                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0492n.06

                                            No. 06-3573

                           UNITED STATES COURT OF APPEALS                                 FILED
                                FOR THE SIXTH CIRCUIT                                  Jul 14, 2009
                                                                                 LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )    ON APPEAL FROM THE UNITED
v.                                                )    STATES DISTRICT COURT FOR THE
                                                  )    NORTHERN DISTRICT OF OHIO
JASON TAIT,                                       )
                                                  )
       Defendant-Appellant.                       )




       Before: COLE and COOK, Circuit Judges; COHN, District Judge.*


       COOK, Circuit Judge. Defendant Jason Tait pleaded guilty to charges of bank fraud,

conspiracy to commit bank fraud, uttering fraudulent securities, and mail theft. The district court

sentenced him to 21 months’ imprisonment, and Tait appeals his sentence. We affirm.


                                                  I.


       Without a plea agreement, Tait pleaded guilty to the offenses mentioned above. The

Presentence Report (“PSR”) assigned Tait an offense level of 7 and a criminal history category of

VI, resulting in a Guidelines range of 15 to 21 months. Tait’s 24 criminal history points far exceeded




       *
       The Honorable Avern Cohn, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 06-3573
United States v. Tait

the 13 needed to place him within category VI. At the time of the federal indictment, Tait was

serving a prison sentence on unrelated state charges.


       Tait concedes that the district court correctly scored his criminal history and calculated the

Guidelines range. And Tait never objected to the category VI designation, nor did he argue that it

over-represented his criminal past. The district court sentenced Tait to a 21-month term, which it

ordered him to serve consecutive to his undischarged state sentence. Now he appeals, claiming that

his criminal history score overstated the seriousness of his prior convictions and challenging his

sentence as substantively unreasonable.


                                                  II.


       Tait argues that his criminal history score, though correctly calculated, overstated the

seriousness of his criminal record and therefore warrants a downward departure under U.S.S.G. §

4A1.3(b)(1). We will “not review a district court’s decision not to depart downward unless the

record shows that the district court was unaware of, or did not understand, its discretion to make such

a departure.” United States v. Santillana, 540 F.3d 428, 431 (6th Cir.), cert. denied, 129 S. Ct. 469

(2008). The district court need not explicitly indicate its awareness of its discretion; “[r]ather, we

presume that the district court understood its discretion, absent clear evidence to the contrary.” Id.

In the absence of such clear evidence:


       we review the decision of the district court only if (1) the sentence was imposed in
       violation of the law; (2) it was imposed as a result of an incorrect application of the
       guidelines; (3) the sentence represented an upward departure; or (4) the sentence was

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United States v. Tait

       imposed for an offense for which there is no Sentencing Guideline and is plainly
       unreasonable.
Id. (internal quotation marks omitted).


       Tait’s over-representation challenge meets none of the criteria for review. He failed to raise

this argument before the district court, and on appeal he provides no evidence suggesting that the

district court misapprehended its discretion. Accordingly, we decline to review the downward

departure issue. See United States v. Johnson, 553 F.3d 990, 999 (6th Cir. 2009).


       Tait also questions the substantive reasonableness of his within-Guidelines sentence, a matter

we review for an abuse of discretion. Gall v. United States, 128 S. Ct. 586, 591 (2007). “District

courts are charged with imposing ‘a sentence sufficient, but not greater than necessary, to comply

with the purposes’ of sentencing.” United States v. Alexander, 543 F.3d 819, 822 (6th Cir. 2008),

cert. denied, 2009 U.S. LEXIS 3391 (U.S. May 4, 2009) (quoting 18 U.S.C. § 3553(a)). A sentence

is substantively unreasonable if the district court “select[s] the sentence arbitrarily, bas[es] the

sentence on impermissible factors, fail[s] to consider the pertinent § 3553(a) factors or giv[es] an

unreasonable amount of weight to any pertinent factor.” United States v. Caver, 470 F.3d 220, 248

(6th Cir. 2006) (alterations in original) (quoting United States v. Collington, 461 F.3d 805, 808 (6th

Cir. 2006)). Sentences imposed within a properly-calculated Guidelines range enjoy a rebuttable

presumption of substantive reasonableness. United States v. Vonner, 516 F.3d 382, 389–89 (6th

Cir.) (en banc), cert. denied, 129 S. Ct. 68 (2008).




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No. 06-3573
United States v. Tait
        Tait supports his substantive reasonableness challenge by citing his troubled upbringing and

the alleged disparities between his sentence and those meted out to his co-defendants. Although 18

U.S.C. § 3553(a)(6) requires that the sentencing court consider “the need to avoid unwarranted

sentence disparities among defendants with similar records who have been found guilty of similar

conduct,” this factor “concerns national disparities between defendants with similar criminal

histories convicted of similar conduct—not disparities between codefendants.” United States v.

Conatser, 514 F.3d 508, 521 (6th Cir. 2008), cert. denied, Marlowe v. United States, 129 S. Ct. 450

(2008). “Disparities between the sentences of coconspirators can exist for valid reasons, such as

differences in criminal histories, the offenses of conviction, or one co-conspirator’s decision to plead

guilty and cooperate with the government.” Id. at 522. Tait does not argue that his within-

Guidelines sentence is disparate from those received by similarly-situated offenders at the national

level, and his extensive criminal history amply justifies any discrepancy between his sentence and

his coconspirators’.


        Tait fails to rebut the presumption of reasonableness accorded his sentence. The district court

acknowledged the advisory nature of the Guidelines, considered the § 3553(a) factors, correctly

calculated the Guidelines range, and sentenced Tait within the range. Tait failed to persuade the

district court that his troubled childhood and any potential sentencing disparities among

coconspirators justified a shorter prison term, and nothing in the record suggests that the district

court abused its discretion in imposing sentence.




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United States v. Tait
        Tait’s substantive reasonableness challenge also mentions in passing that the district court

ordered him to serve his sentence consecutive to his state term. To the extent that Tait claims that

the consecutive aspect of his sentence violates reasonableness, his argument is perfunctory and

therefore waived. United States v. Sandridge, 385 F.3d 1032, 1035–36 (6th Cir. 2004). This claim

also fails on the merits because we review for abuse of discretion, which we will not find if the

sentencing court “makes generally clear the rationale under which it has imposed the consecutive

sentence and seeks to ensure an appropriate incremental penalty for the instant offense.” United

States v. Owens, 159 F.3d 221, 230 (6th Cir. 1998). When it imposed the consecutive sentence, the

district court specifically explained that it did so to address Tait’s “extensive criminal history.” This

reference, coupled with the court’s thorough examination of the § 3553(a) factors, sufficiently

establishes that the court did not abuse its discretion in imposing consecutive sentences. United

States v. Berry, 565 F.3d 332, 342–43 (6th Cir. 2009). We find Tait’s substantive reasonableness

challenge devoid of merit.


                                                  III.


        We affirm Tait’s sentence.




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