               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 19a0363n.06

                                          No. 18-5772                                 FILED
                                                                                 Jul 15, 2019
                         UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                        )
                                                 )
        Plaintiff–Appellee,                      )        ON APPEAL FROM THE
                                                 )        UNITED STATES DISTRICT
v.                                               )        COURT FOR THE EASTERN
                                                 )        DISTRICT OF KENTUCKY
GEORGE VAUGHN,                                   )
                                                 )
                                                                  OPINION
        Defendant–Appellant.                     )
                                                 )


Before: MOORE, KETHLEDGE, and MURPHY, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. George Vaughn, a convicted felon, was

caught on a motorcycle with a firearm. He pleaded guilty to a one-count indictment that charged

a violation of the statute banning felons from possessing firearms, 18 U.S.C. § 922(g)(1), but he

objected to the application of a sentencing enhancement for possessing a firearm in connection

with another felony, U.S. SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 2K2.1(b)(6)(B)

(2016). Vaughn threw a can containing methamphetamine and drug packaging paraphernalia from

his motorcycle before he was arrested. He argues that the enhancement cannot apply because the

drugs were not found in close proximity to the firearm. We reject his arguments and AFFIRM.

                                     I. BACKGROUND

       On May 31, 2017, officers of the Mercer County Sheriff’s Office saw a stolen vehicle in

the driveway of Heather King’s house and a motorcycle approaching the house with Ms. King on

the back. Presentencing Report (PSR) at 3, ¶ 2 (Page ID #76). Vaughn was driving the motorcycle.
No. 18-5772, United States v. Vaughn


Id. Although the officers asked him to stop, he continued driving after indicating to the officers

that he had to turn around in order to enter the driveway. Id. Vaughn drove the motorcycle over

a hill and out of the officers’ sight. Id. at ¶¶ 2-3.

        The officers caught up to Vaughn 150 yards away, where they found him heading back

toward King’s house. Id. at ¶ 3. After the stop, King told the officers that there was a gun in the

backpack that was hanging from the back of the motorcycle; Vaughn, unprompted, told the officers

that he bought the firearm for King. Id. The officers arrested Vaughn, given his status as a

convicted felon. Id.

        Upon questioning by the officers, King revealed that Vaughn drove past the officers to

dispose of drugs and that he threw a small can off the motorcycle before the officers caught up to

them. Id. at ¶ 4. King took the officers to the can, which contained three bags of methamphetamine

weighing a total of three grams, “25 small baggies, pills, three syringes and a digital scale.” Id.

        Vaughn pleaded guilty to a one-count indictment that charged a violation of 18 U.S.C.

§ 922(g)(1), for possessing a firearm after having been convicted of a felony. R. 22 (Minute

Entry); R. 29 (Judgment at 1) (Page ID #57). He admitted that he possessed the firearm found on

the motorcycle but objected to the proposed four-level sentencing enhancement for possessing a

firearm in connection with another felony offense. PSR at 21.

        At sentencing, Vaughn denied that the drugs were his but did not address whether he threw

the drugs from the motorcycle. R. 35 (Sentencing Tr. at 6, 8–9) (Page ID #107, 109–10). He

argued that the enhancement was inapplicable because the drugs were not found near the gun. Id.

at 6. The district court overruled Vaughn’s objection and applied the enhancement, resulting in a


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Guidelines range of 41 to 51 months of imprisonment. Id. Vaughn’s counsel then argued for

leniency because of Vaughn’s age, health problems, and never-treated drug addictions. Id. at 7–8

(Page ID #108–09). The district court sentenced Vaughn to 41 months of incarceration with a

recommendation that he participate in a substance-abuse treatment program, obtain his GED, and

receive vocational training. Id. at 11–13 (Page ID #112–14). Vaughn now appeals.

                                        II. ANALYSIS

       Vaughn challenges his sentence on three grounds. First, he argues that the district court

erred in applying the enhancement for possessing a firearm in connection with another felony

offense, U.S.S.G. § 2K2.1(b)(6)(B).     Second, he argues that his sentence was procedurally

unreasonable because the district court did not consider the 18 U.S.C. § 3553(a) factors. Finally,

he argues that his sentence was substantively unreasonable. All of Vaughn’s arguments fail.

A. The Sentencing Enhancement

       We begin with the sentencing enhancement.         We review the district court’s factual

determinations for clear error. See United States v. Susany, 893 F.3d 364, 366–67 (6th Cir. 2018).

Because the Guidelines provision at issue is the § 2K2.1(b)(6)(B) firearm enhancement, we do not

apply our usual de novo standard of review to the district court’s legal conclusions. Rather, we

“accord due deference to the district court’s determination that the firearm was used or possessed

in connection with the other felony.” United States v. Shanklin, 924 F.3d 905, 919 (6th Cir. 2019)

(quoting United States v. Seymour, 739 F.3d 923, 929 (6th Cir. 2014)).

       The district court applied a four-level sentencing enhancement for possessing a firearm in

connection with another felony. R. 35 (Sentencing Tr. at 6) (Page ID #107). The other felony in


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Vaughn’s case was drug trafficking, which, although uncharged, was evidenced by the drug

packaging paraphernalia—a digital scale and 25 small baggies—found with the three bags of

methamphetamine weighing three grams. PSR at 3, ¶ 4. The Guidelines commentary says that,

“in the case of a drug trafficking offense,” the enhancement applies when “a firearm is found in

close proximity to drugs, drug-manufacturing materials, or drug paraphernalia” because “the

presence of the firearm has the potential of facilitating” the drug trafficking. U.S.S.G. § 2K2.1

cmt. n.14(B).

       Vaughn argues that the district court erred in applying the enhancement to him because the

firearm was found over 150 yards from the drugs. Appellant Br. at 13. The district court correctly

applied the enhancement because the firearm and drugs “were in the same proximity until [the

drugs] were thrown off the motorcycle.” R. 35 (Sentencing Tr. at 6) (Page ID #107). Vaughn

pleaded guilty to possession of the gun and did not dispute that he threw the drugs from the

motorcycle. He denied possession of the drugs at the sentencing hearing, but he does not argue on

appeal that the district court erred by implicitly finding that the drugs were his. His sole argument

on appeal as to the enhancement is that it was inapplicable because of the distance between the

firearm and the drugs, and the district court did not err in rejecting that argument. The district

court’s application of the four-level enhancement was proper, and its calculation of the Guidelines

range was correct.

B. Procedural Reasonableness

       Vaughn next argues that his sentence was procedurally unreasonable because the district

court failed to consider the factors listed in 18 U.S.C. § 3553(a). A sentence is procedurally


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No. 18-5772, United States v. Vaughn


unreasonable if a district court “fail[s] to consider the § 3553(a) factors.” Gall v. United States,

552 U.S. 38, 51 (2007). The district court must address the parties’ arguments in a manner

sufficient to “satisfy the appellate court that [the sentencing judge] has considered [those]

arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita

v. United States, 551 U.S. 338, 356 (2007); see also United States v. Gapinski, 561 F.3d 467, 474

(6th Cir. 2009) (the sentencing court must address “nonfrivolous” arguments raised by the parties).

We do not require a district court to engage in a “ritual incantation” of the § 3553(a) factors,

however. United States v. Williams, 436 F.3d 706, 708–09 (6th Cir. 2006) (quoting United States

v. Johnson, 403 F.3d 813, 816 (6th Cir. 2005)). Rather, we require only that “the district court

articulate[] its reasoning sufficiently to permit reasonable appellate review.” Id. at 709. The

district court did so here.

        Aside from objecting to the four-level enhancement, the sole sentencing argument

presented to the district court by Vaughn was the argument that Vaughn’s age, health problems,

and addictions called for leniency. R. 35 (Sentencing Tr. at 7–8) (Page ID #108–09). Although

the district court did not explicitly say that it sentenced Vaughn at the bottom of the Guidelines

range because of those arguments, it is clear that it considered those arguments in formulating

Vaughn’s sentence. It sentenced Vaughn to the lowest possible Guidelines sentence, indicating it

considered his age and health.      Id. at 11 (Page ID #112).      In addition, the district court

recommended a drug treatment program and education and vocational training, and it impressed

upon Vaughn the importance of pursuing those opportunities; it clearly heard and was influenced

by Vaughn’s argument about his untreated addictions. Id. at 11–13 (Page ID #112–14). On the


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other hand, the district court considered Vaughn’s criminal history. It asked Vaughn numerous

questions about the circumstances of a prior kidnapping conviction that involved a knife. Id. at 9–

11 (Page ID #110–12). It is clear that the district court weighed Vaughn’s arguments for leniency

against the needs of the community for protection and deterrence. The district court was not

required to recite each § 3553(a) factor before imposing a sentence. There was no procedural

error.

C. Substantive Reasonableness

         Finally, Vaughn argues that his sentence was substantively unreasonable. A substantively

unreasonable sentence “is ‘greater than necessary’ to achieve the sentencing goals set forth in 18

U.S.C. § 3553(a).” United States v. Tristan-Madrigal, 601 F.3d 629, 632–33 (6th Cir. 2010). An

unreasonable sentence might occur if “the district court selects the sentence arbitrarily, bases the

sentence on impermissible factors, fails to consider pertinent § 3553(a) factors or gives an

unreasonable amount of weight to any pertinent factor.” Id. at 633 (quoting United States v. Walls,

546 F.3d 728, 736 (6th Cir. 2008)). We review substantive reasonableness challenges for abuse

of discretion and presume a within-Guidelines sentence to be reasonable. United States v. Roberts,

919 F.3d 980, 992 (6th Cir. 2019); United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en

banc).

         Vaughn cannot clear the high hurdle of showing that it was an abuse of discretion for the

district court to impose a 41-month sentence, the lowest possible sentence within the applicable

Guidelines range. He argues that “no one was injured and a gun was found 150 yards apart from

a minimal amount of narcotics,” Appellant Br. at 21, but ignores his attempt to discard evidence


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of drug trafficking and his long and occasionally violent criminal history. The district court

considered appropriate factors and did not give an unreasonable amount of weight to any one

factor. Vaughn’s substantive reasonableness challenge fails.

                                     III. CONCLUSION

       For the reasons stated above, we AFFIRM.




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