                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0191n.06

                                           No. 11-5144

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                                                                    FILED
UNITED STATES OF AMERICA,                            )                         Feb 16, 2012
                                                     )
       Plaintiff-Appellee,                           )                   LEONARD GREEN, Clerk
                                                     )
v.                                                   )       ON APPEAL FROM THE UNITED
                                                     )       STATES DISTRICT COURT FOR
BERNARD SHAW,                                        )       THE WESTERN DISTRICT OF
                                                     )       TENNESSEE
       Defendant-Appellant.                          )




       Before: MARTIN and McKEAGUE, Circuit Judges; CALDWELL, District Judge.*



       PER CURIAM. Bernard Shaw pleaded guilty to being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g), to carjacking in violation of 18 U.S.C. § 2119, and to using or

carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c).

Shaw now challenges his sentence as being both procedurally and substantively unreasonable.

       The district court adopted the United States Probation Office’s calculations in its amended

presentence report without objections from either party. Shaw’s total offense level under the United

States Sentencing Guidelines for the § 922(g) and § 2119 offenses was twenty-four, with a his

criminal history category of V, yielding an advisory guideline range of ninety-two to 115 months of

imprisonment. The § 924(c) offense carried a mandated consecutive sentence of seven years of

imprisonment. Shaw requested a sentence at the bottom of the guideline range, noting that he had




       *
        The Honorable Karen K. Caldwell, United States District Judge for the Eastern District
of Kentucky, sitting by designation.
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                                                -2-

serious substance abuse and mental health problems. He also emphasized that he had a non-violent

criminal history.

       The district court, after reviewing the statutory sentencing factors of 18 U.S.C. § 3553(a), the

details of the offenses, Shaw’s background, and his criminal history, imposed a sentence of 105

months of imprisonment for the § 922(g) and § 2119 counts, eighty-four months of imprisonment

for the § 924(c) count, resulting in a total of 189 months of imprisonment. This appeal followed.

       We review sentences for procedural and substantive reasonableness. Gall v. United States,

552 U.S. 38, 51 (2007). First, we “ensure that the district court committed no 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.” Id. If no procedural

error occurred, we “then consider the substantive reasonableness of the sentence imposed under an

abuse-of-discretion standard.” Id. A sentence may be substantively unreasonable “if the district

court chooses the sentence arbitrarily, grounds the sentence on impermissible factors, or

unreasonably weighs a pertinent factor.” United States v. Brooks, 628 F.3d 791, 796 (6th Cir.), cert.

denied, 131 S. Ct. 3077 (2011). When a sentence falls within the applicable guideline range, we

afford it a rebuttable presumption of substantive reasonableness. Id.

       Shaw argues that his sentence is procedurally unreasonable because the district court

erroneously found that his criminal history had “escalated” over time. According to Shaw, his
criminal history had actually de-escalated because, until the carjacking, his most recent offenses were

non-violent crimes such as forgery, identity theft, and shoplifting. Because Shaw did not raise this

issue after having been given the opportunity to do so by the district court, the issue is reviewed for

plain error. See id. at 796-97; United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir. 2004).

       Upon review, we find no error, plain or otherwise. The district court accurately summarized

Shaw’s criminal history and recognized that his prior offenses did not involve a level of violence

comparable to the instant carjacking offense. Accordingly, there is no indication that the district

court relied on an erroneous factual finding in selecting its sentence.
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       Shaw also argues that this error rendered his sentence substantively unreasonable because

the error caused the district court to place too much weight on his criminal history. This argument

is unavailing. As Shaw acknowledges, the district court recognized that he did not have a history

of violent offenses, and that the most likely explanation for the instant offense was his recent

substance abuse. The district court recognized, however, that the offense was extremely serious, and

its sentencing explanation neither failed to take into account any of the § 3553(a) factors, nor placed

too much weight on any particular factor or factors. Under these circumstances, Shaw cannot

overcome the presumption that his sentence is substantively reasonable.

       For these reasons, we affirm the district court’s judgment.
