                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 19a0292n.06

                                           No. 18-3922

                             UNITED STATES COURT OF APPEALS                             FILED
                                  FOR THE SIXTH CIRCUIT                           Jun 06, 2019
                                                                              DEBORAH S. HUNT, Clerk
 UNITED STATES OF AMERICA,

                   Plaintiff-Appellee,
 v.                                                   ON APPEAL FROM THE UNITED
                                                      STATES DISTRICT COURT FOR
 MATTHEW KROFFKE,                                     THE NORTHERN DISTRICT OF
                                                      OHIO
                  Defendant-Appellant.



BEFORE:            COLE, Chief Judge; SILER and CLAY, Circuit Judges.

        CLAY, Circuit Judge. Defendant Matthew Kroffke appeals the sentence imposed by the

district court following Kroffke’s pleading guilty to armed bank robbery, in violation of 18 U.S.C.

§ 2113(a) and (d), and brandishing a firearm during a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(A)(ii). We find that the district court’s sentence, which fell at the bottom end of the

guidelines range, was both procedurally and substantively reasonable. Accordingly, we affirm the

district court.

                                         I. BACKGROUND

        On March 28, 2018, the grand jury returned a two-count indictment against Kroffke,

charging him with armed bank robbery and brandishing a weapon during a crime of violence.

Kroffke pleaded guilty to both counts without a plea agreement. In preparation for sentencing,

probation filed a Presentence Investigation Report (“PSI”). The PSI determined that Kroffke’s

Criminal History Category was I. The PSI calculated Kroffke’s total offense level for Count 1 as

19, resulting in a guidelines range of 30 to 37 months of imprisonment, and found that Count 2
Case No. 18-3922, United States v. Kroffke


triggered a statutory mandatory minimum term of 84 months of imprisonment, to run

consecutively to any sentence imposed for Count 1. After combining the 30 to 37 month guideline

range for Count 1 and the 84-month mandatory minimum term for Count 2, Kroffke faced a

guideline prison term of 114 to 121 months.

         Kroffke filed a sentencing memorandum in which he asked the district court to vary

downward from the guidelines range and impose an 84-month sentence. Kroffke argued that

mitigating personal circumstances warranted a downward variance. He stated that he had a long

employment history and had lived a law-abiding life until he began experiencing debilitating hip

pain in June of 2016. The hip pain forced him to take a leave of absence from his employment as

a carpenter, caused him to move back in with his parents to receive proper medical care, and

ultimately necessitated surgery, which confined him to bed for approximately six months.

Kroffke’s injury coincided with his wife’s filing for divorce and leaving him for another man, who

moved into the house Kroffke had shared with his wife and three children. According to Kroffke,

these unfortunate events plunged him into a deep depression, caused him to suffer severe anxiety,

and precipitated his robbing a bank at gunpoint out of desperation. Kroffke additionally argued

that a downward variance was warranted because he continues to experience severe hip pain and

because the government exercised its discretion to charge him with Count 2, which carried an 84-

month mandatory minimum sentence. Kroffke filed eighteen letters in support along with his

sentencing memorandum. The government also filed a sentencing memorandum in which it

requested that the district court impose a sentence within the guidelines range.

        The district court held a sentencing hearing on September 21, 2018. The court stated that,

according to the PSI, Kroffke’s guidelines range was 114 to 121 months. Kroffke and the

government agreed that this was the correct guidelines range. The court then stated that it “read




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Case No. 18-3922, United States v. Kroffke


carefully the defendant’s sentencing memorandum, the government’s sentencing memorandum,

and the victim impact statements that were provided.” (R. 37 at 3:20–23.) Next, the court heard

from Kroffke’s counsel, who reiterated the arguments articulated in Kroffke’s sentencing

memorandum and requested a downward variance and an 84-month sentence. The court then heard

from Kroffke, who apologized to his family, his former wife, and the four women who were in the

bank when he committed the armed robbery, explained that he was “desperate, sick, and not

thinking clearly” on the day of the crime, and asked the court for leniency. (Id. at 11:9–13:3.) The

court next heard from the government, which argued for a guidelines range sentence, emphasizing

the seriousness of the offense, Kroffke’s purported problems with drugs and alcohol abuse, and

the need to protect the public and deter future criminal conduct. The court also heard statements

from two women who were working as tellers at the bank when Kroffke robbed it at gunpoint.

        Next, the court imposed sentence. The court began by stating that it had reviewed the PSI,

the sentencing memoranda, the letters Kroffke had provided in support of his request for a

variance, and the victim impact statements, and had considered all of the testimony provided in

court. The court then stated that the “touchstone of sentencing is 18 U.S.C. § 3553(a).” (Id. at

22:7.) The court explained that, when sentencing Kroffke, it must “consider everything [it] can

learn” about him and his crimes, compute and consider the guidelines range, and ultimately impose

“a sentence that is sufficient but not longer than necessary to accomplish the four statutory

purposes of sentencing: [p]unishment, deterrence, protecting the community, and rehabilitation.”

(Id. at 22:11–14.) The district court then found that “a sentence within the advisory range is

sufficient but not greater than necessary” to accomplish these goals, and sentenced Kroffke to 114

months, the lowest end of the guideline range. (Id. at 22:16–19.)




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        The district court explained that it had “considered carefully” Kroffke’s argument for a

downward variance, but had concluded that “if I went to 84 months,” as Kroffke had requested, “I

would be giving no credit or punishment or deterrence for not just a robbery and not just an armed

robbery, but a very vicious and terrifying one . . . .” (Id. at 22:20–25.) The district court stated that

Kroffke had “sadly changed the lives of all those women, and not for the better,” and explained

that while it recognized “the physical pain and the anguish [Kroffke was] suffering for over two

years” when he committed the crime, the court nonetheless could not understand why Kroffke

would think that “terroriz[ing] and traumatiz[ing] four people and put[ing] them in fear of their

lives” was a “good solution.” (Id. at 23:1–8.) After providing this explanation, the court found that

its chosen sentence of 114 months of imprisonment was “sufficient but not longer than necessary.”

(Id. at 23:8–9.)

        After the court imposed sentence, Kroffke objected to the court’s declining to grant him a

downward variance. This appeal followed.

                                             II. DISCUSSION

        A. Introduction

        We review a defendant’s sentence for reasonableness under an abuse-of-discretion

standard. United States v. Donadeo, 910 F.3d 886, 893 (6th Cir. 2018) (citing United States v.

Jeross, 521 F.3d 562, 569 (6th Cir. 2008)). Reasonableness has two components: procedural and

substantive. Id. (citing United States v. Keller, 498 F.3d 316, 322 (6th Cir. 2007)).

        Kroffke contends that his sentence violates both procedural and substantive

reasonableness. Kroffke argues that his sentence is procedurally unreasonable because the district

court failed to adequately explain its reasons for denying Kroffke’s request for a downward

variance and for ultimately imposing a sentence of 114 months of imprisonment. Kroffke also




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Case No. 18-3922, United States v. Kroffke


asserts that his sentence is substantively unreasonable because the district court failed to

sufficiently consider the § 3553(a) factors.

        B. The District Court Did Not Abuse Its Discretion By Imposing a Procedurally
           Unreasonable Sentence

                 1. Relevant Legal Principles

        A sentence satisfies procedural reasonableness if the district court:

        (1) properly calculated the applicable advisory Guidelines range; (2) considered the
        other [18 U.S.C.] § 3553(a) factors as well as the parties’ arguments for a sentence
        outside the Guidelines range; and (3) adequately articulated its reasoning for
        imposing the particular sentence chosen, including any rejection of the parties’
        arguments for an outside-Guidelines sentence and any decision to deviate from the
        advisory Guidelines range.

United States v. Adams, 873 F.3d 512, 517 (6th Cir. 2017) (quoting United States v. Bolds, 511

F.3d 568, 581 (6th Cir. 2007)).

        “For a sentence to be procedurally reasonable, ‘a district court must explain its reasoning

to a sufficient degree to allow for meaningful appellate review.’” United States v. Zobel, 696 F.3d

558, 566 (6th Cir. 2012) (quoting United States v. Brogdon, 503 F.3d 555, 559 (6th Cir. 2007)).

Accordingly, “‘the record must contain the district court’s rationale for concluding that the

sentence imposed is sufficient but not greater than necessary, to comply with the purposes of

sentencing set forth in 18 U.S.C. § 3553(a).’” United States v. Cochrane, 702 F.3d 334, 344 (6th

Cir. 2012) (quoting Bolds, 511 F.3d at 580). “An explanation is typically adequate if it addresses

the factors from 18 U.S.C. § 3553(a) that are relevant to the district court’s sentencing decision.”

U.S. v. Solano-Rosales, 781 F.3d 345, 351 (6th Cir. 2015) (citing United States v. Trejo-Martinez,

481 F.3d 409, 413 (6th Cir. 2007)). “[P]rocedural reasonableness does not require that a district

court provide a rote listing or some other ritualistic incantation of the relevant § 3553(a) factors.”

Trejo-Martinez, 481 F.3d at 413 (citing United States v. Collington, 461 F.3d 805, 809 (6th Cir.




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Case No. 18-3922, United States v. Kroffke


2006)). However, “[s]imply ‘list[ing] the § 3553(a) factors and various characteristics of the

defendant’ without ‘refer[ing] to the applicable Guidelines range’ or ‘explaining [the] decision to

[stay within or] deviate from that range’ is insufficient.” Bolds, 511 F.3d 568, 580 (6th Cir. 2007)

(quoting United States v. Cousins, 469 F.3d 572, 577 (6th Cir. 2006) (alteration in original)). While

a district court must adequately explain its chosen sentence, “‘[a] lengthy explanation may be

particularly unnecessary where a defendant’s arguments are straightforward [and] conceptually

simple and where a sentencing court imposes a within-Guidelines sentence.’” Cochrane, 702 F.3d

at 344 (quoting United States v. Duane, 533 F.3d 441, 451 (6th Cir. 2008) (internal quotation

marks omitted)).

        “[W]hen a defendant raises a particular argument in seeking a lower 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.” Bolds, 511 F.3d at 580 (quoting United States v. Jones, 489

F.3d 243, 251 (6th Cir. 2007) (internal quotation marks omitted)). “Reversible procedural error

occurs if the sentencing judge fails to ‘set forth enough [of a statement of reasons] to satisfy the

appellate court that he has considered the parties’ arguments and has a reasoned basis for

exercising his own legal decision making authority.’” Bolds, 511 F.3d at 580 (quoting Rita v.

United States, 551 U.S. 338, 356 (2007)).

                 2. Application to the Matter at Hand

         The district court did not impose a procedurally unreasonable sentence. The district court

calculated the correct guidelines range. The court stated that “the touchstone of sentencing is 18

U.S.C. § 3553(a)” and explicitly referenced several of § 3553(a)’s enumerated factors; it stated

that it would “consider everything [it] can learn” about Kroffke and his crimes and would impose

“a sentence that is sufficient but not longer than necessary to accomplish the four statutory




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Case No. 18-3922, United States v. Kroffke


purposes of sentencing: [p]unishment, deterrence, protecting the community, and rehabilitation.”

(R. 37 at 22:11–14.) The district court next considered Kroffke’s arguments for a downward

variance; it stated that it had reviewed Kroffke’s sentencing memorandum and read his letters in

support, and it heard from Kroffke and his attorney at the sentencing hearing. After considering

Kroffke’s argument for an 84-month sentence, the government’s argument in opposition, and the

statements from two of the victims, the court explained that it would not grant a downward

variance. The court stated that while it appreciated that Kroffke had been suffering from physical

and psychological pain for two years when he committed the armed robbery, a below-guidelines

sentence would not provide sufficient “credit or punishment or deterrence” for the “very vicious

and terrifying” armed robbery that “changed the lives of all those women” by “put[ting] them in

fear of their lives.” (Id. at 22:20–23:7.) While the court did not explicitly cite § 3553(a) again when

it imposed sentence, it justified its sentence by referencing several of the § 3553(a) factors, such

as Kroffke’s personal characteristics and the nature of his offense, and the need for punishment

and deterrence. See § 3553(a)(1), (2)(A)–(C). The district court ultimately sentenced Kroffke to

the lowest end of the guidelines range. While the district court’s explanation for its sentence was

“admittedly brief,” we believe that “a fuller explanation was not warranted under the

circumstances.” Cochrane, 702 F.3d at 344. The district did not abuse its discretion by imposing

a procedurally unreasonable sentence.

        Kroffke relies on four cases to argue that the district court violated procedural

reasonableness. But none of the cases he cites apply to the instant case. In United States v. Thomas,

498 F.3d 336 (6th Cir. 2007), we held that the district court’s sentence was procedurally

unreasonable when the district court “never mentioned anything resembling the § 3553(a) factors,”

except for a generalized statement that it had considered them, and when the district court failed




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to acknowledge any of the defendant’s arguments for a lower sentence, “leav[ing] us unsure” about

whether the court considered the defendant’s arguments and about how the district court arrived

at the sentence it imposed. Id. at 341. In the instant case, the district court considered Kroffke’s

arguments for a downward variance, explained why it declined to impose Kroffke’s requested 84-

month sentence, and justified its decision by discussing several of the § 3553(a) factors. Thus,

Thomas is inapposite.

        The second case that Kroffke relies on is similarly unpersuasive. In United States v.

Penson, 526 F.3d 331 (6th Cir. 2008), we held that the district court’s sentence was procedurally

unreasonable when the district court failed to explain its sentencing decision in light of the

§ 3553(a) factors and allowed the government, but not defense counsel, to argue for a particular

sentence. Id. at 338. In the instant case, the district court considered several of the § 3553(a) factors

and heard from both Kroffke and his attorney at the sentencing hearing. Accordingly, Penson does

not apply.

        In United States v. Ferguson, 518 F. App’x 458 (6th Cir. 2013), we held that the

defendant’s sentence was procedurally unreasonable because the district court failed to adequately

consider the defendant’s history and characteristics and never mentioned the seriousness of the

crime or the need for punishment or deterrence. Id. at 467–68. In the instant case, the district court

considered Kroffke’s history and characteristics—it referenced the physical pain and

psychological anguish he had experienced for two years when he committed the armed robbery.

The district court discussed the severity of Kroffke’s offense, describing it as a “vicious and

terrifying” armed robbery. (R. 37 at 22:23–24.) And it explicitly mentioned the need for

“punishment or deterrence” when explaining its sentence. (Id. at 22:20–25.) Therefore, Ferguson

does not support Kroffke’s argument.




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Case No. 18-3922, United States v. Kroffke


        Finally, in United States v. Jackson, 408 F.3d 301 (6th Cir. 2005), we held that the district

court violated procedural reasonableness when it granted an eight-level downward departure

without providing adequate explanation for its decision. In that case, the district court listed the

characteristics of the defendant, but failed to discuss any of the other § 3553(a) factors and never

provided any analysis for its sentence. Id. at 304–05. Jackson does not apply to the instant case.

When sentencing Kroffke, the district court mentioned several of the § 3553(a) factors, explained

why it declined to grant Kroffke’s request for a downward variance, and sufficiently explained the

sentence it ultimately imposed.

        C. The District Court Did Not Abuse Its Discretion By Imposing a Substantively
           Unreasonable Sentence

                 1. Relevant Legal Principles

        “To be substantively reasonable, the sentence ‘must be proportionate to the seriousness of

the circumstances of the offense and offender, and sufficient but not greater than necessary, to

comply with the purposes of § 3553(a).’” United States v. Sexton, 894 F.3d 787, 797 (6th Cir.

2018) (quoting United States v. Vowell, 516 F.3d 503, 512 (6th Cir. 2008)). “[A] sentence is

‘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. Williams, 762 F. App’x 278, 283 (6th

Cir. 2019) (quoting United States v. Sexton, 889 F.3d 262, 265 (6th Cir. 2018)). “In this circuit,

within-Guidelines sentences are afforded a ‘presumption of reasonableness.’” United States v.

Young, No. 18-3029, 2019 WL 1502307, at *1 (6th Cir. Apr. 3, 2019) (quoting United States v.

Vonner, 516 F.3d 382, 389–90 (6th Cir. 2008) (en banc)). A defendant seeking to rebut this

presumption of reasonableness “bears no small burden.” Id. (quoting United States v. Massey, 663

F.3d 852, 860 (6th Cir. 2011)).



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Case No. 18-3922, United States v. Kroffke


                 2. Application to the Matter at Hand

        Kroffke asserts that his sentence is substantively unreasonable “[f]or the same reasons that

[his] sentence is procedurally unreasonable,” namely that the district court failed to adequately

explain its sentence in terms of the § 3553(a) factors. (Appellant Br. at 21.) He also argues that

because the district court failed to adequately address the § 3553(a) factors, his guidelines-range

sentence is not entitled to the presumption of reasonableness. However, we have already found

that the district court sufficiently considered the § 3553(a) factors and that its sentence satisfied

procedural reasonableness.

        Kroffke has failed to sustain his substantial burden of proving that his guidelines-range

sentence was unreasonable. As explained above, the district court adequately considered Kroffke’s

personal history and characteristics, mentioned several of the § 3553(a) factors, and explained why

it declined to grant Kroffke’s request for a downward variance. Further, the district court found

that the 114-month sentence it imposed was “sufficient but not longer than necessary” to

accomplish the purposes of § 3553(a). The district court could have certainly provided a more

extensive explanation for its sentence. However, under these circumstances, the district court did

not abuse its discretion by imposing a substantively unreasonable sentence.

                                             III. CONCLUSION

        For the reasons explained above, we affirm Kroffke’s sentence.




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