            NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                       File Name: 06a0626n.06
                        Filed: August 23, 2006

                                    Nos. 05-5205, 05-6077

                      UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,

              Plaintiff-Appellee,                     ON APPEAL FROM THE
                                                      UNITED STATES DISTRICT
v.                                                    COURT FOR THE WESTERN
                                                      DISTRICT OF TENNESSEE
LUCIANA MORRIS,

           Defendant-Appellant.
____________________________________/

BEFORE: BOGGS, Chief Judge, and BATCHELDER, Circuit Judge; BELL, District
Judge.*

       PER CURIAM. Luciana Morris pleaded guilty to multiple offenses arising from two

separate indictments. The offenses included access device fraud in violation of 18 U.S.C.

§ 1029(a)(2), conspiracy to commit identity theft and access device fraud in violation of 18

U.S.C. § 371, fraud in connection with identification documents and information in violation

of 18 U.S.C. § 1028(a)(7), false oaths and claims in violation of 18 U.S.C. § 152(3), and

disclosure and use of a false social security number in violation of 42 U.S.C. § 408(a)(8).

The district court sentenced her to 46 months of incarceration and 2 years of supervised

release. Morris appeals. Because the district court reasonably sentenced Morris, we affirm.

       *
      The Honorable Robert Holmes Bell, Chief United States District Judge for the
Western District of Michigan, sitting by designation.
Nos. 05-5205, 05-6077                        2
U.S. v. Morris

                                             I.

       Following Morris's guilty plea, the probation office prepared a presentence report.

The report set Morris's base offense level at 6. The report also recommended a four-level

enhancement because the loss involved between $10,000 and $30,000 and a two-level

enhancement because the offense involved the unauthorized transfer or use of any means of

identification. See JA 114; U.S.S.G. §§ 2B1.1(b)(1)(C), 2B1.1(b)(9). Morris's fifteen

criminal history points gave her a criminal history category of VI. JA 124. At the sentencing

hearing, on January 24, 2005, the government objected to the failure to enhance the sentence

based on Morris's leadership role in the scheme. JA 39. After hearing testimony from

Morris's co-conspirator, Esha King, the district court sustained the government's objection

and enhanced the sentence two levels. The district court then calculated the sentencing range

based upon a total offense level of 16 and criminal history category of VI, resulting in a

range of 46-57 months in prison.

       The district court then permitted Morris to put on evidence regarding mitigating

circumstances related to her history and characteristics. Morris presented the testimony of

four witnesses, including herself. The witnesses detailed her history of physical and sexual

abuse at the hands of family members and others, her current familial obligations, and her

efforts, since being arrested, to reform her conduct. Morris's testimony echoed that of the

other witnesses with regard to the abuse she endured during childhood, her abusive first

marriage, and her present willingness to forsake her criminal past.
Nos. 05-5205, 05-6077                         3
U.S. v. Morris

       Following the testimony from Morris and the other witnesses, the court determined

that a sentence within the guideline range was appropriate and reasonable. JA 98. While the

court acknowledged Morris's abusive past, it cautioned that her history was not an

extraordinary circumstance and had to be weighed along with "all of the other

considerations" in the sentencing process, including the seriousness of the offenses, the need

to promote respect for the law and provide a just punishment, and the need to deter future

criminal conduct. JA 108-09. Weighing these factors, along with her history, genuine

remorse, and the prospect for rehabilitation, the court sentenced Morris to 46 months of

incarceration. JA 111.

                                             II.

       In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court made the

Guidelines advisory. While the Guidelines are advisory, sentencing courts must "consider

Guidelines ranges" but also are permitted "to tailor the sentence in light of other statutory

concerns as well."    Booker, 543 U.S. at 245-46.        We review Morris's sentence for

reasonableness. United States v. Morris, 448 F.3d 929, 931 (6th Cir. 2006). This entails

consideration of "not only the length of the sentence but also the factors evaluated and the

procedures employed by the district court in reaching its sentencing determination." United

States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005).           "As such, a sentence may be

unreasonable 'when the district judge fails to "consider" the applicable Guidelines range or

neglects to "consider" the other factors listed in 18 U.S.C. § 3553(a), and instead simply
Nos. 05-5205, 05-6077                          4
U.S. v. Morris

selects what the judge deems an appropriate sentence without such required consideration.'"

Morris, 448 F.3d at 931 (quoting Webb, 403 F.3d at 383).

       This circuit has held that a sentence that falls within a properly calculated advisory

Guideline range is credited with a rebuttable presumption of reasonableness. United States

v. Williams, 436 F.3d 706, 708 (6th Cir. 2006). "This rebuttable presumption 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." United States v. Hernandez-Fierros, No.

05-2206, ___ F.3d ___, 2006 WL 1806477, *1 (6th Cir. July 3, 2006) (quoting United States

v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006)). The district court, however, is not

required to "recite these [§ 3553(a)] factors but must articulate its reasoning in deciding to

impose a sentence in order to allow for reasonable appellate review." United States v. Kirby,

418 F.3d 621, 626 (6th Cir. 2005).

       In this case, Morris argues that the manner in which the district court imposed the

sentence was unreasonable because the court failed to adequately consider the § 3553(a)

factors and relied solely on the Guidelines. Morris contends that the district court's approach

essentially treated the Guidelines as mandatory. A review of the record demonstrates that

this argument lacks merit.      While the district court made isolated references to the

significance and weight given to the Guidelines, the record clearly reveals that, overall, the

factors were adequately considered and applied. For example, the court explained that, in

light of Booker, the Guidelines were advisory and the court "is permitted to tailor its sentence

in the light of other statutory concerns." JA 59-60. The court then enumerated many of the
Nos. 05-5205, 05-6077                          5
U.S. v. Morris

factors listed under § 3553(a) and requested that Morris's proofs be directed to those factors.

JA 60. After hearing the proofs, the court stated that it "must consider" the history and

characteristics of the defendant. JA 98. The court then indicated that although the testimony

regarding Morris's history was credible and tragic, it did not justify a non-Guideline sentence

and could not "swallow up all of the other considerations that I have to address in a

sentencing process." JA 99. The court then clearly stated that due to the "extremely serious"

nature of the offenses, the need to promote respect for the law and provide "just punishment

in this case," and "to deter further criminal conduct" a non-Guideline sentence was not

appropriate. JA 99-100. The court then weighed these factors, along with Morris's recent

law-abiding activity, "genuine remorse," and "chance to lead a crime-free life in the future,"

to arrive at the sentence imposed at the bottom of the advisory Guideline range. JA 101-02.

Finally, the recommendation to the Bureau of Prisons that Morris undergo mental health

treatment and be placed in a facility near her hometown clearly indicates that the district

court sought to tailor the sentence to Morris's individual needs.               See 18 U.S.C.

§ 3553(a)(2)(D).

       Viewing the sentencing process in its entirety, it is clear that, despite the occasional

stray reference to assigning predominant weight to the Guideline range, the district court

considered and gave appropriate weight to the § 3553(a) factors in arriving at the sentence.

Moreover, the court sufficiently articulated its reasoning for selecting a sentence at the lowest

end of the advisory Guideline range, rather than a non-Guideline sentence. Williams, 436

F.3d at 709. Morris has failed to offer any reason why the presumption created by the district
Nos. 05-5205, 05-6077                          6
U.S. v. Morris

court's sentence within the Guideline range should not apply in this case. Accordingly, we

conclude that both the sentence and the manner in which it was imposed were reasonable.

       Morris next argues that the district court failed to understand that it had the authority

within the advisory Guidelines scheme to grant a downward departure from the

recommended Guidelines range based upon the mitigating evidence presented during the

sentencing hearing. "[W]e have 'consistently held that the decision by a district court not to

depart downwards from the Guidelines is not reviewable on appeal unless the record reflects

that the district court was not aware of or did not understand its discretion to make such a

departure.'" United States v. Puckett, 422 F.3d 340, 344 (6th Cir. 2005) (quoting United

States v. Stewart, 306 F.3d 295, 329 (6th Cir. 2002)); see also United States v. McBride, 434

F.3d 470, 476 (6th Cir. 2006) (applying Puckett post-Booker). In this case, the district court

was aware of its discretion to depart downwards but determined that Morris's circumstances

did not justify a departure within the Guideline scheme. After hearing the testimony from

Morris and the other witnesses, the district court determined that while it was credible and

tragic, it "does not rise to the level that would permit me to render a non-guideline sentence

in this case." JA 100. While this phrase might be ambiguous as to whether the judge is

addressing only the advisory nature of the Guidelines, the court went on to say, after

considering Morris's recent good behavior and genuine remorse, that this evidence was "not

sufficient to support the Court's opinion of a non-guideline sentence or a downward

departure." JA 102. Thus, the district court clearly recognized its discretion to depart

downward from the applicable guideline range but determined that the facts of the case did
Nos. 05-5205, 05-6077                          7
U.S. v. Morris

not support such a departure. Morris's only support for her argument is based on a

misunderstanding of the district court's statement that it could not conclude that her situation

was not an "extraordinary circumstance" justifying departure. JA 99. Read in context, the

district court's comment is not a failure to recognize its discretion to depart downwards, as

Morris would have it, rather, it is a recognition of the fact that numerous defendants

sentenced by the court have similar tragic personal histories and that Morris's circumstances

did not rise to the level required to justify a downward departure. JA 99-100. Because the

district court recognized its discretion to grant a downward departure, the refusal to do so is

unreviewable on appeal. Puckett, 422 F.3d at 346; United States v. May, 399 F.3d 817, 827-

28 (6th Cir. 2005).

                                              III.

       For the foregoing reasons, we AFFIRM the sentence imposed by the district court.
