                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0336n.06

                                           No. 08-4732

                            UNITED STATES COURT OF APPEALS
                                                                                         FILED
                                                                                     Jun 02, 2010
                                 FOR THE SIXTH CIRCUIT
                                                                               LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,                                )
                                                         )
          Plaintiff-Appellee,                            )
                                                         )
v.                                                       )   On Appeal from the United States
                                                         )   District Court for the Northern
IVEY J. MAYBOU,                                          )   District of Ohio
                                                         )
          Defendant-Appellant.                           )




Before:          BOGGS, SUHRHEINRICH, and ROGERS, Circuit Judges.

                 PER CURIAM. Ivy Joe Maybou was a sheriff’s deputy and prison guard in

Mahoning County, Ohio. Federal agents arrested Maybou after he purchased cocaine for one of the

prisoners under his supervision. Pursuant to a plea agreement, Maybou pleaded guilty to one count

of carrying a firearm during a drug trafficking offense. The district court imposed an eighty-four-

month sentence, which included a twenty-four-month upward variance. Maybou now appeals his

sentence, claiming that it is substantively unreasonable. Because we conclude that the district court

did not abuse its discretion by imposing an eighty-four-month sentence, we affirm the judgment of

the district court.

                                                  I

          Maybou became a Mahoning County sheriff’s deputy in July 2007, after working for six

years as a part-time police officer in Bazetta Township. The sheriff’s department assigned Maybou
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USA v. Maybou

to serve as a guard at the Mahoning County Justice Center. Maybou soon developed a friendship

with an inmate who “he thought could keep him informed as to what’s going on . . . .” Maybou

began to perform small favors for this inmate, such as bringing the inmate tobacco and allowing the

inmate to use Maybou’s cell phone.

         In early April 2008, the inmate offered to pay Maybou $2000 if he would bring the inmate

drugs. Maybou agreed. Unfortunately for Maybou, the inmate was an FBI informant who promptly

contacted the FBI and reported that Maybou had agreed to bring him drugs.

         The FBI provided the inmate with a cell phone number to give to Maybou. Maybou called

the number several times, leaving voicemail messages, and ultimately arranged to meet an

undercover FBI agent to pick up the “package.” At the agreed-upon time, Maybou met with the FBI

agent, who provided Maybou with $2000 and one ounce of cocaine.

         FBI agents arrested Maybou as he exited the undercover agent’s vehicle. A search of

Maybou’s person revealed that Maybou was carrying a loaded Glock 23, .40-caliber handgun. His

employer did not authorize him to carry the weapon at that time.

         A federal grand jury returned a two-count indictment against Maybou for possession with

intent to distribute cocaine (count one) and carrying a firearm during a drug trafficking offense

(count two). Maybou and the Government entered into a Rule 11 plea agreement, in which Maybou

agreed to plead guilty to the firearm count and the Government agreed to dismiss the possession

count.

         Pursuant to the plea agreement, Maybou pleaded guilty to carrying a firearm during a drug

trafficking offense. The Presentence Investigation Report (PSR) indicated that, under United States

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USA v. Maybou

Sentencing Guideline 2K2.4(b), the Guidelines sentence for carrying a firearm during a drug

trafficking offense was “the minimum term of imprisonment required by statute” (quoting U.S.S.G.

§2K2.4(b)). The relevant statute, 18 U.S.C. § 924(c), provided for a five-year mandatory minimum

sentence, so Maybou’s Guidelines range was sixty months.

       At the sentencing hearing, the district court accepted the PSR’s findings and found that

Maybou’s Guidelines range was sixty months. The court determined, however, that a sixty-month

sentence was not adequate. In the court’s view, the peculiar trust that society places in police

officers and prison guards, and the unique danger that such individuals pose when they choose to use

their positions to pursue illegal ends, necessitated a higher sentence. This led the court to vary

upward twenty-four months from the Guidelines range, resulting in an eighty-four-month sentence.

       Maybou filed a timely appeal. Although his plea agreement contains an appeal-waiver

provision, Maybou specifically reserved the right to appeal an above-Guidelines sentence.

                                                  II

       On appeal, Maybou challenges the substantive reasonableness of his sentence.1 This court

reviews the substantive reasonableness of a sentence under a deferential abuse-of-discretion

standard. United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007). A sentence may be

substantively unreasonable if the district court selects the sentence arbitrarily, bases the sentence on




       1
         Because Maybou does not argue that his sentence is procedurally unreasonable, we need
only review his sentence for substantive reasonableness. United States v. Walls, 546 F.3d 728, 736
(6th Cir. 2008).

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USA v. Maybou

impermissible factors, fails to consider pertinent 18 U.S.C. § 3553(a) factors, or gives unreasonable

weight to any pertinent factor. United States v. Vowell, 516 F.3d 503, 510 (6th Cir. 2008).

       For sentences that fall within the Guidelines range, the court applies a rebuttable presumption

of substantive reasonableness. United States v. Vonner, 516 F.3d 382, 389-90 (6th Cir. 2008) (en

banc). However, the court does not apply a presumption of unreasonableness when the sentence is

outside the Guidelines range. Vowell, 516 F.3d at 509. Rather, although the court “may consider

the extent of the deviation” from the Guidelines range, the court “must give due deference to the

district court’s decision that the [18 U.S.C.] § 3553(a) factors, on a whole, justify the extent of the

variance.” Gall v. United States, 552 U.S. 38, 51 (2007).

       In this case, the district court methodically discussed each § 3553(a) factor, analyzed how

those factors applied to Maybou’s case, and concluded that they justified a twenty-four-month

upward variance. Maybou asserts that the district court nevertheless acted unreasonably because (1)

the variance exceeded the normal U.S.S.G. §3B1.3 enhancement for an abuse of a position of trust,2

Appellant’s Brief at 16, and (2) the district court “gave an inordinate amount of emphasis to”

Maybou’s position as a prison guard and ignored his clean criminal record, the needs of his family,

and “the relative recency of his post.” Id. at 16-17.

       We find neither of Maybou’s arguments persuasive. First, this case did not involve the

U.S.S.G §3B1.3 enhancement, and Maybou’s actions were more egregious than the typical §3B1.3

case. By agreeing to buy illegal narcotics for a prisoner, Maybou violated not only the trust that the



       2
           U.S.S.G. §2K2.4(b) rendered the U.S.S.G. §3B1.3 enhancement inapplicable to Maybou.

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USA v. Maybou

public places in police officers to uphold the law, but also the trust that the public places in prison

guards to maintain prison security. See United States v. Siciliano, 953 F.2d 939, 942-43 (5th Cir.

1992) (finding an upward departure in addition to the §3B1.3 enhancement reasonable where “the

defendant [was] more than merely a law enforcement officer who engage[d] in a prohibited

transaction . . ., he [was] also a guard who engaged in a prohibited transaction while charged with

maintaining prison security”); see also United States v. Gilliam, 315 F.3d 614, 618 (6th Cir. 2003)

(noting that the public “places tremendous trust in prison employees that they will not conspire with

inmates to violate the law” (citation omitted)); United States v. Talley, 194 F.3d 758, 766 (6th Cir.

1999) (finding that a police officer who used his position to pursue criminal ends abused a position

of trust); United States v. Clay, 320 F. App’x 384, 392 (6th Cir. 2009) (rejecting the argument that

a “first-year correctional officer” did not occupy a position of trust).

       Second, contrary to Maybou’s contentions, the district court explicitly recognized Maybou’s

criminal record, his short tenure with the sheriff’s department, and the needs of Maybou’s family.

The court concluded, however, that those factors did not outweigh the need for an above-guidelines

sentence, which would reflect the seriousness of Maybou’s offense and deter similar conduct by

other police officers. Given the unique danger created by police officers’ ability to obscure their

criminal conduct behind the veil of police authority, and the threat posed to prison safety and

discipline by the introduction of illegal narcotics, this conclusion was not unreasonable. Cf. United

States v. Arroyo, 546 F.3d 54, 57 (1st Cir. 2008) (affirming an upward departure where the district

court found that a police officer set a very bad example by buying and making available illegal

drugs). Moreover, to the extent that Maybou suggests “that the district court should have balanced

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USA v. Maybou

the § 3553(a) factors differently, it is ‘simply beyond the scope of our appellate review, which looks

to whether the sentence is reasonable, as opposed to whether in the first instance we would have

imposed the same sentence.’” United States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008) (quoting

United States v. Ely, 468 F.3d 399, 404 (6th Cir. 2006)).

       Accordingly, the district court did not abuse its discretion when it determined that Maybou

should receive an eighty-four-month sentence.

                                                 III

       For the foregoing reasons, we AFFIRM the judgment of the district court.




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