                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 08a0328n.06
                              Filed: June 10, 2008

                                            No. 07-3173

                           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 MAPP,                                          )    THE NORTHERN DISTRICT OF
                                                        )    OHIO
       Defendant-Appellant.                             )
                                                        )


Before: BOGGS, Chief Judge; MARTIN and SILER, Circuit Judges.

       PER CURIAM. Deangelo Mapp appeals his sentence of 24 months’ imprisonment imposed

after he pleaded guilty to a single count of bank fraud in violation of 18 U.S.C. §§ 1344 and 2. He

argues that the district court erred by (1) failing to find that his criminal history category (“CHC”)

over-represented his past criminal conduct, (2) denying his request for a downward departure, (3)

denying his request for a downward variance, and (4) refusing to reduce his offense level for his

allegedly minor role in the offense. The United States claims that this appeal is barred by a waiver

provision in the plea agreement. We AFFIRM. In doing so, we find it unnecessary to express an

opinion on the validity of the appeal waiver provision because Mapp’s arguments are patently

without merit.


                                                  1
BACKGROUND

       Jacqueline West, Melvin West, Gwen Mapp, and Deangelo Mapp defrauded Key Bank and

obtained moneys under the custody and control of Key Bank, the deposits of which were then

insured by the Federal Deposit Insurance Corporation, by means of false and fraudulent pretenses

and representations. As a processor in the Trust Department, it was Jacqueline West’s duty to issue

checks as directed by the trustees. When a check needed to be reissued, West would issue the check

to one of her relatives involved in the scheme, Melvin West (husband), Gwen Mapp (sister), and

Deangelo Mapp (brother-in-law), instead of reissuing it to the intended recipient. To conceal the

scheme, Jacqueline West created fictitious work orders indicating that the check needed to be

reissued to one of her relatives. The Wests and the Mapps fraudulently cashed eight checks, causing

Key Bank to suffer a total loss of $101,689.99. Deangelo Mapp cashed one check for $35,042.47.

       All four of the participants in the scheme were indicted and Deangelo Mapp pleaded guilty

to a single count of bank fraud in violation of 18 U.S.C. §§ 1344 and 2. His base offense level was

6, pursuant to USSG § 2B1.1, but was increased by 6 levels because he caused a loss greater than

$30,000, pursuant to USSG § 2B1.1(b)(1)(D), and his offense level was reduced by 2 levels because

he accepted responsibility, pursuant to USSG § 3E1.1(a). He had 21 criminal history points, but only

19 points could be counted because only four of his six convictions for minor offenses were

countable under USSG § 4A1.1(c). With an offense level of 10 and a CHC of VI, Mapp’s

Guidelines range was 24-30 months’ imprisonment.

       Mapp filed a sentencing memorandum objecting to his presentence report. He argued that

he was entitled to a downward departure or variance because his CHC over-represented his criminal

history and likelihood of recidivism. He argued that his Guidelines range of 24-30 months’


                                                 2
imprisonment was unreasonable because other participants in the scheme received lighter sentences.

The district court rejected his arguments and sentenced him to 24 months’ imprisonment, the bottom

of his Guidelines range, three years of supervised release, and restitution in the amount of

$35,042.47 to Key Bank.

ANALYSIS

Over-representation of Criminal History Claim

       USSG § 4A1.3 states that “[i]f reliable information indicates that the defendant's criminal

history category substantially over-represents the seriousness of the defendant's criminal history or

the likelihood that the defendant will commit other crimes, a downward departure may be

warranted.” Mapp contends that the district court should have found that his CHC substantially

over-represented the likelihood that he will commit other crimes and it should have granted him a

downward departure based on that finding. We find this argument wholly without merit.

       Mapp’s extensive criminal history spans three decades and encompasses very serious

offenses, including drug trafficking, carrying a concealed weapon with violence specification,

assault, and resisting arrest. He tested positive for cocaine and marijuana in 2006 and he failed to

appear for later drug tests. He was on probation for a state offense when he participated in the

scheme to defraud Key Bank. His argument that his criminal history is over-represented because

many of his offenses were resolved on the same day has no merit. The reason that so many of his

offenses were resolved on the same day is that he failed to appear in court for the many offenses he

committed in 1992 and 1993, including drug trafficking and carrying a concealed weapon with

violence specification, and he was not apprehended until 1994. Once he was apprehended, he




                                                 3
pleaded guilty or nolo contendre to all of the charges on the same day and he served six years in

prison before being paroled in 2000.

Refusal to Grant a Downward Departure

       Mapp argues that the district court erred by refusing to grant him a downward departure at

sentencing. He argued that he was entitled to a downward departure because his father left his family

when he was in the third grade and because most of his crimes involved drugs. However, “we shall

not review decisions of a district court not to depart downward unless the record reflects that the

district court was not aware of or did not understand its discretion to make such a departure.” United

States v. Puckett, 422 F.3d 340, 345 (6th Cir. 2005). Here, the district court was clearly aware of and

understood its discretion to make a downward departure. The district court exhaustively discussed

the § 3553(a) factors, the relevant Booker considerations, and the advisory nature of the Guidelines.

Refusal to Grant a Variance

       Mapp argues that the district court should have granted him a variance because the other

participants in the scheme received lighter sentences. We review the district court’s sentencing

determination for reasonableness. United States v. Thomas, 498 F.3d 336, 339 (6th Cir. 2007). The

reasonableness of a sentence is reviewed under a “deferential abuse-of-discretion standard” in light

of the “uniqueness of the individual case.” Gall v. United States, 128 S.Ct. 586, 598 (2007). Mapp’s

variance argument essentially challenges the substantive reasonableness of his sentence. Regarding

the substantive reasonableness inquiry, we have applied a rebuttable presumption of reasonableness

to sentences falling within the applicable Guidelines range. United States v. Liou, 491 F.3d 334, 337

(6th Cir. 2007).




                                                  4
       Mapp’s sentence was reasonable and the district court did not err by refusing to grant a

downward variance. He received a harsher sentence than his co-defendants because he had a higher

CHC. Jacqueline West, who Mapp claims masterminded the scheme, was sentenced to 12 months

plus one day of imprisonment, three years of supervised release, and $101,689.93 in restitution.

Gwen Mapp received five months’ imprisonment, three years of supervised release, and $101,689.93

in restitution. Melvin West, who cashed one check for $371, received a sentence of one day in

custody, three years of supervised release, and $371 in restitution. Jacqueline West had a CHC of

I and Gwen Mapp had a CHC of III. Melvin West cashed one check for $371 while Mapp cashed

one check for $35,042.47, causing Key Bank a much greater loss. The district court properly

discussed and considered the § 3553(a) factors and the advisory nature of the Guidelines.

Refusal to Grant a Reduction for Minor Role in the Offense

       Mapp argues that the district court erred by failing to reduce his offense level based on his

allegedly minor role in the offense. However, he failed to raise this argument before the district

court. Therefore, it is waived. Union Planters Nat’l Bank of Memphis v. Commercial Credit Bus.

Loans, 651 F.2d 1174, 1187 (6th Cir. 1981) (“It is axiomatic that an issue not presented to the trial

court cannot be raised for the first time on appeal”).

       AFFIRMED.




                                                  5
