              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 06a0656n.06
                          Filed: August 29, 2006

                                         No. 05-3628

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                  )
                                           )
       Plaintiff/Appellee,                 )
                                           )        ON APPEAL FROM THE UNITED
v.                                         )        STATES DISTRICT COURT FOR THE
                                           )        NORTHERN DISTRICT OF OHIO
PAUL VILLA-GOMEZ,                          )
                                           )
       Defendant/Appellant.                )


Before:       MARTIN and SUTTON, Circuit Judges; JORDAN, District Judge.*

              LEON JORDAN, District Judge. This appeal arises from the sentencing of

Paul Villa-Gomez as a career offender for the offense of unarmed bank robbery, 18 U.S.C.

§ 2113(a). For the reasons that follow, we AFFIRM the district court.



                                               I.

              On May 6, 2004, Villa-Gomez entered the Key Bank in Toledo, Ohio, and after

approaching one of the tellers, he handed her a bag and said, “fill it; no packages.” The teller

complied by placing money but no dye pack in the bag. Villa-Gomez fled on foot but was



       *
       The Honorable R. Leon Jordan, United States District Judge for the Eastern District
of Tennessee, sitting by designation.
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No. 05-3628
Page 2

shortly thereafter observed by a police officer who had heard his description. Villa-Gomez

attempted to flee, but after a foot chase, he was apprehended and taken to the bank where he

was identified by two tellers as the robber. Authorities recovered $717.00 in U.S. currency

from Villa-Gomez who was found to be unarmed.

              On June 2, 2004, Villa-Gomez was indicted on charges of unarmed bank

robbery in violation of 18 U.S.C. § 2113(a). After his arrest, Villa-Gomez underwent a

psychiatric evaluation by the Court Diagnostic and Treatment Center to determine his

competency to stand trial. He was diagnosed with a severe personality disorder but was

determined to be competent to stand trial. In 1992, Villa-Gomez had been diagnosed with

“Severe Personality Disorder Marked by Anti-Social, Paranoid, Schizoid, and Schizotypal

Features.” At that time, he was not placed on medication, but it was thought psychotherapy

might be helpful.

              After Villa-Gomez filed a notice of intent to assert a defense of insanity, the

government moved for a psychiatric exam. The motion was granted, and Villa-Gomez

underwent a psychiatric examination by the Bureau of Prisons. He was again diagnosed with

Schizotypal Personality Disorder but was found competent to stand trial. Villa-Gomez did

not present significant mental illness that required intervention, and he was not placed on

medication.



              The presentence report gave Villa-Gomez a base offense level of 20 with a 2-
U.S.A. v. Villa-Gomez
No. 05-3628
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level upward adjustment because he took money from a financial institution. U.S.S.G.

§2B3.1(b)(1). Villa-Gomez was given a 3-level downward adjustment for acceptance of

responsibility. U.S.S.G. § 3E1.1(a), (b). That adjustment would have put his offense level

at 19. However, Villa-Gomez was determined to be a “career offender” within the meaning

of § 4B1.1 of the Sentencing Guidelines because he had three separate, prior burglary

convictions, his current offense was for bank robbery and he was at least 18 years of age at

the time of that offense. That determination increased his offense level to 32, and with a 3-

level adjustment for acceptance of responsibility, his total offense level was 29. Because

Villa-Gomez was classified as a “career offender,” his Criminal History Category was VI.

U.S.S.G. § 4B1.1.

              Villa-Gomez pled guilty to unarmed bank robbery without a plea agreement.

Prior to sentencing, his trial counsel submitted a letter to the court, the substance of which

was articulated at the sentencing hearing, requesting the court to consider a downward

departure under U.S.S.G. § 5K2.13 based on Villa-Gomez’s history of untreated mental

illness. His counsel asked the court to take into account that no weapon was involved in the

bank robbery and there was no violence or the threat of violence during commission of the

crime. Trial counsel also asked the court to sentence Villa-Gomez just for the crime he

committed, not as a career offender, which would have meant a guideline range of 63 to 78

months rather than 151 to 188 months as a career offender. The district court did not grant

defense counsel’s request and stated:
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No. 05-3628
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                    With respect to the guidelines in this instance, I come
             down exactly the opposite from you. It is clear in this case,
             treating it as an individual case and not as one of many in
             determining a guideline range, that this defendant needs greater,
             not lesser incarceration because of that which his examination,
             psychiatric and psychological examinations, have indicated. He
             has something for which there is no pill. And incarceration will
             prevent him from future crimes; that will protect society and it
             will protect him from harm to himself.
                    I believe that the career offender is a break for him. The
             Government could have charged in the indictment in a way
             which would have required the Court to impose a life sentence.
             They did not.
                    My sense in this case is that the enhancement from 19 –
             from 22 to 32 is correct. I will sentence him as a 32 under the
             guidelines. I will grant him three levels for acceptance of
             responsibility, which is not opposed by the Government, as I
             understand it.

      The district court also commented on unarmed bank robbery by stating:

             But the reason I have been unsympathetic to unarmed robbery
             of a bank or other financial institution is because that very act
             has the propensity to lead to violence. And by that I mean a
             guard, in flight, et cetera. There – there is the propensity for
             violence in the pursuit of the criminal. Ofttimes that leads to
             innocent bystanders being placed at risk.
                     I have felt over the years that such offenses bear close to
             the same responsibility as if one walks into a financial
             institution with a gun in the pocket, flashes the gun, – and then
             commits the offense. It’s that propensity for violence that I
             think is important to understand.


The district court sentenced Villa-Gomez at the lower end of the Guidelines to 152 months

imprisonment and three years of supervised release. This timely appeal followed.
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                                               II.

              Villa-Gomez claims that certain aspects of his sentence were contrary to United

States v. Booker, 543 U.S. 220 (2005) and in violation of the Sixth Amendment. Because

Villa-Gomez did not raise this challenge in the district court, the review of these issues is for

plain error. United States v. Oliver, 397 F.3d 369 (6th Cir. 2005).

              Plain error is defined as an egregious error, one that directly
              leads to a miscarriage of justice. The “plain error” doctrine is to
              be used sparingly, only in exceptional circumstances and solely
              to avoid a miscarriage of justice. A reviewing court should
              apply the “plain error” doctrine to reverse only if errors were so
              rank that they should have been apparent to the trial judge
              without objection, or that strike at fundamental fairness,
              honesty, or public reputation of the trial.

United States v. Carney, 387 F.3d 436, 453 (6th Cir. 2004) (internal quotation marks and

citations omitted).

              In addition, this court reviews Villa-Gomez’s sentence for reasonableness.

United States v. Christopher, 415 F.3d 590, 594 (6th Cir. 2005). In United States v. Williams,

436 F.3d 706 (6th Cir. 2006), this court joined “several sister circuits in crediting sentences

properly calculated under the Guidelines with a rebuttable presumption of reasonableness.

Such a presumption comports with the Supreme Court’s remedial decision in Booker.” Id.

at 708. After Booker, a district court has the discretion to give a sentence that varies from

the Guidelines.
U.S.A. v. Villa-Gomez
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                                             III.

               Villa-Gomez makes several arguments claiming that the district court engaged

in judicial fact-finding in violation of the principles set forth in Booker. However, these

arguments appear to be based

               upon the legal misconception that Booker held that judge-found
               fact can never be employed during the sentencing process. Such
               a reading of Booker is erroneous. Instead, Booker held that facts
               not admitted by the defendant or proven to a jury beyond a
               reasonable doubt may not be used only where such a fact is
               employed to raise a defendant’s sentence above the maximum
               sentence prescribed by the applicable statutory provision.
               Nonetheless, judge-found fact may be employed to raise or
               lower a sentence provided that sentence remains within the
               range prescribed by the relevant statute. Under Booker, such a
               use of judge-found fact does not violate the Sixth Amendment.

United States v. Vonner, 452 F.3d 560, 564 (6th Cir. 2006). “[T]he advisory Guidelines

regime vests district courts with the discretion to account at sentencing for facts neither

submitted to the jury and proven beyond a reasonable doubt nor admitted to by the

defendant.” United States v. Porter, No. 05-6121, 2006 WL 1478048, at *2 (6th Cir. May 25,

2006) (citing Booker, 543 U.S. at 233 (“[W]hen a trial judge exercises his discretion to select

a specific sentence within a defined range, the defendant has no right to a jury determination

of the facts that the judge deems relevant.”)). The district court’s application of judge-found

fact in this case is consistent with Booker and the Sixth Amendment, and there was no error

by the district court.
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                                      Career Offender

              The district court gave Villa-Gomez an enhancement for being a “career

offender” under U.S.S.G. § 4B1.1(a): he had three prior burglary convictions, the current

offense of unarmed bank robbery is a crime of violence, and he was at least 18 years old at

the time of the current offense. Villa-Gomez argues that the district court determined that

he committed a crime with “a propensity to violence” and therefore attributed to him the

same responsibility as someone who uses a gun during a bank robbery. He concludes that

the district court engaged in fact finding contrary to the tenents of Booker which resulted in

the court sentencing him as if he had committed the robbery with a gun. Therefore, Villa-

Gomez contends that “[the district court] punish[ed] him for violence that never occurred.”

              Villa-Gomez seizes on the district court’s comments            concerning the

“propensity for violence” that is present even with unarmed bank robbery. The government

argues that the term “crime of violence” is defined in the Sentencing Guidelines and includes

robbery, U.S.S.G. § 4B1.1 and Application Note 1 to that section, and this court has found

unarmed robbery to be a “crime of violence,” citing United States v. Maddalena, 893 F.2d

815 (6th Cir. 1989).

              The district court did not sentence Villa-Gomez as an armed bank robber, and

did not give him an enhancement for the use of a firearm. The court’s comments concerning

the propensity for violence in unarmed bank robbery explain why Villa-Gomez was not

entitled to a lower sentence, even though he did not use a gun in the commission of the
U.S.A. v. Villa-Gomez
No. 05-3628
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crime. The district court did not err in determining that unarmed bank robbery is a crime of

violence sufficient to qualify Villa-Gomez as a career offender and in giving him a sentence

enhancement for that classification.



                              Denial of Downward Departure
                              Based on Diminished Capacity

              Villa-Gomez argues that the district court erred in not giving him a downward

departure under Chapter 5 of the Sentencing Guidelines for diminished capacity. He also

contends that the district court enhanced his sentence because of his mental condition.1



              Prior to Booker, “it was well-established in this Circuit that a district court’s

decision to deny a request for a downward departure was not reviewable unless the district

court judge ‘incorrectly believed that [he] lacked any authority to consider defendant’s

mitigating circumstances as well as the discretion to deviate from the guidelines.’” United

States v. Jones, 445 F.3d 865, 868 (6th Cir. 2006) (citing United States v. Clark, 385 F.3d


       1
         Villa-Gomez also argues that he was incorrectly charged with bank robbery under
18 U.S.C. § 2113(a); he contends the lesser charge under 18 U.S.C. § 2113(b) was proper.
However, Villa-Gomez has waived that objection by not raising it at the trial level. Fed. R.
Crim. P. 12(b)(3); United States v. Henderson, No. 05-1546, 2006 WL 890688 (6th Cir. Mar.
30, 2006) (citing United States v. Hayes, 218 F.3d 615, 620 (6th Cir. 2000) (“Rule 12 requires
certain claims and defenses . . . to be raised before trial, and provides that those claims and
defenses are forfeited if they are not timely asserted.”)). More importantly, Villa-Gomez
pled guilty to 18 U.S.C. § 2113(a) and admitted under oath that he committed the acts that
constituted unarmed bank robbery.
U.S.A. v. Villa-Gomez
No. 05-3628
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609, 623 (6th Cir. 2004)).   After Booker, “this Court held that the pre-Booker standard

foreclosing review of a district court’s decision 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’ survived Booker.” Jones, 445 F.3d at 868 (citing United States v. Puckett,

422 F.3d 340, 344-45 (6th Cir. 2005)). However, “Puckett simply precludes our review of

that narrow determination of a denial of a Chapter 5 Guideline departure within the context

of the Guideline calculation. It does not prevent our review of a defendant’s claim that his

sentence is excessive based on the district court’s unreasonable analysis of the section

3553(a) factors in their totality.” United States v. McBride, 434 F.3d 470, 476-77 (6th Cir.

2006).

               There is no indication that the district court was not aware of or did not

understand its discretion to make a downward departure, and there is no basis for this court

to review the district court’s denial of a downward departure in the context of its Guideline

calculation.   The record does reflect that the district court reasonably considered Villa-

Gomez’s mental condition in its analysis of the 3553(a) factors and found that a lesser

sentence was not appropriate based on that mental condition. In its sentencing decision, the

district court noted that greater incarceration was needed because Villa-Gomez’s mental

health problems presented the possibility of recidivism. A longer period of incarceration

would protect both him and society. The district court acted reasonably and within its

discretion in its consideration of Villa-Gomez’s mental condition and in its denial of a
U.S.A. v. Villa-Gomez
No. 05-3628
Page 10

downward departure based on that mental condition.



                                District Court’s Treatment of
                                 the Sentencing Guidelines

              Villa-Gomez also contends that the district court placed too much weight on

the Guidelines and failed to consider them as advisory. The record does not support this

contention. The district court stated:

                      I have considered the guidelines, which are nonbinding
              on the court, and the nature and circumstance, as I said earlier,
              of the offense for which Mr. Villa-Gomez has been charged and
              his criminal history.
                      It is my belief that the sentence imposed, as I just
              articulated it, appropriately reflects the seriousness of the crime.
              It is just punishment. It will protect the public and deter this
              defendant from further criminal conduct, and will, hopefully,
              provide enough time in prison for some rehabilitation and
              hopefully address his personality disorder.



Although “the district court must articulate the reasons for the particular sentence imposed,”

Jones, 445 F.3d at 869, the court does not have to “explicitly reference each of the § 3553(a)

factors in its sentencing determination. However, there must be sufficient evidence in the

record to affirmatively demonstrate the court’s consideration of [these factors].” Id. (internal

quotation marks and citations omitted). In this case, there is no showing that the district

court considered the Guidelines as mandatory or that it impermissibly relied on the

Guidelines.
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               The record reflects that the sentence was properly calculated under the

Guidelines and that the district court appropriately considered the § 3553(a) factors along

with the Guidelines range for a career offender. The district court also recognized and

considered the Guidelines as advisory rather than mandatory. The district court’s sentence

was presumptively reasonable, and Villa-Gomez has not rebutted that presumption of

reasonableness. Williams, 436 F.3d at 708.



                                             IV.

               Villa-Gomez also raises a claim for ineffective assistance of counsel. This

court customarily declines to entertain ineffective assistance of counsel claims on direct

appeal. See, e.g., United States v. Bradley, 400 F.3d 459, 462 (6th Cir. 2005). “The

customary procedure directs the defendant to address charges of ineffective assistance of

counsel in a post-conviction proceeding under 28 U.S.C. § 2255.” United States v. Hill, 30

F.3d 48, 51 (6th Cir. 1994); see also Massaro v. United States, 538 U.S. 500, 504 (2003)

(“The better-reasoned approach is to permit ineffective-assistance claims to be brought in the

first instance in a timely motion in the district court under § 2255.”). The rare exception is

where “the record is adequate to assess the merits of defendant’s allegations.” Bradley, 400

F.3d at 462.

               This case does not present the rare circumstance when this court would

consider such a claim on direct appeal. The record does not contain evidence pertaining to
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No. 05-3628
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the decisions made by Villa-Gomez’s trial counsel regarding the issues he raises here on

appeal. We decline to consider this claim.

             Accordingly, we AFFIRM the sentence imposed by the district court.
