                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 18a0475n.06

                                           No. 17-1994

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                      FILED
                                                                                Sep 20, 2018
UNITED STATES OF AMERICA,                              )                    DEBORAH S. HUNT, Clerk
                                                       )
       Plaintiff-Appellee,                             )
                                                       )    ON APPEAL FROM THE UNITED
v.                                                     )    STATES DISTRICT COURT FOR
                                                       )    THE WESTERN DISTRICT OF
JOSEPH ALLEN ELLSWORTH,                                )    MICHIGAN
                                                       )
       Defendant-Appellant.                            )




       BEFORE: BATCHELDER, DONALD, and THAPAR, Circuit Judges.

       PER CURIAM. Joseph Allen Ellsworth appeals his 168-month sentence for armed bank

robbery. As set forth below, we AFFIRM Ellsworth’s sentence.

       A grand jury returned an indictment charging Ellsworth with two counts of armed bank

robbery in violation of 18 U.S.C. § 2113(a) and (d). These charges arose from the armed robbery

of the Fifth Third Bank in Wyoming, Michigan, on July 11, 2016, and again on July 20, 2016.

After a three-day trial, a jury found Ellsworth guilty of the July 20 robbery but acquitted him of

the July 11 robbery.

       Ellsworth’s presentence report set forth a guidelines range of 120 to 150 months of

imprisonment based on a total offense level of 26 and a criminal history category of VI. After

considering the sentencing factors under 18 U.S.C. § 3553(a), the district court determined that an

upward variance of two levels was appropriate, resulting in a new guidelines range of 140 to 175

months of imprisonment. The district court sentenced Ellsworth toward the upper end of that range
No. 17-1994
United States v. Ellsworth

to 168 months of imprisonment. On appeal, Ellsworth challenges his 168-month sentence as

procedurally and substantively unreasonable.

       Ellsworth first argues that the district court procedurally erred by failing to explain its

decision to vary upward by 18 months, as opposed to some other number of months. If the district

court imposes a sentence outside the advisory guidelines range, “the court is required to state ‘the

specific reason for the imposition of’ its departure or variance.” United States v. Zobel, 696 F.3d

558, 566 (6th Cir. 2012) (quoting 18 U.S.C. § 3553(c)(2)). At the conclusion of the sentencing

hearing, defense counsel made a general objection to the upward variance, but acknowledged that

the district court had addressed all of Ellsworth’s arguments. Because Ellsworth failed to object

to the adequacy of the district court’s explanation for the 18-month upward variance—“an issue

that became apparent as soon as the court finished announcing its proposed sentence and that

counsel nonetheless declined the court’s invitation to address”—we review for plain error. United

States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc). “To demonstrate plain error, a

defendant must show: ‘(1) error (2) that was obvious or clear, (3) that affected defendant’s

substantial rights and (4) that affected the fairness, integrity, or public reputation of the judicial

proceedings.’” United States v. Taylor, 800 F.3d 701, 714 (6th Cir. 2015) (quoting United States

v. Wallace, 597 F.3d 794, 802 (6th Cir. 2010)).

       Ellsworth cannot show error, let alone plain error. The district court articulated specific

reasons for applying a two-level upward variance. First, the district court varied upward to protect

the public from further crimes by Ellsworth. Reviewing Ellsworth’s criminal history, the district

court pointed out that Ellsworth fell within criminal history category VI “at a very young age” and

that his prior convictions “all involve[d] taking other people’s property for his own use.” (RE 50,

Sentencing Tr., Page ID ## 288-89). According to the district court, Ellsworth posed “an extreme


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United States v. Ellsworth

risk” to the public. (Id. Page ID # 288). The district court next addressed the need to deter

Ellsworth and others, stating that armed bank robbery is punishable by up to 20 years in prison:

“That’s a clear indication that the executive and legislative branches of government believe that if

you commit this offense, it’s very serious, and you must expect to be punished for it.” (Id. Page

ID # 289). Finally, the district court emphasized the seriousness of the offense and the traumatic

impact on the victims. The record shows that the district court adequately explained its decision

to apply a two-level upward variance and impose a sentence at the upper end of the new guidelines

range.

         Ellsworth relies on United States v. Cousins, 469 F.3d 572 (6th Cir. 2006), in which this

court remanded for resentencing where the district court failed to provide an adequate explanation

for a two-month upward variance. In addition to failing to provide its reasoning for the upward

variance, the district court in Cousins also failed to address the defendant’s request for concurrent

sentencing and failed to mention the applicable guidelines range. Id. at 578. By contrast, the

district court in this case stated the applicable guidelines range, discussed its reasons for varying

upward from that range, and confirmed that it had addressed all of Ellsworth’s arguments. Unlike

the district court in Cousins, the district court here “explained ‘its reasoning to a sufficient degree

to allow for meaningful appellate review’—the touchstone of procedural reasonableness.” Zobel,

696 F.3d at 569 (quoting United States v. Brogdon, 503 F.3d 555, 559 (6th Cir. 2007)).

         Ellsworth next argues that the district court imposed a substantively unreasonable sentence

by tethering the upward variance to his mental illness. We review the substantive reasonableness

of Ellsworth’s sentence under a deferential abuse-of-discretion standard. See Gall v. United States,

552 U.S. 38, 51-52 (2007). “The essence of a substantive-reasonableness claim is whether the

length of the sentence is ‘greater than necessary’ to achieve the sentencing goals set forth in 18


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United States v. Ellsworth

U.S.C. § 3553(a).” United States v. Tristan-Madrigal, 601 F.3d 629, 632-33 (6th Cir. 2010).

“A sentence may be considered substantively unreasonable when the district court selects a

sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant

sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.” United

States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008).

       Ellsworth asserted in his sentencing memorandum that he has the ability to be a productive

member of society when he is treating his bipolar disorder and that his untreated bipolar disorder

at the time of the offense supported a sentence near the middle of the guidelines range. At

sentencing, defense counsel stated that “there is a marked difference between Mr. Ellsworth who

is treating for his bipolar disorder and Mr. Ellsworth who is not” and that, “when he stopped taking

his medication, it was a downward slippery slope where he descended into the position where he

found himself in July, standing in a Fifth Third Bank conducting a robbery and harming people.”

(RE 50, Sentencing Tr., Page ID ## 283-84).

       Addressing these arguments, the district court recommended that Ellsworth receive a

mental health evaluation and treatment while imprisoned, but found that his failure to address his

mental health issues and take his medication provided “no excuse” for his offense. (Id. Page ID #

287). The district court expressed hope that Ellsworth “can get his arms around the issue and make

his treatment more effective for a longer period of time” and “become a law abiding member of

society for the remainder of his life,” but noted that he had failed to address his mental health

issues in the past. (Id. Page ID ## 289-90). Given that Ellsworth invited the district court to

consider his potential for success when treating his bipolar disorder, the district court did not abuse

its discretion in noting his past failure to manage his mental health issues.




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United States v. Ellsworth

       Ellsworth contends that the district court abused its discretion in stating that he had “plenty

of opportunity” to address his mental health issues in the past, asserting that he was diagnosed and

treated in state custody but had difficulty obtaining his medication while on parole. (Id. Page ID

# 287). Ellsworth, who “was accepted into a vigorous and highly principled housing and parolee

support program,” failed to provide the district court with any information about his attempts to

obtain medication or other treatment while on parole and participating in this program. (RE 44,

Sentencing Memo., Page ID # 256).

       Contrary to Ellsworth’s claim, the district court did not tie his past failure to manage his

mental health issues to the length of his sentence. See United States v. Collier, 506 F. App’x 459,

464-65 (6th Cir. 2012). The district court instead based the upward variance on the § 3553(a)

factors discussed above—protecting the public, affording adequate deterrence, and reflecting the

seriousness of the offense. Ellsworth argues in his reply brief that these factors “were already

baked into the Guidelines-range sentence.” (Appellant’s Reply 6). “However, we have rejected

the argument that a sentence is substantively unreasonable because the § 3553(a) factors on which

the district court relied to sentence the defendant outside the advisory Guidelines range were

already reflected in the Guidelines calculation.” United States v. Rossi, 422 F. App’x 425, 436

(6th Cir. 2011) (citing Tristan-Madrigal, 601 F.3d at 636 n.1). After considering the totality of

the circumstances and giving “due deference to the district court’s decision that the § 3553(a)

factors, on a whole, justify the extent of the variance,” we conclude that the district court imposed

a substantively reasonable sentence on Ellsworth. Gall, 552 U.S. at 51.

       For these reasons, we AFFIRM Ellsworth’s sentence.




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