               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 15a0803n.06

                                          No. 15-5290
                                                                                      FILED
                          UNITED STATES COURT OF APPEALS                        Dec 10, 2015
                               FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                        ON APPEAL FROM THE
                                                          UNITED STATES DISTRICT
v.                                                        COURT FOR THE WESTERN
                                                          DISTRICT OF TENNESSEE
TERRANCE BROWN,

            Defendant-Appellant.
____________________________________/

BEFORE: COLE, Chief Judge; SUTTON, Circuit Judge; BELL, District Judge.*

       BELL, District Judge. Terrance Brown challenges the substantive reasonableness of his

96-month sentence for statutory rape, 18 U.S.C. § 2243(a). After considering the Sentencing

Guidelines and the relevant factors under 18 U.S.C. § 3553, the district court issued a sentence

18 months higher than the top of the Guidelines range. We affirm.

                                                I.

       When he was 18 years old, Brown was caught having sex with a 13-year old girl at the

Naval Support Activity base in Millington, Tennessee. His victim was a child with “significant

learning and intellectual disabilities,” “low communication and socialization skills,” a verbal IQ

of 68, and a non-verbal IQ of 65. (Sentencing Hr’g Tr. 6, R. 58.) After his arrest, Brown gave a

written statement to the Naval Criminal Investigative Service describing his conduct in graphic

detail. (Presentence Report 4, R. 13.) Brown asserted that he had sex with the victim on four
*
The Honorable Robert Holmes Bell, United States District Judge for the Western District of
Michigan, sitting by designation.
15-5290. United States v. Bell

occasions over the course of two weeks. During each of the first three incidents, he was aware

that he was causing her significant physical pain. He had to push “hard” to get inside her. (Id.)

She bled. She “ma[de] noise like it was hurting her.” (Id.) Nevertheless, he “pushed on

[through].” (Id.) Immediately after the first and third incidents, Brown observed that the victim

was in so much pain that she “had [problems] walking normal.” (Id.) But he approached her

again within a few days. He stopped during the fourth incident, when a naval chief saw him in

the act.

           At sentencing, the district court calculated a Guidelines range of 63 to 78 months based

on a total offense level of 26 and a criminal history category of I. The base offense level for

statutory rape is 18. Brown received a four-level enhancement under U.S.S.G. § 2A3.2(b)(2) for

misrepresenting his identity because he told the victim that he was 15 years old. He received a

two-level enhancement under U.S.S.G. § 3A1.1(b)(1) because he knew or should have known

that the victim was “vulnerable” due to her cognitive impairments. Brown also received a five-

level enhancement for a “pattern of activity involving prohibited sexual conduct” because he

raped the victim on at least two occasions. U.S.S.G. § 4B1.5(b). The court decreased his offense

level by three points because Brown accepted responsibility for the offense and assisted

authorities in the prosecution of his conduct, U.S.S.G. §§ 3E1.1(a), 3E1.1(b).

           After calculating the Guidelines range, the district court considered the sentencing factors

in 18 U.S.C. § 3553. As to the nature and circumstances of the offense, the court found that

Brown had repeatedly and brutally raped a 13-year old child with intellectual disabilities who

was so “significantly compromised” that she had “grave difficulty” answering questions posed to

her. (Sentencing Hr’g Tr. 125, R. 58.) The court also found that Brown was “significantly devoid
                                                    2
15-5290. United States v. Bell

of any remorse” or appreciation of the consequences of his actions, as evidenced by the detailed

depiction of his conduct in his statement to the investigators and his repeated abuse of the victim

despite his awareness of her pain. (Id. at 124-25.) Although Brown apologized for his actions at

the sentencing hearing, the court did not believe that his apology was genuine.

        The court also considered Brown’s age, mental health, and behavioral history; the

potential benefits of incarceration; the need to promote respect for the law; and the need to

protect the public. The court then examined whether the Guidelines took into account the

circumstances of the offense:

        The guidelines take into account some of the things I’ve been talking about. They
        recognize the age of the minor, at least as the minor’s under 16 years. They don’t
        recognize that the minor’s 13 years old. They don’t recognize – well, let me tell
        you again what they do recognize.

        They recognize that there’s undue influence on the minor because of the minor’s
        vulnerability, and the minor was a vulnerable victim. . . . They recognize full
        acceptance of responsibility, and they recognize that the defendant engaged in the
        prohibited sexual conduct with the minor on at least two separate occasions.

        What the guidelines don’t capture here from my perspective is, first, the actual
        age of this 13-year old. They also don’t capture the brutality of these rapes, and
        they don’t capture the number of rapes. In other words, there’s a significant
        enhancement, five-level enhancement, for the two separate occasions. That is
        under 4B1.5(b)(1). We’re really talking about four occasions and the fact that the
        defendant stopped when he was discovered which is extremely troubling to me.
        We have four instances of rape here, and that’s why it seems to me that the
        guidelines are too low. They don’t capture a great deal of what needs to be
        captured here. . . .

        I’m not really persuaded that the guidelines capture the total picture here, the
        brutality of it, the number of incidents, his response to the incidents, you know,
        inflicting pain and coming back to do it again and again without any apparent
        conscience, and then the fact that we have a 13-year old vulnerable child. I keep
        coming back to that, but to me that’s the core of the case.

(Id. at 140, 145.)
                                                3
15-5290. United States v. Bell


        The court concluded:

        This is a unique case. It’s hard to apply the guidelines in a unique case. I think an
        above-guideline sentence, a variance upward is necessary here to reflect the
        seriousness of the offense, to promote respect for the law, to provide for just
        punishment, and to deter others . . .

(Id. at 148.)

                                                 II.

        We review sentences for reasonableness under an abuse-of-discretion standard. Gall v.

United States, 552 U.S. 38, 51 (2007). Generally, criminal sentences are reviewed for both

substantive and procedural reasonableness. Id. Brown challenges only the substantive

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

“A sentence is substantively unreasonable if the district court selects the sentence arbitrarily,

bases the sentence on impermissible factors, fails to consider pertinent § 3553(a) factors or gives

an unreasonable amount of weight to any pertinent factor.” Id. at 633 (quoting United States v.

Walls, 546 F.3d 728, 736 (6th Cir. 2008)).

        In conducting our review, we must “take into account the totality of the circumstances,

including the extent of any variance from the Guidelines range.” Gall, 552 U.S. at 51. Because

“[d]istrict courts have an institutional advantage over appellate courts in making” sentencing

determinations, Koon v. United States, 518 U.S. 81, 98 (1996), the fact that we “might

reasonably have concluded that a different sentence was appropriate is insufficient to justify



                                                 4
15-5290. United States v. Bell

reversal of the district court.” Gall, 552 U.S. at 51. We “must give due deference to the district

court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id.

        A. History of the Guidelines

        Brown’s principal objection is that the district court’s reasons for the variance are not

supported by the history of the Guidelines. For instance, Brown argues that the Guidelines

necessarily take into account the seriousness of his conduct because the offense level for

statutory rape has evolved over time to be “more retributive.” (Appellant Br. 14.) However, a

sentencing court must generally use the version of the Guidelines in effect at the time of

sentencing as the “initial benchmark,” and then determine whether a departure or variance is

appropriate based on the particular facts of a case. Peugh v. United States, 133 S. Ct. 2072, 2080-

81 (2013). That is what the district court did here. It was not required to consider the history of

the Guidelines, or to draw conclusions about their adequacy based on a comparison between

prior versions and the current one.

        Moreover, Brown’s argument is at odds with commentary to the current guideline for

statutory rape, which acknowledges that “[t]here may be cases in which the offense level

determined under this guideline substantially understates the seriousness of the offense.”

U.S.S.G. § 2A3.2 cmt. 6. In other words, even accepting Brown’s argument that the base offense

level for statutory rape has increased over time and is, thus, more retributive, the commentary

continues to recognize that the guideline may not account for the seriousness of a particular

offense, as in Brown’s case. Thus, his reliance on the history of the Guidelines is unavailing.




                                                  5
15-5290. United States v. Bell

        B. Victim’s Age

        Brown also objects to the district court’s statement that the Guidelines do not adequately

capture the victim’s age. “A district court may base its variance on factors included in the

Guidelines, but it may not erroneously proclaim that the factors it cites are not included in the

Guidelines calculation.” United States v. Smith, 585 F. App’x 889, 892 (6th Cir. 2014) (citing

United States v. Aleo, 681 F.3d 290, 300 (6th Cir. 2012)).

        In Aleo, the district court concluded that the Guidelines “could not possibly have

envisioned a crime as horrendous” as the defendant’s, and then issued a sentence two and one-

half times greater than the top of the Guidelines range based on facts that were already included

in the Guidelines calculation. 681 F.3d at 300. This Court found that such reasoning was not

sufficiently compelling to support the variance. Id. at 301.

        Aleo is distinguishable. The base offense level for Brown’s offense applies where the

victim is between the ages of 12 and 15 years old. U.S.S.G. § 2A3.2. The district court expressly

acknowledged that the Guidelines account for the victim’s age, insofar as it is less than 16 years

old. However, the court also recognized that the “actual age” of the victim in this case was not

“captur[ed]” by the Guidelines. (Sentencing Hr’g Tr. 140, R. 58.) Unlike Aleo, then, the district

court did not make the mistake of assuming that the victim’s age was not part of the Guidelines

calculation; rather, it implicitly recognized that the Guidelines account for a range of ages, but do

not make distinctions within that range, even though a younger victim generally makes for a

more serious offense. This sort of analysis, which focuses on the “particular facts of a case,” is

permitted. See Peugh, 133 S. Ct. at 2080. Although the victim’s age might not have been a

particularly compelling basis for an upward variance when considered on its own, the district
                                                 6
15-5290. United States v. Bell

court did not abuse its discretion when considering it as one of several factors which, “on a

whole,” justify the variance. See Gall, 552 U.S. at 51.

        Brown cites a comment in the Guidelines stating that “[i]t is assumed that at least a four-

year age difference exists between the minor and the defendant, as specified in 18 U.S.C.

§ 2243(a)[.]” U.S.S.G. § 2A3.2 cmt. (background). This comment merely reiterates one of the

requirements for statutory rape under 18 U.S.C. § 2243(a). There is no indication that the district

court assumed that an age difference of less than four years could be subject to the guideline.

Thus, Brown’s objection is without merit.

        C. Pattern of Conduct

        Brown makes a similar objection to the district court’s assessment that the Guidelines do

not adequately account for his pattern of conduct. The enhancement in U.S.S.G. § 4B1.5(b)

applies to a pattern involving “at least two separate occasions” of prohibited sexual conduct with

a minor, U.S.S.G. § 4B1.5 cmt. 4(B)(i) (emphasis added); thus, Brown claims that the

enhancement already accounts for the pattern of four incidents in his case. According to the

district court, however, “[t]here are some patterns that are more significant than others. Yes,

[Brown] got the increase because there’s a pattern which is two, . . . [but] [w]e’ve doubled that in

terms of the number of events here. . . . At some point the pattern becomes more serious, and the

guidelines don’t capture it.” (Sentencing Hr’g Tr. 142, R. 58.) On this point, the court noted that

it was influenced, in part, by the “brutality” of Brown’s pattern of conduct. (Id.)

        Again, this is not a case where the district court wrongly assumed that specific conduct

was not covered by the enhancement. Cf. United States v. Melchor, 515 F. App’x 444, 449 (6th

Cir. 2013) (vacating a sentence above the Guidelines range because the district court erroneously
                                                  7
15-5290. United States v. Bell

believed that a fourth instance of sexual abuse or exploitation of a minor was not covered by the

“pattern of activity” enhancement in U.S.S.G. § 2G2.2(b)(5)). Rather, the court concluded that

the enhancement did not adequately account for the seriousness of Brown’s particular pattern of

conduct, which involved four incidents of “inflicting pain and coming back to do it again and

again without any apparent conscience.” (Sentencing Hr’g Tr. 145, R. 58.) Because a pattern of

sexual abuse can be established without the number and frequency of the incidents in Brown’s

case, and without the repeated infliction of physical pain, the district court’s conclusion was a

reasonable one.

        Brown notes that the enhancement in § 4B1.5(b) has been amended over time to make it

more punitive. The prior version required multiple victims, whereas the current version applies

when the defendant has engaged in “at least two separate occasions” of prohibited conduct with a

minor, even if those separate occasions are with the same victim. See United States v. Brattain,

539 F.3d 445, 448 (6th Cir. 2008) (explaining the amendment). Brown claims that the district

court essentially rejected the enhancement based on “a policy disagreement on whether the

[g]uideline is punitive enough.” (Appellant Br. 19.) Brown compares this case to United States v.

Bistline, 665 F.3d 758 (6th Cir. 2012), in which the district court declined to apply a sentencing

guideline because it had been amended by Congress and the court was concerned that the

guideline was influenced by political considerations. Id. at 761. This Court noted that when “a

district court chooses to disagree with a guideline, we will ‘scrutinize closely’ its reasons for

doing so.” Id. (quoting United States v. Herrera–Zuniga, 571 F.3d 568, 585 (6th Cir. 2009)).

        Bistline does not apply. The district court did not reject or disagree with the enhancement

in U.S.S.G. § 4B1.5(b), on policy grounds or otherwise. Instead, the court applied the
                                                 8
15-5290. United States v. Bell

enhancement but reasonably concluded that it did not adequately capture the specific facts of

Brown’s case.

        D. Sentencing Disparities

        Finally, Brown contends that his sentence would not avoid unwarranted sentencing

disparities because other defendants have received lower sentences in other cases for more

egregious conduct. Brown cites several cases from around the country, but none of the cited

cases involved facts comparable to this one, i.e., four traumatic and painful rapes of a 13-year old

child within a short span of time. The goal of 18 U.S.C. § 3553(a)(6) is to eliminate “disparities

among defendants with similar records who have been found guilty of similar conduct”; “[i]t is

not concerned with disparities between one individual’s sentence and another individual’s

sentence[.]” United States v. Simmons, 501 F.3d 620, 623 (6th Cir. 2007). Moreover, the district

court necessarily gave weight to the need for avoiding sentencing disparities when using the

Guidelines range as a starting point for its analysis, see Gall, 552 U.S. at 54. It then concluded

that all of the relevant circumstances made Brown’s case deserving of an above-Guidelines

sentence. We discern no abuse of discretion in that decision.

                                                III.

        In summary, the record establishes that the district court carefully considered the

Guidelines range, weighed the pertinent factors in § 3553(a), and determined that an upward

variance of 18 months was warranted based on “an individualized assessment . . . of the facts

presented.” Gall, 552 U.S. at 50. We cannot say that this determination was arbitrary or

unreasonable. Even if the Sentencing Guidelines adequately consider the victim’s age and the

defendant’s pattern of conduct, the district court sufficiently based Brown’s upward variance on
                                                 9
15-5290. United States v. Bell

factors that the Guidelines do not take into account—the brutality of the rapes, the pain the

victim endured, the degradation of the victim, and the fact that the rapes stopped only because

Brown was caught in the act. The judgment of the district court is therefore AFFIRMED.




                                              10
