                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0265n.06

                                           No. 10-5309                                    FILED
                                                                                      Apr 26, 2011
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )         ON APPEAL FROM THE
       Plaintiff-Appellee,                               )         UNITED STATES DISTRICT
                                                         )         COURT FOR THE EASTERN
v.                                                       )         DISTRICT OF KENTUCKY
                                                         )
LONNIE R. JUDE,                                          )                MEMORANDUM
                                                         )                    OPINION
       Defendant-Appellant.                              )



BEFORE:        McKEAGUE and WHITE, Circuit Judges; ZOUHARY, District Judge.*

       PER CURIAM. Lonnie R. Jude pled guilty to distribution of oxycodone, in violation of 21

U.S.C. § 841(a)(1), and was sentenced to nine months in prison. He appeals, arguing that the district

court abused its discretion by sentencing him to a term of imprisonment instead of probation. We

AFFIRM.

       “The touchstone of appellate review of a district court’s sentencing decision is

reasonableness, a concept that has both a procedural and substantive component.” United States v.

Gunter, 620 F.3d 642, 645 (6th Cir. 2010). Here, J ude chal l enges onl y t he s ubs t an t i v e

reasonableness of his sentence. To determine if a sentence is substantively reasonable, we consider

whether the length of the sentence is “sufficient, but not greater than necessary, to comply with the

purposes” of 18 U.S.C. § 3553(a), United States v. Harmon, 607 F.3d 233, 240 (6th Cir. 2010)

       *
         The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio,
sitting by designation.
No. 10-5309
United States v. Jude

(internal quotation marks omitted), “‘tak[ing] into account the totality of the circumstances,

including the extent of any variance from the Guidelines range.’” United States v. Jimenez, 605 F.3d

415, 420 (6th Cir. 2010) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). Where, as here,

the defendant is sentenced within a properly calculated Guidelines range, we apply a presumption

of substantive reasonableness. United States v. Graham, 622 F.3d 445, 464 (6th Cir. 2010). We

consider the substantive reasonableness of a sentence under an abuse of discretion standard. See

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

       Under § 5B1.1(a) of the U.S. Sentencing Guidelines Manual, the district court may sentence

a defendant to probation if his resulting Guidelines range is in Zone B of the sentencing table. Jude’s

established range, which was six to twelve months, fell within this zone. Jude argues on appeal that

the district court should have imposed probation because his criminal conduct was minimal; his prior

convictions were misdemeanors resulting only in fines or probation; his “prior encounters” with the

state domestic violence system “were ultimately dismissed;” and he had extensive family ties, was

lacking in education, had remained steadily employed when work was “available,” and had no

history of mental health or substance abuse treatment.

       While the Guidelines permit imposition of a term of probation, the sentencing court is not

required to do so. Here, the district court sentenced Jude in the middle of the established Guidelines

range, making his sentence presumptively reasonable. Further, the court explained that although

Jude’s criminal history did not include “major crimes,” his criminal conduct was escalating, the

sentence needed to reflect the seriousness of Jude’s crime, and a term of imprisonment would serve

as a deterrent. Thus, we cannot find that the court abused its discretion in sentencing Jude to nine

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No. 10-5309
United States v. Jude

months of imprisonment. See United States v. Johnson, Nos. 92-5459 & 92-5477, 1993 WL 133801,

at *7 (6th Cir. Apr. 28, 1993). Accordingly, we AFFIRM the sentence imposed by the district court.




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