                                      File Name: 11a0274n.06

                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                            No. 10-3003

                            UNITED STATES COURT OF APPEALS                                  FILED
                                 FOR THE SIXTH CIRCUIT                                  Apr 28, 2011
                                                                                  LEONARD GREEN, Clerk
UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

v.                                                          ON APPEAL FROM THE
                                                            UNITED STATES DISTRICT
DONNY HOWELL,                                               COURT FOR THE SOUTHERN
                                                            DISTRICT OF OHIO
          Defendant-Appellant.


                                                       /

Before:          MARTIN, NORRIS, and SILER, Circuit Judges.

          BOYCE F. MARTIN, JR., Circuit Judge. Donny Howell appeals the sentence he received

after pleading guilty to being a felon in possession of a firearm. Howell argues that the United States

improperly refused to move for a one-level reduction in his offense level based on his acceptance

of responsibility, rendering his sentence procedurally unreasonable. Additionally, Howell argues that

his sentence is substantively unreasonable in light of his difficult upbringing. However, the United

States was not required to move for a reduction in offense level because it believed that Howell had

not accepted responsibility, and Howell has not rebutted the presumption that his within-Guidelines

sentence is substantively reasonable. Therefore, we AFFIRM Howell’s sentence.

                                                  I.
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        Cincinnati police officers saw Donny Howell walking and, knowing that there was an open

warrant for his arrest, approached him. Howell, it seems, also knew about the open warrant, and

attempted to flee. The officers gave chase. With the officers in hot pursuit, Howell pulled a pistol

out of his jacket and attempted to heave it over a metal gate. The pistol did not make it over the gate,

and the officers noted the location of the gun, which was never out of their line of sight. Eventually

the officers caught up to Howell and placed him under arrest.

        While handcuffing Howell, the officers observed Ronald Crawley pick up the gun that

Howell had discarded. After a brief chase, officers apprehended Crawley and transported him to jail

along with Howell.

        Howell did not enter a plea agreement, but pled guilty to being a felon in possession of a

firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). Crawley, however, did not plead guilty.

Howell voluntarily testified as a witness at Crawley’s criminal trial in an effort to show that Crawley

was not the one who picked up the gun he had discarded. Howell testified that during his tussle with

the officers he saw an unrelated third person who “deviously ran up on the scene,” and took the gun.

The jury nonetheless convicted Crawley of being a felon in possession of a firearm.

        The United States did not appreciate Howell’s testimony. It filed a memorandum urging the

district court not to credit him with accepting responsibility because, in its view, Howell attempted

to obstruct justice by offering false testimony at Crawley’s trial. The United States recognized that

the court could give Howell a two-point reduction in offense level for accepting responsibility under

section 3E1.1(a) of the United States Sentencing Guidelines. But, the United States informed the
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court that it would not be moving for an additional, one-level acceptance-of-responsibility reduction

pursuant to section 3E1.1(b) of the Guidelines.

        The district court had presided over Crawley’s trial and saw Howell’s testimony. At

sentencing, the district court stated in reference to Howell’s testimony, “It was incredible. It was

literally incredible. Mr. Howell’s manner of testifying, his facial expressions, indicated what I

considered to be a manifest lack of respect for the law and for the Court.” In spite of this, the district

court gave Howell a two-level adjustment for acceptance of responsibility under section 3E1.1(a)

of the Guidelines.

        This reduction left Howell at an offense level of eighteen and criminal history category VI,

for which his advisory Guidelines range was four years and nine months to five years and eleven

months of imprisonment. The district court imposed a sentence at the top of the Guidelines

range—five years and eleven months imprisonment.

                                                   II.

        When reviewing a criminal defendant’s offense level under the Guidelines, we review the

district court’s factual findings for clear error and its legal conclusions de novo. United States v.

Petrus, 588 F.3d 347, 352 (6th Cir. 2009).

        Section 3E1.1(a) of the Guidelines allows the district court to reduce a defendant’s offense

level by two levels if the defendant “clearly demonstrates acceptance of responsibility for his

offense.” If the defendant meets this requirement, section 3E1.1(b) provides that the United States

may move for an additional one-level reduction if the defendant’s offense level is sixteen or greater
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and the defendant assisted authorities in the investigation or prosecution of his own misconduct.

U.S.S.G. § 3E1.1; see United States v. Lapsins, 570 F.3d 758, 767-68 (6th Cir. 2009).

          In Lapsins, we held that the Guidelines give the United States discretion to file a motion for

an additional one-level reduction under section 3E1.1(b) so long as the United States does not act

with a constitutionally impermissible motive. Id. at 769. The defendant in Lapsins had entered a

plea agreement but then contested some of the factual findings in the presentence report. Id. at 768.

At sentencing the United States argued that the defendant should not receive any reduction for

having accepted responsibility in light of his objections to the presentence report and use of the word

“allegedly” in his sentencing memorandum to describe acts for which he pled guilty. Id. The district

court, however, disagreed. It believed the defendant had accepted responsibility and granted a two-

level reduction in offense level. Id. at 769. We affirmed the defendant’s sentence, holding that even

if the district court awards a two-level reduction pursuant to section 3E1.1(a), the United States may

refuse to move for the additional one-level reduction under section 3E1.1(b) if it disagrees with the

district court’s assessment and believes the defendant has not genuinely accepted responsibility. Id.

at 770.

          Similarly, here, the record reflects that the United States had a good faith belief that Howell

had not accepted responsibility based on his incredible testimony at Crawley’s trial. Howell argues

that Lapsins was wrongly decided, but we are powerless to overrule the published decision of

another panel. See Arrow v. Fed. Reserve Bank of St. Louis, 358 F.3d 392, 393 (6th Cir. 2004).

While Howell, unlike the defendant in Lapsins, did not contest any of the factual findings in his

presentence report, offering highly incredible testimony at trial in an effort to help a friend avoid
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conviction in the manner that Howell did is not consistent with having accepted responsibility for

his actions. Therefore, because the United States had a valid ground for not moving for an additional

one-level reduction, we are bound to follow Lapsins and hold that Howell’s sentence was

procedurally reasonable.

                                                 III.

       In selecting a sentence, the district court must consider the factors set forth in section 3553(a)

and arrive at a sentence “sufficient, but not greater than necessary, to comply with” those factors.

18 U.S.C. § 3553(a); United States v. Gunter, 620 F.3d 642, 647 (6th Cir. 2010). A sentence will

be deemed substantively unreasonable if the court “select[s] the sentence arbitrarily, bas[es] the

sentence on impermissible factors, fail[s] to consider pertinent § 3553(a) factors or giv[es] an

unreasonable amount of weight to any pertinent factor.” United States v. Collington, 461 F.3d 805,

808 (6th Cir. 2006) (citations omitted) (alterations in original). We apply a rebuttable presumption

of reasonableness to sentences falling within a defendant’s properly calculated guidelines range.

United States v. Ruvalcaba, 627 F.3d 218, 225 (6th Cir. 2010).

       Howell argues that his within-Guidelines sentence is unreasonable because of his difficult

upbringing. However, the district court considered this factor in selecting Howell’s sentence, and

this assertion is insufficient to rebut the presumption of reasonableness afforded to his within-

Guidelines sentence. Therefore, Howell’s sentence is not substantively unreasonable.

                                                  IV.

       The United States acted within its discretion when it refused to move for an additional one-

level reduction in Howell’s offense level for acceptance of responsibility. Therefore, Howell’s
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sentence is not procedurally unreasonable. Because we also conclude that Howell has not rebutted

the presumption of reasonableness afforded to his within-Guidelines sentence, we AFFIRM his

sentence.
