                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0143n.06

                                                 No. 08-6201                                         FILED
                                                                                                 Mar 08, 2010
                              UNITED STATES COURT OF APPEALS                              LEONARD GREEN, Clerk
                                   FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                       )
                                                                )          ON APPEAL FROM THE
        Plaintiff-Appellee,                                     )          UNITED STATES DISTRICT
                                                                )          COURT FOR THE EASTERN
v.                                                              )          DISTRICT OF TENNESSEE
                                                                )
LADARRYL T. HEMPHILL,                                           )
                                                                )                    OPINION
        Defendant-Appellant.                                    )


BEFORE: BOGGS and NORRIS, Circuit Judges; ADAMS, District Judge.*

        JOHN R. ADAMS, District Judge. Defendant Ladarryl T. Hemphill appeals from his

sentence of 262 months’ incarceration. We AFFIRM.

        Hemphill was indicted on one count of possession with intent to distribute more than five

grams of crack cocaine. On April 9, 2008, Hemphill pleaded guilty to the indictment. Based upon

his prior convictions, Hemphill was found to be a career offender. As a result, the guideline range

for Hemphill’s conviction was 262 to 327 months. Following a hearing, Hemphill was sentenced

to 262 months. Hemphill timely appealed, challenging the substantive reasonableness of his

sentence.

        This court reviews the district court’s sentencing determination for procedural and

substantive reasonableness. See Gall v. United States, 552 U.S. 38, 51 (2007); United States v.



        *
          The Honorable John R. Adams, United States District Judge for the Northern District of Ohio, sitting by
designation.
No. 08-6201
United States v. Hemphill

Thomas, 498 F.3d 336, 339 (6th Cir. 2007). We “first ensure that the district court committed no

significant procedural error, such as ... failing to consider the § 3553(a) factors ... or failing to

adequately explain the chosen sentence[.]” Gall, 552 U.S. at 51. Moreover, sentences that are

properly calculated and within the applicable Guidelines range are presumptively reasonable. United

States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006). Hemphill does not challenge the procedural

reasonableness of his sentence.

       Accordingly, we turn to the issue of substantive reasonableness, bearing in mind that

Hemphill’s sentence is presumptively reasonable. “A sentence may be considered substantively

unreasonable when the district court ‘select[s] the sentence arbitrarily, bas[es] the sentence on

impermissible factors, fail[s] to consider pertinent § 3553(a) factors or giv[es] an unreasonable

amount of weight to any pertinent factor.’ ” United States v. Collington, 461 F.3d 805, 808 (6th Cir.

2006) (quoting United States v. Webb, 403 F.3d 373, 385 (6th Cir. 2005)) (alterations in original).

       Hemphill’s sole argument on appeal is that the district court “gave too much weight to the

Guidelines and too little weight” to the statutory factors. This argument, however, is not supported

by the record.

       When the district court pronounced Hemphill’s sentence, it noted that the Guidelines were

only advisory. Furthermore, the only argument offered by Hemphill for a below-Guidelines sentence

involved the fact that Hemphill needed money for an apartment. Specifically, Hemphill asserted that

his probation officer had denied him the opportunity to get a second job and that he needed money

to secure his apartment, furniture, and food. This Court has previously found that such an excuse

is insufficient to warrant a downward variance. United States v. Vonner, 516 F.3d 382, 390 (6th Cir.

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No. 08-6201
United States v. Hemphill

2008) (“That Vonner sought to justify his drug dealing on the ground that he had no other means of

earning a living after being released from jail does not show that the trial court abused its

discretion[.]”).

        Furthermore, the district court adequately explained why a within-Guidelines sentence was

appropriate. When it issued Hemphill’s sentence, the district court noted that he had a lengthy

criminal history with convictions in both federal and state court. The district court also explained

that Hemphill had violated his supervised release on numerous occasions. For that matter,

Hemphill’s own sentencing memorandum indicated that he began selling crack cocaine a mere three

weeks after being placed on probation for his last state court conviction. The district court concluded

its statements by noting that “[t]he defendant has been afforded second and third chances to get

himself straightened out and chose to break the law again.”

        This Court reaches a conclusion similar to that reached in Vonner:

        The record and the context of the sentencing hearing offer ample reasons for
        concluding that [Hemphill’s] case was a “typical” one and therefore deserving of a
        within-guidelines sentence, and that his criminal history and his decision to violate
        serious criminal laws soon after [being placed on probation] outweighed his
        arguments in favor of leniency. “[W]e simply cannot say that [Hemphill’s] special
        circumstances are special enough that, in light of § 3553(a), they require a sentence
        lower than the sentence the Guidelines provide.”

Vonner, 516 F.2d at 390 (citations omitted, emphasis and third modification in original). In fact,

unlike the defendant in Vonner, Hemphill has presented no special circumstances that would warrant

a finding that a below-Guidelines sentence was required. Hemphill, therefore, has failed to rebut the

presumption of reasonableness attached to his sentence. The judgment of the district court is

AFFIRMED.

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