                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 06a0439n.06
                                 Filed: June 27, 2006

                                          No. 05-6380

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

v.                                                        ON APPEAL FROM THE UNITED
                                                          STATES DISTRICT COURT FOR
DeANGELO OVERTON,                                         THE MIDDLE DISTRICT OF
                                                          TENNESSEE
          Defendant-Appellant.



                                                     /

Before:          MARTIN and GILMAN, Circuit Judges; and SARGUS, District Judge.*

          BOYCE F. MARTIN, JR., Circuit Judge. The defendant, DeAngelo Overton, was charged

in a one-count indictment with possessing fifty grams or more of crack cocaine with the intent to

distribute in violation of 21 U.S.C. § 841(a)(1) (carrying a mandatory minimum of ten years with

a maximum penalty of life imprisonment). Overton eventually pled guilty and then moved to

withdraw his guilty plea. Following hearings on a motion to suppress evidence and the denial of the

defendant’s motion, he again pled guilty, without a plea agreement. The district court sentenced

Overton to 210 months imprisonment. He now appeals arguing that his sentence is unreasonable.

We AFFIRM the defendant’s sentence.

                                                I.


          *
        The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 05-6380
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        On June 20, 2003, the defendant agreed to deliver two ounces of crack cocaine to a

confidential informant working for the Metro Nashville Police Department Crime Suppression Unit.

Overton agreed to deliver the crack cocaine to a Days Inn Hotel. The police established surveillance

and watched Overton arrive. He was driving a Pontiac Grand Am and was accompanied by his

girlfriend and his girlfriend’s five year old daughter, who, at the time, was not visible to the officers.

When Overton parked in front of the room, opened the driver’s side door and popped open the trunk,

Detective Johnson directed the officers to execute the arrest. The officers moved in and later

testified to having identified themselves both verbally and through badges and police markings as

law enforcement officers.

        Detectives Dixon and Galluzzi were the first officers to approach and were dressed in

marked police raid vests. They ran to the driver’s side door whereupon the defendant shut the door.

The detectives claim that from two feet away, they loudly identified themselves as officers and

ordered Overton to turn off the car. They also allege that Overton looked at them, and in response

to their command, “Police. Stop. Turn off the car,” Overton shook his head “No.” Overton then

put the car in reverse and rammed Detective Tony Jackson’s unmarked police vehicle, which was

parked directly behind Overton in order to block him in. Overton then put the car in drive and

rammed a parked car in front of him. Overton hit the parked car so hard that it spun the car around

and into another officer’s parked vehicle. The officers claim that they continued to yell “Police.

Stop.” But, Overton put the car in reverse once more and again rammed into Detective Jackson’s

car. Still within two to three feet of the defendant, and fearing that he was going to run them over,
No. 05-6380
United States v. Overton
Page 3

the officers opened fire, flattening the car’s tires, and breaking the driver’s side front and back

windows.

       At this point, Overton got out of the car and yelled, “You shot the fucking kid.” The officers

had not in fact shot Overton’s girlfriend’s daughter. Overton then resisted arrest before the officers

were able to subdue him. Detective Johnson advised Overton of his Miranda rights, and Overton

then admitted that there were about nine ounces of crack cocaine in the trunk and that he was going

to receive $2,000 for delivery. The officers recovered approximately eleven ounces of crack, as well

as baggies of crack cocaine, digital scales, and $1,600 in cash.

       Overton eventually pled guilty to a one count indictment. At sentencing, the district court

applied a three level enhancement under U.S.S.G. § 3A1.2 for assaulting law enforcement officers

in a manner creating a substantial risk of serious bodily injury. Overton objected and asserted that

he did not know they were law enforcement officers. The district court overruled the objection. The

district court then determined that Overton’s offense level was 34 with a criminal history category

of IV and an advisory guideline range of 210-262 months. The court sentenced Overton to 210

months imprisonment.

       The Court must take into account the sentencing guidelines. And we have spent a
       lot of time litigating the various points under the guidelines in order to figure out
       what the advisory guideline range was. And although I didn’t rule in the defendant’s
       favor on everything, I certainly ruled in the defendant’s favor on significant issues
       — which kept his three points for acceptance of responsibility, despite the
       Government’s opposition to that; and removed two points for obstructive conduct,
       which the Government argued passionately for as well. So we are left with a
       guideline range of 210 to 262 months.

       This Court’s practice since Booker and Fanfan has been to generally impose a
       sentence in the guideline range unless there is . . . a darn good reason to not follow
       the guidelines and give a sentence within the guidelines.
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       In this case I cannot find that darn good reason to sentence Mr. Overton outside the
       guideline range. This was a serious crime with some aggravating factors to it.

       The guidelines were constructed to help structure a sentence that reflects all the
       various aspects of the crime; so that for crimes that have characteristics and factors
       in common, a similar sentence is given across the country. That was the whole
       reason that the sentencing guidelines were put in place. And moreover, that
       defendants with similar criminal histories will receive comparable sentences for
       comparable crimes across the county, so that we do not have disparate sentencing.

       What has usually influenced this Court to give a sentence that is not within the
       guideline range, which takes into account all those various factors of criminal history
       and the offense in question and all the aspects of the offense in question, is
       background information about a defendant that I find compelling or extraordinary in
       some manner. And I guess the only thing I find here extraordinary — and I’m afraid
       that I’m inclined to agree with [the prosecutor’s] take on that background
       information, as opposed to [defense counsel’s] take on that background information
       — is that here is a defendant who came from a wonderful background. He came
       from a wonderful background.

       His mother made him go to church, go to school, finish school, do extra programs
       in both places. He has numerous siblings who have excelled. Everybody is working.
       Everybody is operating within the law. Everybody is succeeding.

       And so Mr. Overton had everything going for him. And at some point, he turned his
       back on all of that. And so he has less excuse, in the Court’s mind, for engaging in
       the conduct that he has engaged in now for several years, that has been harmful to
       others and society.

       So I find nothing mitigating here. I just can’t find it. Despite excellent advocacy on
       the part of [defense counsel], I just can’t find it.

       This is a very serious offense. He received a slap on the wrist for similar conduct.
       It didn’t have any effect. He just continued on with serious conduct of this sort. And
       so the only way to really address the seriousness of this offense, to promote respect
       for the law, and to mete out a just punishment that hopefully will deter Mr. Overton
       and others and protect the public from his further crimes, is to give him a significant
       sentence, which takes into account all the various factors I’ve talked about of his
       criminal background and the seriousness of this offense.
No. 05-6380
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       So I am going to sentence him to the bottom of the guideline range, 210 months. But
       I’m not going below the guideline in this case, because I can’t find any reason to do
       that. . . .

       To address anger management issues, he shall participate in a mental health program,
       as directed by the probation office. . . .

       Let me say to you that I applaud the efforts that you are making. I applaud your
       taking advantage of the courses that are being made available to you. I hope you will
       continue to take as many courses as you can to better yourself, to get control of your
       emotions and tendencies that have gotten you into trouble. I hope you’ll continue
       to do that.

       I have some hope for you. I do have some hope for you. I think that you are
       motivated to turn your life around, and I hope that you do that. I wish that very
       much for you.

       I’m glad to see all your family here supporting you, and I hope they will continue to
       support you. You will need it.

       Overton now appeals arguing that the enhancement was improper and that his sentence is

unreasonable. The government asserts that this Court lacks jurisdiction over appeals where the

district court chooses not to sentence below the guideline range, and even so, that the sentence is

reasonable.

                                                II.

       We reject the government’s meritless jurisdiction argument, see United States v. McBride,

434 F.3d 470 (6th Cir. 2006), but conclude that the district court properly applied the enhancement

and that the sentence is reasonable.

       A. The Enhancement

       We have held that to evaluate a sentence for reasonableness, it must first be determined

whether the advisory guideline range was properly calculated. McBride, 434 F.3d at 476 (citing
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Page 6

United States v. Mickelson, 433 F.3d 1050 (8th Cir.2006) (“As we recognized in United States v.

Haack, 403 F.3d 997, 1002-03 (8th Cir.2005), calculation of the appropriate guideline sentence is

only the first step in sentencing decisions under Booker, for the court must also consider the §

3553(a) factors before making its ultimate decision.”)). In this case, the only dispute about the

guideline calculation is whether the enhancement for assaulting a law enforcement officer was

proper.

          Under U.S.S.G. § 3A1.2(b), the enhancement applies if “during the course of the offense or

immediate flight therefore, the defendant . . . knowing or having reasonable cause to believe that a

person was a law enforcement officer . . . assaulted such officer in a manner creating a substantial

risk of serious bodily injury.” The district court conducted an evidentiary suppression hearing and

heard testimony from the officers relating to the facts of the arrest. After hearing the testimony, the

district court made the factual finding that Overton “knew that these were police officers.” This

factual finding is subject to reversal only if clearly erroneous. United States v. Henley, 360 F.3d

509, 516-17 (6th Cir.2004). Overton admits to the conduct but alleges that he did not know that the

men approaching him were law enforcement officers.

          The arresting officers testified that they were wearing clothing with police insignia and that

they repeatedly yelled “Police. Stop.” The district court also listed to Overton’s testimony and

concluded that it “certainly reveals to the Court that the defendant knew that these were police

officers.” The court’s finding was based on its credibility determinations. This Court gives “great

deference to the district court’s credibility determinations as it is in the best position to observe

witnesses.” United States v. Johnson, 344 F.3d 562, 567 (6th Cir.2003). At best, Overton alleges
No. 05-6380
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Page 7

that his statements were ambiguous. Nevertheless, the officer’s statements were clear, and a district

court can choose to believe the officers’ testimony. Thus, application of the enhancement was

proper.

          B. Reasonableness Review

          In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held that the federal

sentencing guidelines are now advisory. A district court must “impose a sentence sufficient, but not

greater than necessary to comply with the purposes set forth in [§ 3553(a)(2)].” 18 U.S.C. §

3553(a). This Court now reviews sentences for reasonableness. United States v. Webb, 403 F.3d

373, 383 (6th Cir. 2005); see also United States v. Foreman, 436 F.3d 638, 644 n.1 (6th Cir. 2006)

(stating that reasonableness is the appellate standard of review). This Court has held that “we may

conclude that a sentence is unreasonable when the district judge fails to ‘consider’ the applicable

guidelines range or neglects to ‘consider’ the other factors listed in 18 U.S.C. § 3553(a), and instead

simply selects what the judge deems an appropriate sentence without such consideration.” Webb,

403 F.3d at 383.

          In United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006), this Court determined that

a sentence within a properly calculated advisory guideline range is afforded a presumption of

reasonableness. Nevertheless, this “rebuttable presumption does not relieve the district court of the

obligation to consider other relevant statutory factors or sufficiently articulate its reasoning so as to

permit reasonable appellate review.” United States v. Morris, — F.3d —, 2006 U.S. App. LEXIS

12250, at *5 (6th Cir. May 19, 2006) (citing United States v. Richardson, 437 F.3d 550 (6th Cir.

2006)); see also Foreman, 436 F.3d at 644 (explaining that “Williams does not mean that a
No. 05-6380
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Guideline sentence will be found reasonable in the absence of evidence in the record that the district

court considered all of the relevant section 3553(a) factors”); United States v. Jackson, 408 F.3d

301, 305 (6th Cir. 2005) (reaffirming that “we as an appellate court must still have the articulation

of the reasons the district court reached the sentence ultimately imposed”). Although this Court does

not require “the ritual incantation of these factors to affirm a sentence,” Williams, 436 F.3d at 708-

09, there must be “sufficient evidence in the record to affirmatively demonstrate the court’s

consideration” of the relevant section 3553(a) factors, McBride, 434 F.3d at 476 n.3.

       In this case, the district court properly calculated the advisory guideline range. The court

then imposed a sentence at the bottom of that advisory range. To the extent that the district court’s

statement that it imposes a guideline sentence unless there is a “darn good reason” not to is simply

a colloquial way of acknowledging that a sentence within the guidelines is afforded a presumption

of reasonableness on appeal, see Williams, 436 F.3d at 708, the statement is not reversible error. If

the district court was ignoring its mandate to “impose a sentence sufficient, but not greater than

necessary” to achieve the purposes of sentencing, 18 U.S.C. § 3553(a), however, or if the district

court was applying its own subjective standard of a “darn good reason” even if the section 3553(a)

factors counseled against a sentence within the guidelines, then such a sentencing philosophy would

run counter to statutory law and the law of this Circuit. See McBride, 434 F.3d at 476 (holding that

consideration of the appropriate guideline range is “not the end of the sentencing inquiry; rather it

is just the beginning”); see also Foreman, 436 F.3d at 644 n.1 (noting that reasonableness is the

appellate standard of review and a district court must follow its statutory mandate). In the present
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case, however, there is ample evidence that the district court considered the relevant section 3553(a)

factors, including, most extensively, Overton’s personal background.

       First, the court noted that the guidelines are advisory and it had the power to vary from the

recommended range. The court also discussed the seriousness of Overton’s crime and his reaction

as the officers approached. The court also mentioned aggravating factors, including the fact that

Overton was committing the crime and fleeing in a reckless manner with an unrestrained five year

old child in the backseat of the car.

       The court further found that the defendant’s criminal history was substantial and that he had

been given “a slap on the wrist” by the state courts for very serious crimes, such as the instant

offense. Thus, the court believed that Overton was not learning his lesson and would continue to

commit crimes unless incarcerated for a substantial amount of time. The district court considered

Overton’s family background and rejected it as a mitigating factor because he came from a

“wonderful background.” Overton contests this characterization, but the district court found nothing

extraordinary and mitigating about Overton’s background compared to other defendants and other

persons with similar backgrounds who do not consistently commit crimes.

       The district court also considered the effect of drug crimes on society, the seriousness of the

offense, and the need to avoid unwarranted sentencing disparities. The court discussed the need to

deter Overton from future crimes and to protect the public. The court found most relevant the

defendant’s criminal history, the seriousness of the present offense, and the lack of mitigating

evidence. Thus, the district court found no reason to vary from the guidelines, although the court

imposed the lowest possible guideline sentence. Finally, the court discussed its hopes that Overton
No. 05-6380
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Page 10

would continue to take classes, such as anger management classes, and would work toward

rehabilitation.

        Although the sentence is a long one, it reflects the seriousness of the offense as well as a

substantial criminal history, which includes being on probation at the time of the instant offense, as

well as a conviction for a felony offense for discharging a firearm in a public place in an attempt to

shoot at someone in a car. Other convictions include one for assault and a drug conviction for

possession or casual exchange of cocaine, where Overton was originally charged with two counts

of the sale of a controlled substance. The charges were lessened after he agreed to plead guilty. The

defendant also had two other arrests, including one for aggravated assault with a deadly weapon.

Given the district court’s substantial consideration of the section 3553(a) factors and the affirmative

evidence in the record indicating such consideration, we see no basis for determining that Overton’s

sentence is not reasonable.

                                                 III.

        For the reasons discussed above, we AFFIRM the sentence imposed.
