                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 11a0328n.06
                                                                                            FILED
                                            No. 10-5295                                May 18, 2011
                                                                                 LEONARD GREEN, Clerk
                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                      )
                                               )
       Plaintiff-Appellee,                     )   ON APPEAL FROM THE UNITED
                                               )   STATES DISTRICT COURT FOR THE
v.                                             )   EASTERN DISTRICT OF TENNESSEE
                                               )
JOHN W. HALLORAN                               )   OPINION
                                               )
       Defendant-Appellant.                    )
                                               )


       Before: ROGERS and KETHLEDGE, Circuit Judges; and RUSSELL, Chief District

Judge.*

       THOMAS B. RUSSELL, Chief District Judge. Defendant John Halloran appeals the

sentence he received after pleading guilty to being a felon in possession of a firearm in violation of

18 U.S.C. § 922(g)(1), attempting to possess with intent to distribute marijuana in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(D), and possessing a firearm in furtherance of a drug trafficking

crime in violation of 18 U.S.C. § 924(c). Because Halloran’s sentence was substantively reasonable,

we AFFIRM the judgment of the district court.

                                       I. BACKGROUND

       On February 1, 2009, a confidential informant working with the Chattanooga Police

Department spoke to Defendant-Appellant John Halloran over the phone to arrange a marijuana deal.


       *
          The Honorable Thomas B. Russell, United States Chief District Judge for the Western
District of Kentucky, sitting by designation.
No. 10-5295
United States v. Halloran

The following day Halloran agreed to meet the confidential informant at his apartment. Upon his

arrival at the confidential informant’s apartment, Halloran met Detective Kimbrough, an undercover

officer acting as a drug dealer attempting to sell marijuana. The Chattanooga Police Department

recorded the entire encounter.

        Halloran said to Detective Kimbrough, “Who got it, you got it?” “You setting me up?” and

“Let me see it.” In addition, Halloran took a gun from his jacket pocket and placed it in his pants

pocket. The gun later fell out of Halloran’s pocket and lodged between the couch cushions where

he was sitting. As soon as Halloran took possession of the marijuana (1,261.9 grams), police officers

entered the apartment and arrested him. Following Halloran’s arrest, police officers searched his

person and found $1,294 in cash in Halloran’s back pocket. The firearm was recovered from the

couch cushions. In addition, Halloran consented to a police search of his home, where the

Chattanooga Police Department discovered more marijuana.

        On July 14, 2009, a federal grand jury issued a three-count Indictment charging Halloran with

(I) possession of a firearm as a convicted felon in violation of 18 U.S.C. § 922 (g)(1); (II) attempt

to possess with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D);

and (III) possession of a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C.

§ 924(c). Halloran’s prior conviction for manufacturing methamphetamine occurred in 2004 when

he was 24. He did not serve jail time for that conviction.

        Halloran entered a plea of guilty as to all three counts of the Indictment on November 4,

2009, and was sentenced on February 25, 2010. The United States Probation Office prepared a

Presentence Investigation Report using the 2009 version of the Sentencing Guidelines. For Counts

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No. 10-5295
United States v. Halloran

One and Two, Halloran’s base offense level was 20 because of his prior felony drug conviction. He

was granted a three-level reduction for acceptance of responsibility so that his total offense level was

17. A total of 5 criminal history points established a criminal history category of III. Based on his

total offense level of 17 and criminal history category of III, the Guidelines range for imprisonment

was 30 to 37 months. Halloran was also subject to a mandatory consecutive 60-month sentence

under 18 U.S.C. § 924(c) for Count Three, resulting in a Guidelines range of 90 to 97 months.

        The district court, in making its determination, noted the advisory nature of the Guidelines

and the sentencing goals stated in 18 U.S.C. § 3553(a). The district court then sentenced Halloran

to 93 months imprisonment, consisting of 33 months on Counts One and Two and a 60-month

mandatory consecutive term on Count Three. The district court also recommended substance abuse

treatment for Halloran while incarcerated. Neither party objected to the court’s sentence.

        The district court’s judgment as to Halloran was entered on March 5, 2010. Halloran filed

his notice of appeal on March 27, 2010.

                                           II. ANALYSIS

        A. Standard of Review

        We review a district court’s sentence for procedural and substantive unreasonableness.

United States v. Bowers, 615 F.3d 715, 725 (6th Cir. 2010) (citing Gall v. United States, 552 U.S.

38, 51 (2007)). Procedural unreasonableness exists where the district court improperly calculated

the Guidelines, treated the Guidelines as mandatory, failed to consider the factors set forth in 18

U.S.C. § 3553(a), based the sentence upon clearly erroneous facts, or otherwise failed to provide an

adequate explanation for the sentence. Gall, 552 U.S. at 51. A sentence is substantively

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No. 10-5295
United States v. Halloran

unreasonable where, considering the totality of the circumstances, “the factors found in § 3553(a),

on a whole, do not justify the sentence imposed.” United States v. Coleman, 627 F.3d 205, 210 (6th

Cir. 2010) (citing Bowers, 615 F.3d at 725). We apply an abuse-of-discretion standard in

considering whether a sentence is procedurally or substantively unreasonable. United States v.

Griffin, 530 F.3d 433, 439 (6th Cir. 2008) (citing Gall, 552 U.S. at 51). A rebuttable presumption

of reasonableness applies to a sentence within the Guidelines range. Id. at 439; United States v.

Wilms, 495 F.3d 277, 280 (6th Cir. 2007).

       B. Substantive Reasonableness

       Because Halloran does not argue that his sentence was procedurally unreasonable, we review

Halloran’s sentence for substantive reasonableness only. United States v. Walls, 546 F.3d 728, 736

(6th Cir. 2008). “‘A reviewing court will find that a sentence is substantively unreasonable where

the district court select[s] the sentence arbitrarily, bas[es] the sentence on impermissible factors,

fail[s] to consider pertinent § 3553(a) factors, or giv[es] an unreasonable amount of weight to any

pertinent factor.’” Griffin, 530 F.3d at 439-40 (quoting United States v. Tate, 516 F.3d 459, 469 (6th

Cir. 2008)). We give due deference to a district court’s decision and “[t]he fact that [we] might

reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal

of the district court.” Gall, 552 U.S. at 51.

       Halloran argues that the sentence imposed by the district court is substantively unreasonable

because it was greater than necessary. Halloran believes the district court should have imposed a

nominal sentence on Counts One and Two since he was already subject to a five year mandatory

minimum sentence on Count Three. In support of this argument, Halloran notes that he is relatively

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No. 10-5295
United States v. Halloran

young, has never served a jail sentence, and is in need of the benefits of drug treatment rather than

prolonged incarceration. In addition, Halloran argues that the consecutive mandatory minimum term

of 60 months is double the advisory Guidelines range for Counts One and Two, and therefore,

combining the two terms resulted in a sentence greater than necessary.

        The sentence imposed by the district court is squarely within the Guidelines range and is

entitled to a presumption of reasonableness. The burden is on the defendant to rebut this

presumption. United States v. Martinez, 588 F.3d 301, 328 (6th Cir. 2009) (citing United States v.

Caver, 470 F.3d 220, 247 (6th Cir. 2006)). Halloran has failed to do so. He has not alleged that the

district court improperly considered the relevant sentencing factors or imposed the sentence

arbitrarily. Nor has Halloran identified a factor the district court failed to consider that supports his

argument that the sentence imposed is greater than necessary. At the sentencing hearing, the district

court acknowledged Halloran’s age, characteristics and family attachments, but also noted that

Halloran’s punishment was a consequence of his actions, which included possession of a firearm.

The district court was well within its discretion.

                                        III. CONCLUSION

        For the foregoing reasons, we find that the sentence imposed by the district court is not

unreasonable and AFFIRM the judgment of the district court.




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