                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 16a0010n.06

                                          No. 14-6334                                  FILED
                                                                                    Jan 07, 2016
                                                                                DEBORAH S. HUNT, Clerk
                         UNITED STATES COURTS OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA                                )
                                                        )
       Plaintiff-Appellee,                              )
                                                        )      ON APPEAL FROM THE
v.                                                      )      UNITED STATES DISTRICT
                                                        )      COURT FOR THE WESTERN
MATTHEW HORTON                                          )      DISTRICT OF TENNESSEE
                                                        )
       Defendant-Appellant.                             )                  OPINION
                                                        )
                                                        )



BEFORE:       BATCHELDER and STRANCH, Circuit Judges; HOOD, District Judge.*

       STRANCH, Circuit Judge. Matthew Horton argues that his 50-month sentence for

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), is substantively

unreasonable. The district court imposed an upward variance of 13 months above the applicable

advisory guideline range, citing Horton’s extensive history of similar offenses, including some

committed while a juvenile, as well as the need to deter such conduct in the future. Finding that

the district court did not abuse its discretion, we AFFIRM Horton’s sentence.

                                        I.      FACTS

       On August 29, 2013, the Memphis Police Department received a complaint that two

individuals were following a man and appeared to intend to hurt him. When officers arrived at



       *
        The Honorable Denise Page Hood, United States District Judge for the Eastern District
of Michigan, sitting by designation.
No. 14-6334
United States of America v. Matthew Horton

the scene, the complainant identified Horton and a companion as the men who had been trailing

him. When the officers attempted to detain them, Horton fled, but after a short pursuit the

officers were able to detain him. As they arrested him, the officers discovered a loaded Jimenez

Arms, Model JA-9, 9 mm pistol in his waistband. The other individual was released.

       Horton was indicted by a federal grand jury and charged with being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g). He eventually pled guilty without a plea

agreement. The Presentence Investigation Report (PSR) prepared for Horton determined that his

Base Offense Level was 20, pursuant to USSG §2K2.1(a)(4)(A), because he had committed the

offense after sustaining a felony conviction for a crime of violence. Horton’s Total Offense

Level then was adjusted downward to 17, as he had accepted responsibility for his actions. The

PSR determined that Horton’s criminal history category was III, and therefore calculated his

advisory guidelines imprisonment range to be 30 to 37 months. The PSR also noted that this

offense was the seventh occasion on which Horton had been in possession of a firearm, citing

three instances of possessing a weapon when he was a juvenile (14,1 15 and 17); one adult

conviction for unlawful possession of a weapon; and three charges for aggravated burglary and

robbery as well as aggravated assault, incidents which also allegedly involved the use of a

handgun but for which Horton had not been prosecuted.

       During the sentencing hearing, the court noted Horton’s offense level and criminal

history as well as the advisory guidelines range of 30 to 37 months imprisonment, but put Horton

on notice that it was considering an upward variance. The government submitted the issue of


       1
        The PSR erroneously characterized Horton as having two juvenile convictions for
possession of a weapon at age 15. In fact, Horton was found with a knife in his pocket when he
was 14, which had not been brandished during a prior argument with a fellow student. When he
was 15, however, Horton was found to be in unlawful possession of a loaded .380 caliber
handgun.
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United States of America v. Matthew Horton

sentencing to the court, while Horton’s counsel argued for a downward variance to time served,

citing Horton’s low criminal history score and a leg injury he had received during the course of

his arrest. Horton also testified, denying any plans to commit a crime but admitting that he ran

from police because he knew that he should not have a weapon.

       The court then considered the 18 U.S.C. § 3553(a) factors, including: Horton’s criminal

history dating from a young age, which often involved firearms; his personal history, including

employment and education; the need to promote respect for the law; and the need to deter such

conduct in the future. The court denied Horton’s request for a downward variance and imposed

a 50-month sentence. Horton’s counsel objected to the sentence, arguing that the court’s reliance

on three juvenile convictions to justify the upward variance was unreasonable. Horton timely

appealed the issue to this court.

                                II.   STANDARD OF REVIEW

       We review criminal sentences for procedural and substantive reasonableness using a

deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 46, 51 (2007);

United States v. Robinson, 778 F.3d 515, 518 (6th Cir. 2015). A district court should begin

sentencing proceedings with a correct calculation of the applicable Guidelines range, then

consider all of the § 3553(a) factors. Gall, 552 U.S. at 49–50. In doing so, the court “may not

presume that the Guidelines range is reasonable,” but instead must make an “individualized

assessment based on the facts presented.” Id. at 50; Robinson, 778 F.3d at 519. The court

should “impose a sentence sufficient, but not greater than necessary, to comply with” the

purposes of § 3553(a). United States v. Rita, 551 U.S. 338, 348 (2007) (quoting 18 U.S.C.

§ 3553(a)).




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United States of America v. Matthew Horton

        Reviewing for procedural unreasonableness involves determining if a court has “fail[ed]

to calculate (or improperly calculate[ed]) the Guidelines range, treat[ed] the Guidelines as

mandatory, fail[ed] to consider the § 3553(a) factors, select[ed] a sentence based on clearly

erroneous facts, or fail[ed] to adequately explain the chosen sentence—including an explanation

for any deviation from the Guidelines range.” Gall, 552 U.S. at 51. In order for a sentence to be

substantively reasonable, it 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).” Robinson, 778 F.3d at 519 (quoting United States v. Vowell, 516 F.3d 503, 512

(6th Cir. 2008)). “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).

        If the sentence imposed is outside of the Guidelines range, we may not presume it to be

unreasonable; rather, we “may consider the extent of the deviation, but must give due deference

to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the

variance.” Gall, 552 U.S. at 51. “‘[E]xtraordinary’ circumstances” are not necessary to justify a

sentence beyond the Guidelines range, nor is proportional review appropriate. Id. at 47. Our

reasonable determination that a different sentence is appropriate is insufficient grounds upon

which to justify reversing the district court. Id. at 51.


                                         III.    ANALYSIS

        The essence of Horton’s argument is that his sentence is unreasonable because the district

court should not, as a matter of policy, have used his juvenile convictions in order to justify an

upward variance of 13 months. Horton cites no case law to support the claim that the use of

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United States of America v. Matthew Horton

juvenile adjudications is improper in calculating upward variances—rather, he concedes that this

court has found that juvenile adjudications can be used to justify an upward departure pursuant to

USSG §4A1.3 (“Departures Based on Inadequacy of Criminal History Category”). United States

v. Barber, 200 F.3d 908, 912–13 (6th Cir. 2000). Instead, Horton argues that recent Supreme

Court cases such as Roper v. Simmons, 543 U.S. 551 (2005), Graham v. Florida, 560 U.S. 48

(2010), and Miller v. Alabama, 132 S. Ct. 2455 (2012), collectively suggest that juvenile

offenders have distinct characteristics, including immaturity and malleability, that not only

should preclude them from punishment equivalent to that meted out to adults, but also should

undermine assumptions about recidivism based on juvenile offenses.

       Although these arguments are certainly compelling, they do not alter the fact that our

precedent permits juvenile offenses to be considered in sentencing, whether in the context of an

upward departure or, analogously, an upward variance. See Barber, 200 F.3d at 912–13. Indeed,

the 50-month sentence here is the same result that would have been reached had the court

determined that Horton was eligible for a criminal history category of V rather than III, pursuant

to USSG §4A1.3—an upward departure like that permitted in Barber. Id.; see United States

Sentencing Commission, Guidelines Manual, Sentencing Table (2013).

       Moreover, the district court’s analysis otherwise comports with our standards for

procedural and substantive reasonableness.      The court adopted the findings of the PSR,

acknowledged the advisory Guidelines range, and then considered the pertinent § 3553(a)

factors, first hearing argument from both parties and then explaining its reasons for the upward

variance. The court specifically referenced Horton’s juvenile record in combination with his

adult record, noting with concern that Horton “has a criminal history that dates back to just a

very young age, and much of it involves firearms and violence.” (R. 34, Sentencing Tr., Page ID


                                                5
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United States of America v. Matthew Horton

64.) The court then listed three juvenile and one adult charge that involved a weapon, as well as

two other juvenile charges. The court then described Horton’s other criminal conduct, which

included charges for “assault, theft of property, aggravated burglary, aggravated robbery,

aggravated assault, domestic assault resulting in bodily harm,” as well as the current offense.

(Id. at 65.) During its deliberations, the court emphasized the risk of recidivism and lack of

respect for the law, informing Horton that it appeared “we are not getting your attention. You

haven’t understood that you can’t possess a firearm. It’s just that simple. And you’ve had at

least three or four prior convictions for possession of a firearm.” (Id. at 67.) The court denied

the request for a downward variance and applied an upward variance, citing “the need to promote

respect for the law, Mr. Horton’s history and characteristics and the likelihood that he will re-

offend in the future.” (Id. at 68.) In light of these facts and given the deference we must pay to

the district court’s consideration of the § 3553(a) factors, we cannot find that the court abused its

discretion in imposing an upward variance of 13 months.

                                     IV.     CONCLUSION

       For the foregoing reasons, Horton’s sentence is AFFIRMED.




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