                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 10a0073n.06

                                             No. 08-4517
                                                                                             FILED
                              UNITED STATES COURT OF APPEALS
                                                                                          Feb 04, 2010
                                                                                    LEONARD GREEN, Clerk
                                   FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                       )
                                                )
        Plaintiff-Appellee,                     )       ON APPEAL FROM THE UNITED
                                                )       STATES DISTRICT COURT FOR THE
v.                                              )       SOUTHERN DISTRICT OF OHIO
                                                )
BRYAN MILLS,                                    )
                                                )       OPINION
        Defendant-Appellant.                    )
                                                )


        Before: MARTIN and WHITE, Circuit Judges; and ZOUHARY, District Judge.*

        ZOUHARY, District Judge

                                           INTRODUCTION

        This is a direct appeal by defendant Bryan Mills from the judgment entered upon his

conviction for bank fraud after a guilty plea. The district court sentenced Mills to 72 months of

incarceration, 5 years of supervised release, $94,564 in restitution, and the mandatory $100 special

assessment. This timely appeal followed. This Court has appellate jurisdiction pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742.




* The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by
designation.

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        Mills argues on appeal that the 72 month sentence was outside the Guideline range and

unreasonable. But the sentence was actually within the Guideline range of 63 to 78 months. The

confusion in this case stems from a simple typographical error in the original transcript of the

sentencing hearing. That transcript recorded the district court judge misstating the Guideline range

as 63 to 68 months, when the judge in fact recited the correct range of 63 to 78 months, as reflected

in the corrected transcript.

        We AFFIRM the sentence for the reasons described below.

                                          BACKGROUND

        From October 2006 to September 2007, Mills defrauded National City Bank (NCB) and

others by writing a total of $66,151 in checks against closed accounts or accounts containing

insufficient funds (Presentence Investigative Report (PSR) ¶ 5). In October 2006, Mills opened a

joint checking account at NCB in the name of Bryan and Angela Mills. From October 2006 until

March 2007, five worthless checks were deposited into the account. Mills wrote more than 40

checks, drawn on the NCB account, that were returned due to insufficient funds (PSR ¶ 6).

        Mills opened a second account at NCB in November 2006 in the name of Bryan Mills, dba

Mills Inspections. From January 2007 until September 2007, multiple worthless checks, drawn on

other accounts with US Bank, First Merit Bank, and Huntington National Bank, were deposited into

this NCB account. Mills wrote at least 70 checks with insufficient funds from this second NCB

account (PSR ¶ 7).

        A criminal complaint was filed against Mills on September 4, 2007. Those charges were not

the extent of his fraudulent activity however. Prior to the instant case, Mills was on supervised

release for a previous wire fraud conviction from November 2003. Mills passed more bad checks


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in August 2007 and January 2008 (after his October 30, 2007 guilty plea in the instant case), the

latter resulting in an Ohio state court conviction and a sentence of one year of probation (PSR ¶¶ 8-

9).

       In addition, after Mills was charged in this case, investigators discovered another 100

worthless checks previously written by Mills, the vast majority from March 2006 through December

2007 to Dillard’s stores throughout Ohio and Sears stores in Columbus. Finally, even more checks

written by Mills (for which the merchants cannot be identified due to poor handwriting) were

discovered, bringing the total amount of worthless checks to $114,564 (PSR ¶ 10).

       On September 12, 2008, the district court held a sentencing hearing. Mills argued that both

his mental illness as well as his family ties and responsibilities justified a downward departure from

the Guideline range. The district court declined to depart downward (TR 5-22). The district court

heard argument on the Section 3553(a) factors, explained how the factors applied to Mills, and then

found a sentence in the middle of the range was appropriate (TR 31).

                                             ANALYSIS

       This Court reviews a sentence for both procedural and substantive reasonableness “under a

deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007); United

States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005). The procedural component is addressed first, and

we look to

       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 –
       including an explanation for any deviation from the Guidelines range.

Gall, 552 U.S. at 51.


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       After examining the procedural reasonableness component, this Court “consider[s] the

substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. This

substantive analysis “take[s] into account the totality of the circumstances, including the extent of

any variance from the Guidelines range.” Id. “A sentence may be considered 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.’” United States v. Collington, 461 F.3d 805, 808 (6th Cir.

2006) (quoting United States v. Webb, 403 F.3d 373, 385 (6th Cir. 2005)). In this Circuit, a sentence

that falls within the Guideline range enjoys “a rebuttable presumption of reasonableness,” and the

defendant bears the burden of rebutting this presumption. United States v. Williams, 436 F.3d 706,

708 (6th Cir. 2006).

       Procedural Reasonableness

       Mills does not raise any procedural reasonableness arguments, nor can we find any

procedural errors in the record. The judge properly considered the Section 3553(a) factors and

explained his reasoning (TR 27-31). The judge properly calculated the Guideline range, treated the

range as advisory, not mandatory, and did not rely on any clearly erroneous facts. Therefore, the

sentence was procedurally reasonable, and we move to the substantive reasonableness inquiry. Gall,

552 U.S. at 51 (the appellate court examines a sentence’s reasonableness only when “the district

court’s sentencing decision is procedurally sound”).

       Substantive Reasonableness

       Mills argues that the district court erred by sentencing him to an upward variance based on

his mental illness. However, the 72 month sentence was within the properly calculated Guideline


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range of 63 to 78 months. The issue therefore is not whether his mental illness was wrongfully used

to justify an upward variance, but rather whether his sentence was substantively reasonable in light

of his mental health issues.

        A sentence within the applicable Guideline range is presumed to be substantively reasonable

in this Circuit. Williams, 436 F.3d at 708. Mills’ sentence therefore enjoys the benefit of this

presumption, which Mills has failed to rebut. Mills fails to show that his “special circumstances are

special enough that, in light of § 3553(a), they require a sentence lower than the sentence the

Guidelines provide.” United States v. Vonner, 516 F.3d 382, 390 (6th Cir. 2008) (en banc)

(emphasis in original) (quoting Rita v. United States, 551 U.S. 338, 360 (2007)).

        Mills argues that the district judge erred by using Mills’ “ongoing mental illness as an

aggravating factor and the need to punish him severely” as reasons for an upward “departure”

(Appellant Brief, p. 13).1 However, the judge properly considered Mills’ history of mental illness

in the course of examining the Section 3553(a) factors. Indeed, there was extensive discussion at

the hearing about Mills’ mental illness, and the judge was not convinced that it justified either a

downward departure under U.S.S.G. Section 5K2.13 or a downward variance (TR 18-20, 28).

        The judge further noted that Mills had raised a similar mental health argument at his 2004

sentencing on wire fraud charges (TR 15):



1
  Mills, represented by new counsel on appeal, relied on a sentencing hearing transcript which, until the
week before the case was submitted, incorrectly attributed a misstatement by the trial judge (TR 31):

        I believe that a sentence within the sentencing guidelines would be an appropriate sentence
        in this case . . . . The guideline sentencing range is 63 to 68 [now corrected to 78] months,
        and the Court believes that a sentence of 72 months incarceration would be an appropriate
        sentence in this case considering all of the factors that I have discussed in this sentencing
        hearing.

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          [W]hat bothers me is that the same arguments were made [at the 2004 sentencing]
          as are being made again here today. He’s got mental health issues. That’s why he’s
          writing bad checks. But he’s receiving counseling and everything is under control,
          and he won’t do it again. But now here he is again doing the same thing. And not
          only getting caught again and indicted again, but also continuing to do it while he’s
          on – released on bond and doing it while he’s on supervised release [in the 2004]
          case.

       The judge found that the mental health issues did not explain Mills’ continued criminal

activity. The judge also noted “that when the Bureau of Prisons received the information in the PSI

regarding his mental health issues, that [Defendant] will receive appropriate mental health care, and

the Court is going to include in its sentencing order in this case the specific recommendation that he

be assessed for continuing mental health care in a federal facility” (TR 29). See, e.g., United States

v. Clark, 328 F. App’x 992, 999-1000 (6th Cir. 2009); United States v. Williams, 333 F. App’x 63,

71 (6th Cir. 2009) (recommendation that a defendant receive mental health or substance abuse

treatment while incarcerated is appropriate weighing of Section 3553(a) factors). In sum, the judge

did not use Mills’ mental illness as an “aggravating factor” or give it “an unreasonable amount of

weight.” See Collington, 461 F.3d at 808.

       Having thoroughly considered all of the Section 3553(a) factors, including the need for the

sentence to provide just punishment, the judge imposed a substantively reasonable sentence of 72

months.

                                            CONCLUSION

       We AFFIRM the sentence of 72 months incarceration.




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