                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0773n.06

                                            No. 09-5014                                     FILED
                                                                                        Dec 17, 2010
                             UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT


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




BEFORE:        MOORE, SUTTON, and McKEAGUE, Circuit Judges.

       McKeague, Circuit Judge. After pleading guilty to being a felon in possession of a firearm,

Odell Williams was sentenced to a term of imprisonment at the lowest end of the Sentencing

Guidelines range. Williams appeals the sentence and argues that it is greater than necessary because

the district court placed too much weight on his criminal history and did properly not account for his

mitigating family circumstances. Because Williams has failed to rebut the presumption of

reasonableness that applies to sentences that are within the Guidelines range, we affirm.

                                        I. BACKGROUND

       Williams was stopped by a police officer for driving with expired license plates. Upon

approaching the vehicle, police officers observed Williams place an open bottle of beer on the floor.

Williams then fled from the officers. During their pursuit, officers observed Williams drop a loaded

semi-automatic pistol. The officers apprehended and arrested Williams. A federal grand jury
No. 09-5014
USA v. Odell Williams

returned a one-count indictment against Williams, charging him for being a felon in possession of

a firearm, in violation of 18 U.S.C. § 922(g). Williams pleaded guilty and the district court ordered

the U.S. Probation Office to prepare a presentence investigation report (PSR).

       The PSR showed that Williams has a long criminal record and numerous contacts with the

judicial system. In 1989, Williams was convicted of two charges of unlawful possession of

marijuana and cocaine with intent to distribute. In 1991, Williams was convicted of three charges

of aggravated robbery, all of which involved a firearm. And in 1997, Williams was convicted of a

charge of criminal attempt of unlawful possession of crack cocaine with an intent to distribute. In

addition to these adult felony convictions, the PSR showed that Williams had juvenile convictions

for attempted robbery with a deadly weapon, as well as assault and battery. Furthermore, Williams

had an additional 1989 conviction for two charges of unlawful possession of a controlled substance,

2001 DUI and possession of a controlled substance convictions, a 2002 conviction for harassment

and several recent convictions for driving with a revoked or suspended license. All told, the PSR

determined that Williams had 13 criminal history points, producing a criminal history category of

VI.

       In response to the PSR, Williams filed a position paper that sought a reduced sentence

pursuant to U.S.S.G. § 5H1.6, which allows a court—only when certain circumstances are

present—to consider family responsibilities in determining whether a sentencing departure may be

warranted. Specifically, Williams informed the court that his twenty-two year old daughter has bone

marrow cancer, is confined to a wheelchair, and requires constant assistance to aid in her care.



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Although he is not the primary care-giver, Williams stated that he assists in his daughter’s care.

Additionally, Williams explained that he also assists in the care of his own mother.

       At sentencing, the district court adopted the findings of the PSR and found that a total offense

level of 21 and criminal history category of VI produced a Guidelines range of 77 to 96 months of

imprisonment. Williams again renewed his request to reduce the sentence due to Williams’ family

responsibilities. The government opposed a sentence below the Guidelines range because of

Williams’ criminal history and conduct in the instant offense. The court then considered the

18 U.S.C. § 3553(a) sentencing factors, as well as Williams’ request for a reduced sentence, and

imposed a sentence of 77 months imprisonment, at the lowest end of the Guidelines range. Neither

party raised an objection to this sentence. This appeal followed.

                                          II. ANALYSIS

A. Standard of Review

       On appeal, it does not appear that Williams challenges the district court’s denial of his

request for a downward departure under § 5H1.6. This is with good reason. Because it is undisputed

that the district court recognized its authority to depart from the guidelines, we have no discretion

to review the denial of a departure. United States v. Carter, 510 F.3d 593, 600 (6th Cir. 2007)

(declining to review a district court’s decision not to depart downward under § 5H1.6 when the court

recognized it had the discretion to do so).         Instead, Williams challenges the substantive

reasonableness of his sentence.

       We review a district court’s sentence for procedural and substantive reasonableness under

the deferential abuse of discretion standard. United States v. Jimenez, 605 F.3d 415, 419–20

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(6th Cir. 2010). Because the sentence imposed on Williams falls within the properly calculated

Guidelines range, we apply a rebuttable presumption that Williams’ sentence is reasonable. Id. at

420; see also Rita v. United States, 551 U.S. 338, 347 (2007). We will bypass procedural-

reasonableness review here because Williams does not contend that his sentence was procedurally

unreasonable. United States v. Tristan-Madrigal, 601 F.3d 629, 632 (6th Cir. 2010).

B. Substantive Reasonableness

         A substantive-unreasonableness claim is a claim that the length of the prison sentence is

“greater than necessary” to achieve the sentencing goals set forth in § 3553(a). Tristian-Madrigal,

601 F.3d at 632–33. “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. (citation omitted).

Here, Williams contends that his sentence is greater than necessary to fulfill the goals of § 3553(a)

for two reasons: (1) the district court gave an unreasonable amount of weight to one sentencing

factor, his criminal history, and (2) the district court did not give enough weight to the mitigating

circumstances of his family situation. While we do not review a district court’s denial of a departure

under § 5H1.6, § 3553(a)(5) requires a district court to consider the Sentencing Commission’s

pertinent policy statements, including § 5H1.6, when imposing a sentence. 18 U.S.C. § 3553(a)(5);

see Carter, 510 F.3d at 600–02. Thus, as part of our substantive reasonableness review, we do look

at how the district court considered Williams’ family circumstances in its analysis of the § 3553(a)

factors. Carter, 510 F.3d at 601–02.



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       As a starting point, our review of the record shows that the court conducted a thorough

analysis of the pertinent § 3553(a) factors. The court considered Williams’ criminal history and the

nature of his offense, see § 3553(a)(1), the need for the sentence to deter criminal conduct, see

§ 3553(a)(2)(B), the need to protect the public, see § 3553(a)(2)(C), the need to provide Williams

with education and drug treatment, see § 3553(a)(2)(D), the uniformity captured in the Guidelines

range, see § 3553(a)(6), and the lack of a need to provide restitution, see § 3553(a)(7). Likewise,

the district court’s analysis of each individual factor was careful and deliberate. For instance, in

examining the nature of the instant offense, the district court balanced the fact that Williams

possessed a firearm with the context that Williams did not brandish the firearm and did not appear

to possess the firearm in connection with another felony offense.

       In considering the need to protect the public and deter Williams from committing future

crimes, the district court certainly gave strong consideration to Williams’ extensive criminal history.

However, Williams does not point to anything in the record that would suggest that the consideration

of Williams’ criminal history was impermissible. Cf. Tristan-Madrigal, 601 F.3d at 634 (describing

cases where the district court impermissibly relies on a defendant’s criminal history to make

unfounded assumptions). Indeed, our own review of the record finds that there is no support to

Williams’ contention that the court placed an unreasonable amount of weight on Williams’ criminal

history. Instead, the record shows that the district court throughly reviewed each of Williams’

previous crimes and noted how they affected its decision. Moreover, because Williams has a long

and sometimes violent criminal history, it would have been quite reasonable for the district court to

give considerable weight to that history. United States v. Gunter, 620 F.3d 642, 647 (6th Cir. 2010)

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(holding that it is reasonable for a defendant’s long criminal history to cause the court to impose a

lengthy sentence because criminal history is relevant to so many of the § 3553(a) factors).

Furthermore, rather than placing an unreasonable amount of weight on Williams’ criminal history,

the record indicates that the district court actually reduced the amount of weight that it placed on

Williams’ criminal history because Williams had largely steered clear of committing any serious

offenses between 2002 and the instant conduct.

       Likewise, Williams’ contention that the district court should have given more weight to his

family circumstances is unfounded. First, it is important to note that courts are generally discouraged

from reducing a defendant’s sentence for family circumstances unless those circumstances are

“exceptional.”     United States v. Haj-Hamed, 549 F.3d 1020, 1027 (6th Cir. 2008);

United States v. Reed, 264 F.3d 640, 653–54 (6th Cir. 2001) (“This court has generally not approved

of downward departures for family responsibilities based on a parent’s obligation to a child.”); see

also U.S.S.G. § 5H1.6 (“In sentencing a defendant . . . family ties and responsibilities are not

ordinarily relevant . . . .”). Even more unhelpful to Williams, our review of the record shows that

the district court carefully considered Williams’ family circumstances, decided that they were

mitigating, and gave Williams a lower sentence as a result.

       At the sentencing hearing, the court listened to defense counsel’s explanation of Williams’

tragic family circumstance, including how Williams’ daughter requires constant assistance and how

Williams also assists in the general care of his own mother. Williams, however, informed the court

that other people take care of both his daughter and mother. The court acknowledged that Williams’

circumstances were “tragic” but also noted that a sentence below the Guidelines range would not

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USA v. Odell Williams

necessarily remedy the situation because Williams would still be unable to provide care for an

extended period of time. Indeed, the court noted that Williams’ role as a secondary care-giver had

already been interrupted because he had been incarcerated for several months. Still, the court

specifically determined that Williams’ family circumstances were mitigating.

       Further, contrary to Williams’ view, and despite the general discouragement against

considering family circumstances, the district court actually gave weight to these circumstances and

imposed a lower sentence as a result:

       I would actually, on this record, go in the upper end of the guidelines, but not for a
       few things. And I say that because of the seriousness of the offense and because of
       the seriousness of the nature of the criminal history . . . but the reason not to go there
       is a couple of things. One is, I’m looking at the gap in the history. Two, I’m looking
       at . . . his family situation.

Our case law recognizes that district courts have a “special competence” in determining whether

family circumstances are so extraordinary to justify a lower sentence; thus we should generally defer

to the district court’s analysis. Haj-Hamed, 549 F.3d at 1028. This is particularly so in cases such

as this one, where the district court has actually imposed a lower sentence as a result of the family

circumstances and there is nothing in the record to suggest the district court’s consideration of

Williams’ family circumstances constituted an abuse of discretion.

       Ultimately, Williams has not rebutted the presumption that his sentence is reasonable because

he has provided no support to his allegations of substantive unreasonableness. Merely arguing that

the sentence imposed is longer than necessary is insufficient to rebut the presumption of

reasonableness. United States v. Dexta, 470 F.3d 612, 616 (6th Cir. 2006) (“[The] mere allegation

that the sentence imposed is greater than necessary . . . is insufficient to rebut the presumption of

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reasonableness.”). Likewise, our own review of the record shows that the court’s consideration of

the § 3553(a) factors (including Williams’ criminal history and family circumstances) and the

resulting sentence was quite reasonable. This is particularly the case when the basis for Williams’

request for an even lower sentence is discouraged. See United States v. Odoms, 341 F. App’x 142,

147 (6th Cir. 2009) (unpublished). While Williams’ family circumstances are certainly tragic, his

unhappiness with his sentence does not make the sentence unreasonable when the district court

followed the mandate of § 3553(a) in all relevant respects. United States v. Jackson, 466 F.3d 537,

540 (6th Cir. 2006).

                                       III. CONCLUSION

       For these reasons, we affirm.




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