                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0725n.06

                                            No. 09-3714
                                                                                             FILED
                              UNITED STATES COURT OF APPEALS                            Oct 26, 2011
                                   FOR THE SIXTH CIRCUIT
                                                                                 LEONARD GREEN, Clerk
UNITED STATES OF AMERICA,                              )
                                                       )
        Plaintiff-Appellee,                            )
                                                       )       ON APPEAL FROM THE UNITED
v.                                                     )       STATES DISTRICT COURT FOR
                                                       )       THE NORTHERN DISTRICT OF
DAVID F. MAYS,                                         )       OHIO
                                                       )
        Defendant-Appellant.                           )




        Before: NORRIS, SUTTON, and GRIFFIN, Circuit Judges.



        PER CURIAM. David F. Mays appeals the district court’s judgment of conviction and

sentence.

        A jury found Mays guilty of RICO conspiracy, in violation of 18 U.S.C. § 1962(d), and

conspiracy to use or carry a firearm during and in relation to a drug trafficking crime or crime of

violence, in violation of 18 U.S.C. § 924(o). The district court sentenced him to respective prison

terms of 121 and 120 months, to be served consecutively. This court affirmed Mays’s convictions,

but remanded for resentencing. United States v. Mays, 285 F. App’x 269 (6th Cir. 2008). On

remand, the district court determined that Mays’s base offense level was 28 and, after adding four

levels because the victim sustained permanent or life-threatening injuries, that his total offense level

was 32. Based on the total offense level of 32 and a criminal history category of II, the district court

calculated Mays’s guidelines range of imprisonment to be 135 to 168 months. The court varied

upward, however, and sentenced Mays to concurrent prison terms of 192 months.
                                            No. 09-3714
                                                -2-

        On appeal, Mays argues that his sentence was unreasonable in several ways: (1) the district

court improperly applied the four-level enhancement under USSG § 2A2.1(b)(1)(A) for causing

permanent or life-threatening injuries to the victim; (2) the court failed to adequately explain its

conclusion that Mays’s criminal history category underrepresented his true criminal history; (3) the

court failed to adequately explain its rejection of Mays’s argument that he should be given a lesser

sentence based on time that he spent in state prison on related charges; and (4) the court improperly

varied upward from the guidelines and failed to adequately explain its decision to do so.

        We review sentences for both procedural and substantive reasonableness using an abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). To determine whether a sentence

is procedurally reasonable, we must “ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting

a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.”

Id. “For a sentence to be substantively reasonable, it must be proportionate to the seriousness of the

circumstances of the offense and offender, and sufficient but not greater than necessary, to comply

with the purposes of § 3553(a).” United States v. Vowell, 516 F.3d 503, 512 (6th Cir. 2008) (internal

quotation marks omitted); see, e.g., United States v. Woodard, 638 F.3d 506, 510 (6th Cir. 2011)

(“touchstone” for review of above-guidelines sentence is “whether the length of the sentence is

reasonable in light of the § 3553(a) factors” (citation omitted)). “A sentence may be substantively

unreasonable 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.” Vowell, 516 F.3d at 510 (internal quotation marks and alterations omitted).
                                           No. 09-3714
                                               -3-

       The district court did not abuse its discretion in imposing Mays’s sentence. The court

properly applied the four-level enhancement under § 2A2.1(b)(1)(A) in light of the victim’s

testimony “that he suffered four bullet wounds in the left side of his back and two collapsed lungs.”

Mays, 285 F. App’x at 274. The court gave proper consideration to the relevant § 3553(a) factors,

explaining that an upward variance was warranted by “the seriousness of the offense,” the nature of

the criminal behavior in which Mays and “the entire enterprise was engaged,” and the court’s

determination that Mays’s criminal history “underrepresents the threat of recidivism.” Contrary to

Mays’s argument, moreover, the court indicated that it considered his state prison time in fashioning

an appropriate sentence.

       Accordingly, we affirm the district court’s judgment.
