                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 07a0174n.06
                            Filed: March 2, 2007

                                         05-2252

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                    )
                                             )
      Plaintiff-Appellee,                    )
                                             )
v.                                           )   ON APPEAL FROM THE UNITED
                                             )   STATES DISTRICT COURT FOR THE
DONTAY DARNELL TYLER,                        )   WESTERN DISTRICT OF MICHIGAN
                                             )
      Defendant-Appellant.                   )




      Before: MERRITT, DAUGHTREY, and GRIFFIN, Circuit Judges.


      PER CURIAM.           The defendant, Dontay Darnell Tyler, appeals the 72-month

sentence he received following his guilty plea to a charge of robbing a federally-insured

credit union.   He claims that his sentence was both procedurally and substantively

unreasonable because the district court failed to consider his contentions that the non-

threatening nature of his crime, his family history, and his desire to improve himself

warranted a lower sentence. The Government argues that the district court adequately

considered the relevant sentencing factors and that the sentence was reasonable under

all the circumstances, as required by United States v. Booker, 543 U.S. 220 (2005). We

agree, and we therefore affirm the district court’s sentencing order.
05-2252
United States v. Tyler

       Tyler pleaded guilty to the offense of “robbing [the credit union] . . . by using force

and intimidation.” After a three-level reduction for acceptance of responsibility, his offense

level was calculated at 19. The presentence report indicated that the defendant had a total

of three juvenile convictions and nine previous adult convictions, as well as multiple

citations for a series of parole violations. When additional points were added because

Tyler was on parole for previous sentences at the time of the credit union robbery, and

because he committed the offense “less than two years following [his] release from

custody,” see U.S. SENTENCING GUIDELINES MANUAL § 4a1.1(d), (e) (2006), Tyler was

assigned a total of 14 criminal history points, putting him in a criminal history category VI

and resulting in an advisory guideline range of 63 to 78 months.


       Tyler submitted a sentencing memorandum that urged the district court to “give

Tyler a sentence long enough to ensure that he receives the drug treatment that he needs,

but no longer.” The conclusion of the memorandum specifically requested two bulleted

items: that the court recommend Tyler for the 500-hour residential drug treatment program

provided by the Bureau of Prisons (BOP) and that the court recommend his designation

to a prison near his mother and sister, requests that were reiterated at the sentencing

hearing. Tyler also spoke on his own behalf at the hearing, asking to be allowed to serve

his sentence at a specific facility in New Jersey because of the vocational training

opportunities and the drug treatment program that it afforded and because it was located

near his family. Tyler told the district judge that he had committed the robbery impulsively



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United States v. Tyler

“to obtain drugs” and that he was aware he had an addiction problem and needed to

address it. His counsel also requested:


       I would ask the Court to measure [Tyler’s crime] against all the other types
       of bank robberies the Court sees from day to day, and place it on a scale
       there. There were no weapons involved, there were no injuries involved. It
       appears to me to have been a very impulsive offense. And . . . I would ask
       the Court to show some mercy toward this person.


       After the defendant and his counsel spoke, the district court sentenced Tyler based

on the sentencing guidelines, commenting: “A sentence within the guideline range does

appear to be reasonable and fair and just in this case, and in accordance with the factors

of 18 U.S.C. § 3553. Accordingly, the Court will utilize the advisory guidelines.” The court

explained that it would impose a 72-month sentence rather than “a sentence lower in the

guideline range because of the repeated violations of the defendant, including violations

of probation or parole when he has been released previously from state custody.” In

response to Tyler’s requests, the court also included a recommendation that he participate

in the BOP’s 500-hour residential drug treatment program and “that he be assigned to

Fairton, New Jersey, to participate in the drug program, vocational training, and be near

his family.”


       Despite the fact that there were no objections raised at the sentencing hearing,

other than defense counsel’s contention that his client’s criminal history score overstated

the seriousness of his record to date (an issue that was resolved against the defendant

and is not in dispute on appeal), the defendant now claims that he is entitled to a new

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05-2252
United States v. Tyler

sentencing hearing because the sentence imposed by the district court was “unreasonable”

under Booker. This claim is based largely on the district court’s failure to address and

specifically to factor into his sentence what the defendant now describes as the “mitigating

information” summarized in his attorney’s brief plea for mercy, i.e., the relatively benign

circumstances of the offense, as well as the defendant’s family situation and his desire to

improve himself. The defendant contends that this omission violated our holding in United

States v. Richardson, 437 F.3d 550 (6th Cir. 2006).


       We conclude that the defendant has read too much into our opinion in Richardson.

There we observed that the rebuttable presumption of reasonableness that attaches to a

sentence within the applicable guideline range “does not relieve the sentencing court of its

obligation to explain to the parties and the reviewing court its reasons for imposing a

particular sentence,” i.e., Its “obligation . . . to communicate clearly its rationale” for the

sentence. Id. at 553, 554 (quoting United States v. Williams, 436 F.3d 706, 708 (6th Cir.

2006)). And, in dicta, we further suggested that “[w]here a defendant raises a particular

argument in seeking a lower sentence, the record must reflect both that the district judge

considered the defendant’s argument and that the judge explained the basis for rejecting

it.” Id. at 554.


       In this case, the district court’s sentencing procedure was in full compliance with

both the holding and the dicta in Richardson. The only “particular argument” that the

defendant raised prior to and at the sentencing hearing was his contention that his criminal


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United States v. Tyler

history score overstated the seriousness of his record. The district court considered that

argument, found the objection to be without merit, and fully explained its reasoning on the

record. When asked near the conclusion of the hearing, just prior to imposition of the

sentence, whether there were any other concerns about the sentence proposed by the

district court, both defense counsel and the defendant responded in the negative. At no

point did anyone suggest to the district judge that he had failed to address defense

counsel’s brief plea for mercy specifically. Not only was any further objection to the

sentence therefore waived at that point, but there clearly was no procedural violation under

Richardson.


       The record in this case, much like that in Richardson, reflects that the district court

considered the factors in 18 U.S.C. § 3553(a), as required by Booker, and fully articulated

the reasons for imposing a 72-month sentence on the defendant, including the nature and

circumstances of the offense, the defendant’s criminal history and other characteristics, the

fact that his record reflected multiple convictions for increasingly serious crimes and a

pattern of recidivism, the defendant’s addiction and need for enrolment in a residential drug

rehabilitation program, his request for a facility with vocational training and for assignment

to a facility near his family. Given this record, we cannot say that the district court “simply

selecte[d]” what it viewed as “an appropriate sentence,” as condemned in United States

v. Webb, 403 F.3d 373, 383 (6th Cir. 2005) (citing Booker, 543 U.S. at 245-46). Instead,

the record reflects that the court carefully considered the § 3553(a) factors and explained



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United States v. Tyler

its reasons for arriving at the defendant’s sentence, as required by Booker and its Sixth

Circuit progeny.


       For the reasons set out above, we AFFIRM the judgment of the district court.




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