                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0760n.06

                                           No. 11-5369

                           UNITED STATES COURT OF APPEALS                                  FILED
                                FOR THE SIXTH CIRCUIT
                                                                                       Jul 13, 2012
UNITED STATES OF AMERICA,                            )                          LEONARD GREEN, Clerk
                                                     )
       Plaintiff-Appellee,                           )
                                                     )       ON APPEAL FROM THE
v.                                                   )       UNITED STATES DISTRICT
                                                     )       COURT FOR THE EASTERN
SAMUEL M. ASHBY, MD,                                 )       DISTRICT OF TENNESSEE
                                                     )
       Defendant-Appellant.                          )
                                                     )




       BEFORE: SILER and KETHLEDGE, Circuit Judges; MURPHY, District Judge.*


       PER CURIAM. Samuel M. Ashby appeals the 108-month sentence imposed upon his guilty

plea to charges of distribution of oxycodone, health care fraud, and income tax evasion.

       Ashby, who was a licensed physician, wrote prescriptions for pain medication to people he

had not examined in exchange for cash that he did not report as income for tax purposes. His

customers claimed insurance benefits for the prescriptions they had filled. The guidelines sentencing

range was calculated at 108 to 135 months. Ashby did not object to the guidelines sentence

calculation, but moved for a variance. He argued that he could not repeat his crimes because he had

lost his medical license, and that a sentence within the guidelines range would be too severe

considering his age, 62.




       *
       The Honorable Stephen J. Murphy III, United States District Judge for the Eastern District
of Michigan, sitting by designation.
No. 11-5369
United States v. Ashby

       At the sentencing hearing, Ashby repeated the arguments raised in his motion, but the district

court found no persuasive reason to grant a downward variance. Ashby was sentenced at the bottom

of the guidelines range.

       Ashby challenges his sentence on appeal, arguing that the district court erred in presuming

that a guidelines sentence would be reasonable, and in failing to consider that his age rendered the

sentence greater than necessary. We review a criminal sentence under an abuse-of-discretion

standard. Gall v. United States, 552 U.S. 38, 51 (2007).

       Ashby cites Nelson v. United States, 555 U.S. 350 (2009) (per curiam), as authority for the

proposition that the district court may not presume a guidelines sentence is reasonable. The instant

case is distinguishable from Nelson, however, because the sentencing judge here never stated that

it presumed a guidelines sentence was reasonable. There is nothing wrong with using the guidelines

sentence as a benchmark if the court finds no persuasive reason to grant a variance. See United

States v. Davila-Gonzalez, 595 F.3d 42, 47-8 (1st Cir. 2010). Here, the district court stated that a

guidelines sentence was necessary to reflect the seriousness of the offense, promote respect for the

law, and deter others from similar criminal conduct.

       Ashby argues that the district court should have considered his age and the fact that

recidivism was unlikely, pointing to United States v. Carter, 538 F.3d 784, 791-92 (7th Cir. 2008).

The district court was within its discretion in determining that the factors upon which it explicitly

based the sentence were more important than the apparently unlikely chance of recidivism in this

case. The court indicated that it had considered Ashby’s age and health, and recommended that he

be housed in a medical facility. The fact that Ashby desired a more lenient sentence is insufficient




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No. 11-5369
United States v. Ashby

to disturb the reasoned judgment of the district court. See United States v. Trejo-Martinez, 481 F.3d

409, 413-14 (6th Cir. 2007).

       Accordingly, the district court’s judgment is affirmed.




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