                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 16a0323n.06

                                           No. 15-3863

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                       FILED
                                                                                   Jun 14, 2016
UNITED STATES OF AMERICA,                               )                      DEBORAH S. HUNT, Clerk
                                                        )
       Plaintiff-Appellee,                              )
                                                        )   ON APPEAL FROM THE UNITED
v.                                                      )   STATES DISTRICT COURT FOR
                                                        )   THE NORTHERN DISTRICT OF
SAMUEL E. CONDO, JR.,                                   )   OHIO
                                                        )
       Defendant-Appellant.                             )



       BEFORE: BOGGS, ROGERS, and STRANCH, Circuit Judges.



       PER CURIAM.           Samuel E. Condo, Jr., a federal prisoner, appeals the sentence of

188 months of imprisonment imposed following his guilty plea to charges of enticement, receipt

and transport of visual depictions of minors engaged in sexually explicit conduct, transfer of

obscene material to a minor, and travel to engage in illicit sexual conduct.

       Condo was sentenced at the bottom of the guidelines-range computation, to which no

objections were raised. He argues that the district court issued a procedurally unreasonable

sentence because it “gave scant consideration” to the sentencing factors within 18 U.S.C.

§ 3553(a), including Condo’s personal history of mental illness and the fact of his having been

molested at a young age. Appellant’s Br. at 24. He also argues that the district court issued a

substantively unreasonable sentence because the district court did not take into consideration

Condo’s characteristics as a victim of sexual abuse and his potential for rehabilitation. Id. at 28.
No. 15-3863
United States v. Condo

He further argues that the district court should have granted a departure or variance from the

guidelines range based on consideration of the sentencing factors, particularly his history of

sexual abuse as a child. Finally, he argues that his sentence violates the Eighth Amendment

because his criminal history category of II overstated his criminal history, which consisted of

two convictions of driving under the influence, and because the district court failed to consider

his characteristics as a victim of childhood sexual abuse and his need for rehabilitation. Id. at

30-31, 31-40.

       We generally review a criminal sentence for reasonableness under an abuse-of-discretion

standard. Gall v. United States, 552 U.S. 38, 41 (2007). A sentence within the guideline range is

entitled to a rebuttable presumption of substantive reasonableness. United States v. Cruz, 461

F.3d 752, 754 (6th Cir. 2006). “However, where . . . the defendant fails to lodge any objection at

the ending of the sentencing hearing in response to a properly worded invitation from the court in

compliance with United States v. Bostic, 371 F.3d 865 (6th Cir. 2004), we review only for plain

error” a challenge to the procedural reasonableness of the defendant’s sentence. United States v.

Gunter, 620 F.3d 642, 645 (6th Cir. 2010); United States v. Penson, 526 F.3d 331, 337 (6th Cir.

2008) (discussing the Bostic question and observing that “while defendants do not need to raise

the claim of substantive unreasonableness before the district court to preserve the claim for

appeal, defendants must do so with respect to claims of procedural unreasonableness”). Because

the district court asked the Bostic question and Condo did not lodge any objection to the district

court’s explanation of his sentence, we review the procedural reasonableness of his sentence for

plain error and review the substantive reasonableness of his sentence under the abuse-of-

discretion standard. Review of the sentencing transcript in this case reveals no plain error or

abuse of discretion by the district court. The district court carefully considered the § 3553(a)


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No. 15-3863
United States v. Condo

factors in determining Condo’s sentence. The district court also addressed and rejected the

argument that Condo’s criminal history was overstated, and considered and rejected his

arguments to vary or depart downwards, finding consideration of his personal history

outweighed by the seriousness of his offense and the need to protect the public. Condo’s within-

guidelines sentence is therefore substantively and procedurally reasonable.

       Condo did not argue below that his sentence violated the Eighth Amendment. Therefore,

we review this issue for plain error only. United States v. Vonner, 516 F.3d 382, 385 (6th Cir.

2008) (en banc). No plain error occurred, as the Eighth Amendment forbids only sentences that

are grossly disproportionate to the crimes of conviction. United States v. Hughes, 632 F.3d 956,

959 (6th Cir. 2011).

       Although the district court acknowledged that it could have imposed a shorter sentence, it

was not required to do so, and Condo’s arguments are insufficient to disturb the district court’s

judgment. See United States v. Smith, 516 F.3d 473, 478 (6th Cir. 2008). Accordingly, we

AFFIRM the sentence imposed by the district court.




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