, Baker pleaded guilty to knowingly possessing an unregistered
firearm having a barrel length of less than eighteen inches, in violation of 26 U.S.C. § 5861(d). His
presentence report (“PSR”) set his offense level at 17 and his criminal history category at level II,
based on four prior convictions. The recommended guideline range was 27 to 33 months.
        The statutory maximum sentence for this offense is ten years, 18 U.S.C. § 924(a)(2), but
Baker was eligible for probation. 18 U.S.C. § 3561(c)(1). Because this offense is a felony, a
sentence of probation must also include one of the following conditions: a fine, restitution, or house
arrest. 18 U.S.C. § 3563(a)(2) & (b)(13).
       At the sentencing hearing, the district court granted a downward variance. It justified its
variance by stating:
       Now, the defendant’s been under supervision for a number of months, and he has
       done exceedingly well while he’s been on supervision. I am most impressed by the
       report from his pretrial service officer and from the probation officer that his primary
       concern in all of this is his children, specifically, his older – his son, his older son,
       and what is about to happen to his older son should he be placed in prison.
       Now, that within itself, I don’t believe, is sufficient to allow this court go below the
       guideline range suggested by the sentencing guidelines. But when you couple that
       with the fact that the defendant, apparently, the defendant has demonstrated a serious
       regret for what happened, I think that he has demonstrated that he has learned a
       substantial lesson from what occurred.
       I don’t think that it is necessary to put him in jail in order to protect his wife, and I
       don’t think that it’s necessary to put him in jail to protect the public. I do believe
       that I can fashion a sentence that will reflect the seriousness of this offense, promote
       respect for the law and provide just punishment without placing this man in
       confinement.
        The court ultimately sentenced Baker to five years’ probation, including one year of home
detention. The court also required Baker to undergo mental health counseling, anger management,
and drug and alcohol testing. It its “Statement of Reasons,” the district court explained its decision
to impose a sentence below the recommended guideline range:
       The court has decided to depart from the guideline sentence recommended in this
       case on the basis of the defendant’s stated remorse for his actions and the effect
       incarceration would have on defendant’s older son. The circumstances of the case
       do not reflect a need to protect Mrs. Baker or the public from further crimes of the
       defendant, and restitution is not an issue.
                                                  II.
       Since Booker v. United States, 543 U.S. 220 (2005), established the advisory nature of the
Sentencing Guidelines, we review sentences for reasonableness. United States v. Funk, 477 F.3d
421, 425 (6th Cir. 2007). We conclude that Baker’s sentence was both substantively and
procedurally reasonable.
No. 05-6874           United States v. Baker                                                    Page 3


                                   A. Procedural Reasonableness
       A sentence is procedurally unreasonable if “the district judge fails to ‘consider’ the
applicable Guidelines range or neglects to ‘consider’ the other factors listed in 18 U.S.C. § 3553(a),
and instead simply selects what the judge deems an appropriate sentence without such required
consideration.” United States v. Ferguson, 456 F.3d 660, 664 (6th Cir. 2006) (quoting United States
v. Webb, 403 F.3d 373, 383 (6th Cir. 2005)).
        The government advances four arguments attacking the procedural reasonableness of Baker’s
sentence. First, the government asserts that the district court did not consider all of the § 3553(a)
factors. We have repeatedly noted, however, that “there is no requirement that the district court
engage in a ritualistic incantation of the § 3553(a) factors it considers.” United States v. Chandler,
419 F.3d 484, 488 (6th Cir. 2005). In this case, the district court’s recitation and consideration of
the § 3553(a) factors was “sufficiently detailed to reflect the considerations listed in § 3553(a).”
United States v. McBride, 434 F.3d 470, 474 (6th Cir. 2006). The district court specifically noted
that Baker had done “exceedingly well” while under supervision, that incarceration was unnecessary
to protect either his wife or the public, and that it could “fashion a sentence that will reflect the
seriousness of this offense, promote respect for the law and provide just punishment without placing
this man in confinement.” This provides more than a sufficient basis for meaningful appellate
review, and we find no error.
         The government next argues that the district court failed to determine the nature and
circumstances of the offense charged because it failed to definitively resolve whether Baker and his
wife were involved in a domestic dispute prior to his arrest. Although the presentence report
(“PSR”) noted that the parties disagreed as to whether a domestic dispute occurred, and that the
conflict should be resolved, the government cites no case law for its position that the district court’s
failure to resolve this dispute indicates that it insufficiently considered the nature and circumstances
of the offense. That the district court admitted that it was aware that there may have been a domestic
dispute demonstrates sufficient consideration of the circumstances of the offense.
       We are also unpersuaded by the government’s argument that the district court did not
consider the applicable Guidelines provisions, USSG § 5H1.6 in particular, as well as the Sentencing
Commission’s policy statements. The record indicates that even though the district court did not
expressly mention § 5H1.6, it clearly considered that provision. Baker’s family responsibilities
provided the sole basis for his requested downward variance, which the district court granted.
        The government’s final argument is that the district court used several facts unsupported by
the record in determining Baker’s sentence, including: that Baker had an irreplaceable role as the
primary caregiver for his son, that Baker’s two sons are home-schooled, that Baker “demonstrated
serious regret for what happened,” and that his prior acts of violence were directly related to his
addiction to pain medication. This argument is unavailing because these facts were either included
in Baker’s sentencing memorandum, contained in the PSR, or noted by the court’s pretrial services
or probation offices.
                                   B. Substantive Reasonableness
        The government next contends that Baker’s sentence is substantively unreasonable. “[A]
sentence may [be] substantively unreasonable where the district court ‘select[s] the sentence
arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to consider pertinent § 3553(a)
factors, or giv[es] an unreasonable amount of weight to any pertinent factor.’” Ferguson, 456 F.3d
at 664 (quoting Webb, 403 F.3d at 385) (third through sixth alterations in original); see United States
v. Jones, 489 F.3d 243, 252 n.3 (6th Cir. 2007).
No. 05-6874           United States v. Baker                                                  Page 4


         In United States v. Davis, 458 F.3d 491 (6th Cir. 2006), we adopted an approach to reviewing
an outside-the-guidelines sentence where “we apply a form of proportionality review: the farther the
judge’s sentence departs from the guidelines sentence . . . the more compelling the justification
based on factors in [18 U.S.C] section 3553(a) must be.” Id. at 496 (quotations and citation
omitted). “Although this court has expressed the extent of a variance in terms of a percentage, the
focus of our review of downward variances under the proportionality standard has been on the
district court’s reasons for varying from the advisory guideline range.” United States v. Kathman,
490 F.3d 520, 525 n.4 (6th Cir. 2007).
        That we focus more on the reasons justifying the variance, rather than the extent, is why we
upheld a 99.91% departure in United States v. Husein, 478 F.3d 318, 335 (6th Cir. 2007), but
reversed a 99.89% departure in Davis. Simply put, the defendant in Husein presented a more
compelling justification for a departure. In Husein, the district court imposed a substantially-
reduced sentence, including no incarceration, because Husein presented extraordinary family
circumstances – she shared responsibility with her mother for caring for her father who was
completely incapacitated – justifying the variance. Id. at 321-22. We affirmed, distinguishing Davis
essentially by noting that “the departure’s primary purpose [was] to allow Husein to provide the
assistance that her father needed to survive,” whereas the departure in Davis was motivated by mere
leniency. Id. at 333. We further distinguished Davis by observing that Husein was a more “worthy”
defendant than Davis because Davis neither accepted responsibility for his crime nor showed
remorse for committing it. Id. (citing Davis, 458 F.3d at 498).
        We find it hard to draw any meaningful distinction between the extraordinary circumstances
relied on by the district court in this case and the circumstances presented in Husein. The relevant
family circumstance at issue in this case, like Husein, was the defendant’s role as a caregiver for
another family member. As the district court noted, Baker’s older son, Jack, received a heart
transplant in 2002, and Baker shares the burden of providing constant care for him. Furthermore,
like Husein and unlike Davis, Baker demonstrated remorse for his crime. Therefore, because both
the factors relied upon by the district court and the sentence imposed in this case are virtually
identical to those in Husein, the same outcome is dictated here.
       AFFIRMED.
