                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0218n.06

                                        Case No. 18-5354

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                  FILED
UNITED STATES OF AMERICA,                           )                        Apr 26, 2019
                                                    )                   DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                          )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE EASTERN DISTRICT OF
BENJAMEN B. NESBITT,                                )       KENTUCKY
                                                    )
       Defendant-Appellant.                         )
                                                    )

BEFORE: SUHRHEINRICH, BUSH, and READLER, Circuit Judges.

       JOHN K. BUSH, Circuit Judge. Benjamen Nesbitt pled guilty to being a felon in

possession of a firearm. The district court sentenced him to 81 months of incarceration, within his

United States Sentencing Guidelines range, and imposed a fine of $3,600, well below the

Guidelines’ recommendation. Nesbitt now argues that the district court erred by not departing

downward below the Guidelines recommendation for his incarceration and by imposing a fine

without considering all of the pertinent factors. For the reasons that follow, we AFFIRM both

aspects of Nesbitt’s sentence.

                                      I. BACKGROUND

       In 2016, during a routine traffic stop, Nesbitt was found in possession of a stolen semi-

automatic handgun. Aside from the fact that the gun was stolen, Nesbitt is a prior felon and is not

permitted to possess firearms. Subsequently, on August 3, 2017, Nesbitt was indicted for being a
Case No. 18-5354, United States v. Nesbitt


felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). This crime carries a

maximum penalty of ten years’ imprisonment and a fine of no more than $250,000. See 18 U.S.C.

§ 924(a)(2); 18 U.S.C. § 3571(b)(3). On December 6, 2017, Nesbitt pled guilty to this charge.

       After Nesbitt’s guilty plea the United States Probation Office prepared a Presentence

Investigation Report (“PSR”). The PSR assessed Nesbitt a base offense level of 24 based on his

two prior convictions, then increased his offense level by 2 because the firearm was stolen and

decreased it by 3 to denote that Nesbitt accepted responsibility for his actions, for a final offense

level of 23. Additionally, the PSR calculated that Nesbitt had a criminal history category of IV.

Based on these calculations, the Guidelines recommended a sentence of 70 to 87 months and a fine

of $20,000 to $200,000.

       Prior to his sentencing, Nesbitt filed a Sentencing Memorandum, objected to the PSR, and

moved for a downward departure from the Guidelines. Nesbitt objected to the PSR and requested

a downward departure because both his Guidelines range and his criminal history category

incorporated his two prior convictions, which he argued created a “double-enhancing effect of

increasing both the offense level and the criminal history category resulting in a sentence that is

greater than necessary to achieve the goals and mandates of the Sentencing Guidelines.” R. 52,

PageID 133. By written orders and without a hearing, the district court rejected Nesbitt’s

objections to the PSR and his motion for a downward departure. The court specifically noted that

“the guidelines expressly provide that ‘[p]rior felony conviction(s) resulting in an increased base

offense level under subsection (a)(2) . . . are also counted for purposes of determining criminal

history points pursuant to Chapter Four, Part A (Criminal History).’” R. 56, PageID 147 (quoting

U.S.S.G. § 2K2.1 cmt. 10).




                                                     2
Case No. 18-5354, United States v. Nesbitt


       On March 30, 2018, the district court sentenced Nesbitt. At the sentencing hearing, the

court noted Nesbitt’s prior objections, but did not reexamine them. Nesbitt’s counsel addressed

the relevant factors under 18 U.S.C. § 3553(a) and asked the court to consider Nesbitt’s relative

youth (he was only 18 years old at the time of his first conviction) and the fact that Nesbitt had

grown up without a positive male role model in his life. Nesbitt’s counsel also requested

community service in lieu of a fine. He argued that community service would be more appropriate

and would not “tak[e] money out of Mr. Nesbitt’s children’s mouths.” Appellant Br. at 9.

       Based on the positive elements brought forth at the sentencing hearing, the court gave

Nesbitt a “six-month discount.” R. 79, PageID 297. The court sentenced Nesbitt to 81 months’

incarceration. Id. at 300. On the issue of the fine, the court determined that community service

would not be appropriate but departed downward from the recommended range of $20,000 to

$200,000, imposing a fine of $3,600 instead. According to the court, this fine would have both

punitive and deterrent effects on Nesbitt, while allowing him to avoid community service, which

might “put [him] in a situation where [he] will be exposed to people that might tempt [him] to do

things that [he] wouldn’t otherwise want to do.” Id. at PageID 297–98. Additionally, the court

stated that the modest amount of the fine would not place an inequitable burden upon Nesbitt or

his family and reflected his earning potential. Id. at PageID 298–99. The court also sentenced

Nesbitt to three years of supervised release following his incarceration. Id. at PageID 301.

       Nesbitt timely appealed his sentence to this court. On appeal, he argues that his sentence

was procedurally and substantively unreasonable. He argues that the district court committed two

errors: 1) in denying his motion for a downward departure, the court did not give him a proper

opportunity to present evidence before the court issued a written memorandum which disposed of

the motion, and 2) the court, in imposing a fine, did not consider all of the relevant factors.


                                                      3
Case No. 18-5354, United States v. Nesbitt


                                           II. DISCUSSION

                              A. Failure to Grant a Downward Departure

       Nesbitt appeals the district court’s failure to grant a downward departure from his

Guidelines range. However, such an appeal is not reviewable except in unique circumstances:

               Generally, a court’s failure to exercise its discretion and grant a downward
       departure is not reviewable. An appellate court may only review a denial of a
       motion for a downward departure if 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. Clark, 385 F.3d 609, 623 (6th Cir. 2004) (alteration in original) (internal citations

and quotation marks removed) (quoting United States v. Coleman, 188 F.3d 354, 357 (6th Cir.

1999)). Thus, only if the judge did not understand that she or he could grant a downward departure

will we review her or his failure to do so. Even if the judge’s decision not to grant a downward

departure was based on “clearly erroneous findings of fact[,] . . . the district court’s failure to

depart downward still would not be appealable . . . .” Id. (quoting United States v. Watkins, 179

F.3d 489, 501 (6th Cir. 1999)).

       We review de novo the issue of whether the district court judge was aware of her or his

authority to depart from the Guidelines, but we presume, “absent clear evidence in the record to

the contrary” that the district court judge did understand the nature of her or his discretion and

authority to grant the departure motion. Id. (quoting United States v. Crouch, 288 F.3d 907, 910

(6th Cir. 2002)). Here, Nesbitt has not even raised this issue. Further, the trial court record does

not present any evidence that would support such an assertion even if Nesbitt had made it.

Therefore, we reject Nesbitt’s appeal of this issue.




                                                       4
Case No. 18-5354, United States v. Nesbitt


                         B. Failure to Consider Relevant Factors in Imposing a Fine

         Nesbitt also argues that the district court failed to consider relevant factors in imposing a

fine. According to Nesbitt, the district court pre-judged the issue of the fine and did not consider

Nesbitt’s “financial resources or his ability to pay” nor “the impact that any fine might have on

Mr. Nesbitt’s dependents.” Appellant Br. at 22. Additionally, “the district court did not address

how Mr. Nesbitt was to pay the fine while he was being incarcerated in the federal system for

almost seven years,” and while he faced the possibility of further incarceration for state charges.

Id. Nesbitt argues that, together, these failures to consider “all the pertinent factors outlined in

USSG 5E1.2(d) and 18 U.S.C. §§ 3571 and 3572” make the sentence procedurally unreasonable

and subject to remand for new sentencing.1 Id. at 23.

         A sentence is procedurally unreasonable if the district court “fail[ed] to calculate (or

improperly calculat[ed]) the Guidelines Range, treat[ed] the Guidelines as mandatory, fail[ed] to

consider the [18 U.S.C.] § 3553(a) factors, select[ed] a sentence based on clearly erroneous facts,

or fail[ed] to adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51

(2007). To properly “explain the chosen sentence” the district court “must ‘set forth enough to

satisfy the appellate court that [it] has considered the parties’ arguments and has a reasoned basis

for exercising [its] own legal decisionmaking authority.’” United States v. Klups, 514 F.3d 532,

537 (6th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)). Thus, Nesbitt can

prevail if he can show that the district court did not consider his arguments or did not have a

reasoned basis for rejecting them.



1
 As the government correctly notes in its appellate brief, Nesbitt’s statement of the issue does not match his argument.
Nesbitt asserts that the issue is “[w]hether the sentenced imposed is substantively and procedurally unreasonable,”
Appellant Br. at 3, but nowhere in his argument does Nesbitt allege substantive unreasonableness; instead he makes
arguments related only to the procedural reasonableness of the sentence, id. at 13–24. Therefore, for purposes of this
appeal, we will examine only the procedural aspects of Nesbitt’s sentence.

                                                               5
Case No. 18-5354, United States v. Nesbitt


       There is disagreement between the parties over the appropriate standard of review that this

court should employ. According to Nesbitt, the sentence is subject to review under an abuse of

discretion standard. The government, however, argues that because Nesbitt “failed to assert any

errors upon the district court’s invitation” the sentence is subject only to plain error analysis.

Appellee Br. at 5; see United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en banc)

(“A party who neglects to make an objection, even after being given ‘an opportunity’ to do so,

forfeits the argument and may obtain relief on appeal only if the error is ‘plain’ and ‘affects

substantial rights.’” (quoting Fed. R. Crim. P. 52(b))).

       At the sentencing hearing, Judge Reeves asked if Nesbitt had any additional objections he

wished to make. However, Judge Reeves also stated that “the objections that were raised and that

were addressed previously by the Court in written opinion have been properly preserved, but the

record will note that you continue to object for those reasons that I’ve stated.” R. 79, PageID 306.

And in declining to raise new objections, Nesbitt’s counsel specifically noted that Nesbitt wished

to preserve those previous objections: “I will say on behalf of myself and on behalf of the defendant

other than what you have indicated has been preserved, I have no other objections, nor ask for

additional findings.” Id. at PageID 307. Thus, Nesbitt’s prior objections were all preserved.

However, Nesbitt did not object, at any point, either via a written motion or orally at sentencing,

to the judge’s purported failure to consider all of the relevant factors in imposing a fine. Therefore,

we will examine the issue of Nesbitt’s fine under plain error review.

       To succeed, Nesbitt “must show an error that is plain, that affects his substantial rights, and

that seriously affects the fairness or integrity of the proceedings.” United States v. Bradley, 897

F.3d 779, 783 (6th Cir. 2018). To show that his substantial rights were affected, Nesbitt must

show prejudice. “The prejudice in an adequacy-of-explanation challenge comes from the inference


                                                      6
Case No. 18-5354, United States v. Nesbitt


that the district court would have reached a different sentence if it had reasoned properly.” United

States v. Gabbard, 586 F.3d 1046, 1051 (6th Cir. 2009). In other words, Nesbitt must show that

any error actually affected his sentence; “the district court’s mere failure to fully explain the extent

of its consideration of sentencing factors, which it had in fact fully considered, could not [be]

viewed . . . as plain error so affecting [Nesbitt's] substantial rights and impugning the fairness of

the proceeding that appellate correction would [be] warranted.” United States v. Houston,

529 F.3d 743, 751 (6th Cir. 2008).

        Here, the error of which Nesbitt complains is a purported failure to “consider all the

pertinent factors outlined in USSG 5E1.2(d) and 18 U.S.C. §§ 3571 and 3572.” Appellant Br. at

23. Specifically, Nesbitt contends that “[w]hile the district court considered the punishment,

deterrence, and respect for the law factors in announcing the fine, it failed to take into consideration

Mr. Nesbitt’s ability to pay or the ramifications that the fine might have on his dependents.” Id.

at 21. It is true, as Nesbitt notes, that in imposing a fine upon a criminal defendant, a court must

consider not only the factors laid out by 18 U.S.C. 3553(a), “but also the fine-specific factors set

forth in 18 U.S.C. §§ 3571 and 3572, and U.S.S.G. § 5E1.2(d).” United States v. Zakharia, 418 F.

App’x 414, 424 (6th Cir. 2011). It is equally true that the district court is required to consider “the

defendant’s income, earning capacity and financial resources” as well as “the burden that the fine

will impose upon the defendant [and] any person who is financially dependent on the defendant . . .

relative to the burden that alternative punishments would impose.” 18 U.S.C. §3572(a)(1)–(2).

        If, in imposing the fine upon Nesbitt, the district court did not consider these factors, then

the fine would be procedurally unreasonable and we would be required to grant Nesbitt’s appeal.

Nesbitt contends that the district court pre-judged the matter of the fine, and that the court did not

“take into account Mr. Nesbitt’s financial resources or his ability to pay.” Appellant Br. at 22.


                                                       7
Case No. 18-5354, United States v. Nesbitt


Nesbitt also argues that the district court “failed to mention the impact that any fine might have on

Mr. Nesbitt’s dependents.” Id. These assertions are flatly contradicted by the record. First, Judge

Reeves specifically stated that “I have thought about the issue of whether a fine would be

appropriate or whether community service would be appropriate.” R. 79, PageID 297–98. This

shows that the district court did not pre-judge the issue of the fine. Additionally, Judge Reeves

stated that he had “look[ed] at the other factors, including the burden it would place on the

defendant, including members of his family, and his earning capacity.” Id. at PageID 299. In fact,

looking at these factors was what led Judge Reeves to impose a fine below Nesbitt’s Guidelines

range: “[w]hile I don’t believe this defendant can pay a fine within the range, I do believe he’s

able to pay a modest fine in the amount of $3,600, and that will be imposed.” Id. at PageID 304.

Judge Reeves also deferred the payment of the fine until after Nesbitt’s term of incarceration is

complete, allowed Nesbitt to pay the fine in monthly installments, and waived any requirement for

Nesbitt to pay interest on his debt. Because it is obvious from the record that the district court

considered the required factors before imposing the fine, Nesbitt cannot show any error, and

certainly cannot show prejudice.

                                       III. CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s sentence.




                                                     8
