                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0256n.06

                                           No. 10-5096                                    FILED
                                                                                     Apr 20, 2011
                             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 MIDDLE
v.                                                       )        DISTRICT OF TENNESSEE
                                                         )
WILLIAM AUBREY TROTTER,                                  )                          OPINION
                                                         )
       Defendant-Appellant.                              )




BEFORE:        COLE, STRANCH, Circuit Judges; and ZATKOFF, District Judge.*

       COLE, Circuit Judge. Defendant-Appellant William Aubrey Trotter appeals his sentence

of 81 months’ imprisonment for possessing a firearm as a felon, arguing that the sentence is

substantively unreasonable. We AFFIRM.

                                       I. BACKGROUND

       On January 9, 2009, a team of local and federal law-enforcement officers were conducting

surveillance on an apartment complex in Nashville where gang-related shootings had recently

occurred, when the officers observed Trotter patting his waistband and overheard him make

statements which led them to believe that Trotter was armed. Trotter left the apartment complex in

the passenger seat of a Saab sedan and the officers followed, eventually pulling the Saab over for a


       *
        The Honorable Lawrence P. Zatkoff, United States District Court for the Eastern District
of Michigan, sitting by designation.
No. 10-5096
USA v. William Aubrey Trotter

traffic violation. In a conversation with one of the officers Trotter volunteered that until recently he

had been incarcerated on a drug conviction and, when questioned further, admitted that he had a

firearm in the front of his waistband. The officer recovered the firearm and searched Trotter outside

the vehicle, finding ammunition and a few small bags of cocaine and marijuana.

       On July 13, 2009, Trotter pleaded guilty to one count of possessing a firearm as a felon in

violation of 18 U.S.C.§ 922(g)(1). The district court calculated Trotter’s United States Sentencing

Guidelines (“Guidelines”) range at 92-115 months’ imprisonment, but sentenced him to 81 months,

granting in part his request for a variance based on the harsh conditions of confinement Trotter

endured in the local jail where he was held awaiting trial and the valuable service he provided by

blowing the whistle on those conditions in a related case. The district court declined to vary further

from the Guidelines range based on evidence of abuse Trotter suffered as a child. This appeal

followed.

                                           II. ANALYSIS

       A. Standard of Review

       We review a district court’s sentencing determination for reasonableness under a deferential

abuse-of-discretion standard. United States v. Studabaker, 578 F.3d 423, 430 (6th Cir. 2009) (citing

United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007)). Reasonableness includes both procedural

and substantive components. Gall v. United States, 552 U.S. 38, 51 (2007). Trotter challenges only

the substantive reasonableness of his sentence.

       The district court must impose a sentence that is “sufficient, but not greater than necessary,

to comply with” the factors in 18 U.S.C. § 3553(a). See United States v. Tristan-Madrigal, 601 F.3d

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USA v. William Aubrey Trotter

629, 632 (6th Cir. 2010). “‘A sentence is 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.’” Id. at 633 (quoting

United States v. Walls, 546 F.3d 728, 736 (6th Cir. 2008) (internal quotation marks and alterations

omitted)). A sentence within the Guidelines range “warrants a presumption of reasonableness.”

United States v. Herrera-Zuniga, 571 F.3d 568, 590 (6th Cir. 2009). Although “[a] sentence outside

the Guidelines carries with it no legal presumption,” United States v. Vowell, 516 F.3d 503, 509 (6th

Cir. 2008) (citing Rita v. United States, 551 U.S. 338, 355 (2007)), a defendant with a below-

Guidelines sentence faces a high burden in establishing that his sentence is unreasonably severe,

United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008); United States v. Bailey, 264 F. App’x 480,

485 (6th Cir. 2008); cf. United States v. Wright, 332 F. App’x 257, 261 (6th Cir. 2009) (affording

a presumption of reasonableness to a below-Guidelines sentence).

        B. Substantive Reasonableness

        Trotter urges that his sentence is substantively unreasonable because the district court

declined to vary further downward from the advisory Guidelines range to account for the terrible

abuse Trotter suffered as a child. This argument, though Trotter does not so specify, amounts to a

claim that the district court did not give enough weight to an aspect of the defendant’s history and

characteristics under § 3553(a)(1). See Tristan-Madrigal, 601 F.3d at 632 (“A sentence is

substantively unreasonable if the district court . . . gives an unreasonable amount of weight to any

pertinent [sentencing] factor.”) But the sentencing transcript makes clear that the district court did

not act unreasonably in finding that the mitigated culpability resulting from Trotter’s abusive

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USA v. William Aubrey Trotter

childhood was outweighed by the need to protect the public from the risk that Trotter would return

to a life a crime. That this balance was tipped based on the district court’s assessment of Trotter’s

lengthy criminal history—that is, data evincing a substantial probability that Trotter would

recidivate—underscores the reasonableness of the district court’s sentencing calculus. And Trotter’s

effort to undermine the district court’s reliance on that history by characterizing his past offenses as

non-violent is belied by the descriptions attending his crimes in the Presentence Investigation Report,

which note the presence of firearms incident to many of Trotter’s drug-related offenses.

        Finally, we agree with the district court that the abuse Trotter suffered in childhood was

“horrific.” (Sentencing Tr., Dist. Ct. Docket No. 63, at 37.) But the district court’s judgment that

the present effects of Trotter’s past had to give way to the need of the public to be protected from

his propensity to break the law is squarely within its discretion to make.

                                        III. CONCLUSION

        For the reasons above, Cole’s sentence is AFFIRMED.




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