                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 07a0647n.06
                            Filed: September 4, 2007

                                             No. 06-1999

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                       )
                                                )
                Plaintiff-Appellant,            )
                                                )
v.                                              )               ON APPEAL FROM THE UNITED
                                                )               STATES DISTRICT COURT FOR
HAYWOOD MANUEL JOHNSON,                         )               THE EASTERN DISTRICT OF
                                                )               MICHIGAN
                Defendant-Appellee.             )
                                                )


         Before: MARTIN and McKEAGUE, Circuit Judges; and GREER, District Judge.*



                GREER, District Judge. Haywood Manuel Johnson (“Johnson”) pled guilty to a

single count of possession of firearms after having been convicted of a felony, in violation of 18

U.S.C. § 922(g)(1). The applicable United States Sentencing Guidelines called for a sentence of 37

to 46 months of imprisonment. The District Court imposed a sentence of 24 months of probation.

The United States has appealed, arguing that such a large downward variance from the advisory

guidelines range in this case is substantively unreasonable. We agree. The judgment of the District

Court is therefore VACATED and the case REMANDED for resentencing for the reasons set forth

below.



         *
          The Honorable J. Ronnie Greer, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
No. 06-1999
United States v. Johnson


                     FACTUAL AND PROCEDURAL BACKGROUND

               On September 1, 2004, Genesee Township Police went to 2038 Daron Place, Flint,

Michigan, to arrest Johnson on a state murder warrant. Johnson was taken into custody without

incident and he and his wife consented to a search of their residence. Johnson advised the police of

the presence of two firearms under the mattress in his bedroom. Found under the mattress was an

unloaded 9 mm pistol with an obliterated serial number and a loaded 12 gauge, sawed off shotgun.

Neither firearm had been manufactured in the State of Michigan. Johnson had previously been

convicted in the Saginaw Circuit Court of the felony offense of attending an animal fight.

               Johnson was found not guilty of the state murder charge on March 31, 2005, and was

indicted on April 20, 2005, by the federal grand jury on charges based on the firearms found in his

bedroom during the September 1, 2004 search of his residence. Johnson was arrested at his

residence on the federal charges on April 21, 2005, by agents of the Bureau of Alcohol, Tobacco and

Firearms. At the time of his arrest, Johnson was in possession of a loaded .25 caliber pistol, found

in a nightstand next to his bed. He was not charged with possession of the third firearm.

               After Johnson’s guilty plea, a Presentence Report (PSR) was prepared. The PSR

calculated a base offense level of 20 which was enhanced by two levels pursuant to USSG §

2K2.1(b)(1)(A) because three guns were involved and an additional two levels pursuant to USSG

§ 2K2.1(b)(4) because one firearm was stolen and had an obliterated serial number. Johnson received

a three level reduction for acceptance of responsibility pursuant to USSG § 3E1.1. This resulted in

a total offense level of 21. Johnson had one prior misdemeanor and one prior felony conviction


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United States v. Johnson


resulting in no criminal history points for a criminal history category I. This resulted in a guideline

imprisonment range of 37 to 46 months. Neither party objected to the PSR and the District Court

adopted the probation officer’s calculation of the guidelines range.

                Johnson’s sentencing hearing was held on June 5, 2006. The District Court heard

arguments and statements from counsel for the parties and the defendant’s statement. The district

court began its analysis of the case by noting that the case was “an unusual case.”            The court

commented on the unusual nature of the predicate felony offense, i.e., attendance at an animal fight,

and expressed surprise that such conduct was a felony under Michigan law. The court observed that

Johnson had been tried twice for murder and acquitted, did not have a serious criminal record, had

a poor, but stable, childhood, was one of 15 children raised by his parents, had been married to the

same woman for 48 years, had 5 children, one of whom was murdered, was 67 years of age and in

ill health, had a prior history of cocaine use and that the offense was “a single instance of limited

duration without significant planning involved.” The court found that the offense of conviction was

a serious offense but observed that it would not have been an offense at all if Johnson

had not previously been convicted of attending a dog fight1 and that a lengthy prison sentence was

not necessary to afford adequate deterrence given Johnson’s age or to protect the public from further

crimes.


          1
           This observation was legally incorrect. Possession of the sawed off shotgun and the pistol with
an obliterated serial number was illegal even without Johnson’s prior felony conviction. Possession of
these weapons was charged in counts 1 and 2 of the indictment. These counts were dismissed pursuant to
Johnson’s plea agreement with the government.


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No. 06-1999
United States v. Johnson


                The court then imposed a sentence of two years probation, imposed standard

conditions of supervision, required participation in a substance abuse program as a special condition

of supervised release and imposed a $100.00 mandatory assessment. The court summed up its

reasons for imposing a sentence outside the advisory guideline range as follows in the judgment:

                 The defendant is 67 years old. He has been married for 48 years and
                retired after 37 years at General Motors. He is in ill health. The
                defendant has no criminal history points, and his prior record is
                minimal and old. The guns were in his house, therefore not used.
                Based on these factors, the risk of recidivism is low.



                The United States has timely appealed the sentence, arguing that it is substantively

unreasonable.

                                ANALYSIS AND DISCUSSION

                This court reviews sentences under a reasonableness standard. Rita v. United States,

127 S. Ct. 2456, 2462 (2007); United States v. Booker, 543 U.S. 220, 262-263 (2005); United States

v. Harris, 397 F. 3d 404, 409 (6th Cir. 2005); United States v. Cage, 458 F. 3d 537, 540 (6th Cir.

2006). In Booker, the Supreme Court held that the sentencing guidelines, which were previously

mandatory, are now only advisory. Booker, 543 U.S. at 245. Accordingly, “a district court is

permitted to vary from those guidelines in order to impose a sentence which fits the mandate of [18

U.S.C. §] 3553(a).” United States v. Collington, 461 F. 3d 805, 808 (6th Cir. 2006).

                We review sentences for both procedural reasonableness and substantive

reasonableness. Id. “A sentence may be procedurally unreasonable if the district judge fails to


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United States v. Johnson


consider the applicable Guidelines range or neglects to consider the other factors listed in 18 U.S.C.

§ 3553(a), and instead simply selects what the judge deems an appropriate sentence without such

required consideration.” Id. (quotation marks omitted). In addition, a sentence may be substantively

unreasonable “when 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 a pertinent factor.” Id. (brackets and quotation marks omitted).

               With regard to the substantive reasonableness inquiry, this Court has applied a

“rebuttable presumption of reasonableness” to sentences falling within the applicable Guideline

range. United States v. Williams, 436 F. 3d 706, 708 (6th Cir. 2006), cert. denied 127 U.S. 3043

(2007). The Court has, however, rejected the notion that a sentence falling outside the Guidelines

range is presumptively unreasonable. United States v. Ferguson, 456 F. 3d 660, 664-65 (6th Cir.

2006). Since we are not reviewing a within–Guidelines sentence in this case, consideration of the

nature or the effect of the presumption is unnecessary in this particular case. See Rita, 127 S. Ct. at

2462; United States v. Liou, 491 F.3d 334 (6th Cir. 2007).

               The United States concedes that the district court’s sentence in this case was

procedurally reasonable but asserts that the sentence was substantively unreasonable “because the

variance from the advisory guidelines range was very large and the court’s justification was not

compelling.” (Brief of Appellant at 9). “Because the question at hand is whether the sentence is

reasonable in light of the 3553(a) factors, because one of these factors requires consideration of the

Guidelines Sentencing range, § 3553(a)(4), and because the guidelines ultimately purport to account


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 No. 06-1999
 United States v. Johnson


 for most, if not all, of the § 3553(a) factors, . . . our review starts with the sentencing estimate

 provided by the Sentencing Commission for certain types of crimes and certain types of criminals.”

 United States v. Davis, 458 F. 3d 491, 496 (6th Cir. 2006).

                 Where the district court “independently chooses to deviate from the advisory

 guidelines range (whether above it or below it), we apply a form of proportionality review: The

 farther the judge’s sentence departs from the guidelines sentence[,] the more compelling the

 justification based on factors in § 3553 must be.” Id. (quotation marks omitted).2 In Davis, the

 defendant was convicted of two counts of bank fraud and his guidelines range of imprisonment was

 30 to 37 months. Id. at 492 – 93. The district court imposed a sentence of one day of imprisonment,

 three years of supervised release and 100 hours of community service. Id. at 495. The district court

 referred to the defendant’s age (70) and the fact that he had committed the offense 14 years earlier.

 Id. at 493, 495. Since the defendant was retired and no longer controlled a business, the court

 reasoned that he did not pose a danger to commit further acts of bank fraud. Id.

               This court held the sentence to be substantively unreasonable, noting that the sentence

entailed an “extraordinary variance” of 99.89 percent. Id. at 496. The district court determined that

“the 14 – year gap between [the defendant’s] crimes and his second sentencing hearing – does not

support such a dramatic variance (and indeed may not support a variance at all).” Id. at 497. The court

         2
           To the extent it could be argued that the recent decision in Rita v. United States affects
 proportionality review, a panel of this Court recently suggested that the answer is “no”. United States v.
 Poynter, __ F.3d __, 2007 WL 2127353, (6th Cir. July 26, 2007). The issue has not been raised in this
 case and we need not address it further. The Supreme Court will consider the validity of proportionality
 review in its next term. See United States v. Gall, No. 06-7949.


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  United States v. Johnson


also held that “age . . . may indeed be a legitimate basis for a variance,” but “[t]o say that a district

court may account for a defendant’s age at sentencing, however, is not to say that [the defendant’s] age

(70) warrants a one–day sentence.” Id. at 498. The court recognized as “most problematic” the fact

that “the sentence represents the most extreme variance possible, leaving no room to make reasoned

distinctions between [the defendant’s] variance and the variances that other, more worthy defendants

may deserve. Id. at 499.

                This Court applied the holding of Davis in United States v. Borho, 485 F. 3d 904 (6th

Cir. 2007). In that case, the defendant was convicted of three counts of distributing child pornography

and one count of receiving child pornography. His computer contained over 5,000 images of child

pornography. Id. at 906–07. His guidelines range was 210 to 262 months, but the district court

granted a significant downward variance and imposed a sentence of 72 months. Id. at 906. The

district court explained that its decision was based on the fact that the defendant:

               Had no criminal history, other than one conviction for DUI in 1996. He
               was a decorated Vietnam War veteran with a long and stable history
               and profitable employment. He suffers from a number of medical
               conditions, which contributed to his depression and offense. And there
               is no indication that he ever intended to have any physical contact with
               children, that the time period of the crime was relatively short, that [his]
               trading in child pornography is limited to web sites on the internet, that
               the comprehensive sex offender risk assessment indicates he is
               amenable to treatment and poses low risk to public safety and low risk
               of re–offending.
Id. at 907 (quoting the sentencing transcript).

                This court reversed, holding that the defendant’s lack of criminal history was already

accounted for in the guidelines calculation and that defendant’s lack of direct interaction with children


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 No. 06-1999
 United States v. Johnson


in committing the offenses did not justify the substantial downward variance because in fashioning the

statutory offenses regarding possession of child pornography “Congress has clearly distinguished

between passive behavior and interactive behavior.” Id. at 912–914. This court also held that the

defendant’s ill health did not constitute a sufficiently “extraordinary circumstance” to justify the

variance. Id. at 913. The court recognized the fact that the defendant “voluntarily sought treatment

and has now realized the error of his ways is certainly laudable,” but concluded that “our affirming

the district court’s judgment as is would leave too little room ‘to make reasoned distinctions’ between

[the defendant’s] variance and variances that other, ‘more worthy defendants may deserve.’” Id. at 914

(quoting Davis, 458 F. 3d at 499).

               The Sixth Circuit approved a large downward variance in two reported cases

subsequent to Davis. 3 In United States v. Collington, 461 F. 3d 805, 807 (6th Cir. 2006), the defendant

was convicted of possession of over 50 grams of crack cocaine with intent to distribute, being a felon

in possession of a firearm, and possession of a machine gun. His guidelines range was 188 to 235

months, but the district court varied downward to impose a sentence of 120 months, with five years

of supervised release. Id. This court held that the sentence was substantively reasonable, agreeing

with the district court’s determination that “a 120 month sentence is sufficient enough to reflect the

crimes committed while allowing for the possibility that Collington may reform and after his release

from prison, when he is in his mid--thirties, may go on to a productive life in society.” Id. at 809. The


         3
            Neither of these cases was cited for the relevant point by the defendant. Instead, defendant
 cited a district court case, United States v. Kuhn, 351 F. Supp. 2d 696 (E.D. Mich. 2005), in support of
 his argument that his sentence was substantively reasonable. (Brief of Appellant at 8).

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  United States v. Johnson


district court had also considered “the early deaths of [the defendant’s] parents and the mistreatment

from his other relatives,” as well as that the defendant had “‘never been in custody for any substantial

period of time’” and that “ this incident was the first time that this quantity of drugs and guns had been

found in [the defendant’s] possession.” Id. at 807–09.

                In United States v. Husein, 478 F. 3d 318 (6th Cir. 2007), this Court expressly

distinguished Davis. In Husein, the defendant was convicted of “conspiracy to possess and distribute

ecstasy,” and two counts of aiding and abetting and the distribution of ecstasy. Id. at 323. She was

sentenced to one day in prison, though her guidelines range was 37 to 46 months. Id. at 333. The

primary reason for the district court’s guidelines based departure in that case had been “allowing

Husein to provide the assistance that her father needed to survive.” Id. at 332–33. The court addressed

the Davis court’s concern that Davis’ one–day sentence left no room for greater variances for worthier

defendants, concluding that “‘more worthy defendants than Husein are difficult to imagine, short of

those found to be not guilty,” Id. at 334, although at the same time acknowledging that the case

“approach[es] the boundary of the district court’s broader resentencing discretion under Booker. Id.

at 340.

                The court distinguished Husein’s situation from that of Davis, noting that her actions

caused no immediate harm to the individuals involved;” that she accepted responsibility for her

actions; that she expressed remorse for her conduct; and that her family circumstances were

extraordinary. Id. at 334. The court also noted Husein’s very significant work schedule, that her

income is required for the family to pay basic expenses and the lack of alternate care for her sick father


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and siblings. Id. at 323-324.

               Finally, in United States v. Fuson, 215 Fed. App’x. 468, 469, 2007 WL 414265 (6th

Cir. 2007), this Court affirmed a sentence of five years of probation for one count of being a felon in

possession of a firearm, which represented a downward variance from a guidelines range of 24 to 30

months. The defendant in that case had been in possession of an antique handgun, it was purchased

by the defendant’s wife at an antique show, and she planned to resell the gun. Id. The defendant

“allegedly expressed his objection to it and mentioned that he was not supposed to have weapons in

the house due to his prior felony convictions. The gun nonetheless remained in the house for the next

four months.” Id. This Court approved the variance on the basis that:

               In contrast to the district court in Davis, which relied heavily (and
               nearly exclusively) on disfavored or improper sentencing factors (time
               lapsed before sentence, age of the defendant, and the white–collar
               nature of the crime), the district court here relied more on the “nature
               and circumstances” of the offense and properly considered “history and
               characteristics of the defendant” under § 3553(a)(1), noting certain
               particularly unique factors: [The defendant’s] wife bought the gun,
               which was an antique; it was not bought for any criminal purpose; and
               [the defendant’s] criminal record, comprised of relatively minor
               predicate offenses, was unblemished for the past seven years.

Id. at 475. Although Fuson is not a published case and the panel is therefore not bound to follow it,

it provides a useful comparison to the instant case, given its facts.

               The facts of this case appear to clearly distinguish it from Collington and Husein. The

primary justification for the downward departure in Husein was that the defendant was indispensable

to the support of her family. Here, it does not appear from the record that Johnson’s family

circumstances are unique, i.e., that Johnson is required to provide necessary care to other family

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 No. 06-1999
 United States v. Johnson


members, or that his income would cease if he is incarcerated, making it impossible for his spouse to

pay for food, utilities or the mortgage. In Collington, this Court approved a variance downward

because of defendant’s difficult past home life, minor criminal history and potential for reform.

Johnson, on the other hand, enjoyed a stable, although poor, childhood and a stable married life.

Johnson’s possession of the third, uncharged firearm also calls into question his potential for reform.

Moreover, the sentence in Collington represented a 36% downward variance from the guidelines range,

which, while significant, is a fundamentally different matter from the extraordinary departure to

probation in the instant case.

               The situation in this case also is materially different from the situation in Fuson. In that

case, the firearm was an antique purchased by Fuson’s wife, was not purchased for a purpose which

exposed the public to danger and, had the firearm been a year older, the firearm would have been an

antique firearm under 18 U.S.C. § 921 and Fuson would not have been prosecuted. Here, the firearms

were apparently possessed because of their dangerous nature to provide “protection” because of threats

and acrimony related to Johnson’s murder trial. One of the firearms possessed by Johnson was stolen

and had an obliterated serial number and the other was a sawed off shotgun. Both were illegal to

possess even without Johnson’s prior felony conviction. And the third firearm, even though not

acquired personally by Johnson, was possessed by him after the seizure by the officers of the first two.

               Johnson’s guidelines range was from 37 to 46 months imprisonment. The district

court’s sentence represents a downward variance of 100% from the guideline range. Davis requires

that such an extreme downward variance be based on correspondingly compelling justification. The


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 No. 06-1999
 United States v. Johnson


district court must offer a compelling justification based on the relevant § 3553(a) factors that is in

proportion to the extent of the variance. Davis, 458 F. 3d at 496-97 (“[T]he question is whether

extraordinary circumstances justify the full amount of variance.”) The district court gave substantial

weight to Johnson’s age, stable marriage, work history, health and lack of recent criminal history. We

fail to see how these facts establish extraordinary circumstances which justify the large downward

variance in this case.

               Johnson’s lack of recent criminal history was fully taken into account in calculating his

guidelines range. Although Johnson had one prior misdemeanor conviction and one prior felony

conviction, he received no criminal history points for these convictions; see USSG § 4A1.2(e)(3),

resulting in a criminal history category of I. Johnson’s health and age, although “not ordinarily

relevant” under the guidelines, see USSG § § 5H1.1 and 5H1.4, may nevertheless “be a legitimate basis

for a variance” after Booker. Davis, 458 F. 3d at 498. The district court, however, never discussed

the “discouraged” status of these factors, see Koon v. United States, 518 U.S. 81, 95, 116 S. Ct. 2035,

135 L. Ed. 2d 392 (1996) (“discouraged factors . . . are those not ordinarily relevant in the

determination of whether a sentence should be outside the applicable guideline range”), and failed to

explain why Johnson’s age or health are extraordinary circumstances warranting a substantial

downward variance. See Borho, 485 F. 3d 904 (6th Cir. 2007). While Johnson has health problems,

they appear to be of the kind expected with a 67 year old man and not extraordinary. The district court

also did not find that Johnson’s medical conditions could not be adequately treated in prison or would

pose an undue hardship for him if incarcerated. Likewise, Johnson’s 48 year marriage, 37 year tenure


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  United States v. Johnson


at General Motors and the raising of five children are commendable but these circumstances do not

appear to be extraordinary.

                The district court noted that “the guns were in his house therefore not used” and that

there was no evidence that Johnson had taken the firearms from his house. The district court did not

discuss the relevance of such a finding or how it related to any of the § 3553(a) factors. Similarly, the

court made note of the fact that Johnson had twice been charged with murder and acquitted; however,

once again, the court did not further discuss this fact or how it related to the need for the sentence

imposed. Worthy of mention also is the district court’s finding that the risk of recidivism is low based

on these factors, a finding which appears to be contradicted by the record in this case. The record does

not reflect consideration of the seriousness of firearms offenses, especially under the facts of this case

which reflect that Johnson was in possession of a third loaded firearm when arrested for possession

of the two illegal firearms referenced in the instant indictment. Moreover, Johnson twice tested

positive for cocaine during his pretrial release, and the police found marijuana cigarettes along with

the third firearm when they arrested Johnson for the instant offense.

                In the end, the district court appears to have given little, if any, weight to the guidelines

range or to explain how the sentence imposed furthers the goal of imposing “a sentence sufficient, but

not greater than necessary, to [reflect the seriousness of the offense, to promote respect for the law, and

to provide just punishment for the offense, to afford adequate deterrence to criminal conduct, to protect

the public from further crimes of the defendant, and to provide the defendant with needed educational

or vocational training, medical care, or other correctional treatment in the most effective manner;


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 United States v. Johnson


. . .” ] 18 U.S.C. § 3553(a). The district court also did not articulate how this sentence avoided

unwarranted sentencing disparities. See § 3553(a)(6).

               This Court takes no position on what an appropriate sentence in this case might be and

notes that on remand the district court still retains ample discretion to grant a variance. The district

court may well find, on remand, that the term of imprisonment suggested by the guidelines is unduly

harsh in light of the parsimony requirement . The narrow reason for remand here is that the extreme

nature of the deviation, without a correspondingly compelling justification, resulted in a substantively

unreasonable sentence. We thus leave it to the district court to determine what, if any, extraordinary

circumstances justify a variance in this case and to impose an appropriate sentence.

                                           CONCLUSION

               For all of the reasons set forth above, we vacate the judgment of the district court and

remand for resentencing.




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