               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0577n.06

                                         No. 16-3147

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                 FILED
                                                                            Oct 24, 2016
UNITED STATES OF AMERICA,                             )
                                                                       DEBORAH S. HUNT, Clerk
                                                      )
       Plaintiff-Appellee,                            )
                                                      )   ON APPEAL FROM THE UNITED
v.                                                    )   STATES DISTRICT COURT FOR
                                                      )   THE SOUTHERN DISTRICT OF
BRYAN BAILEY,                                         )   OHIO
                                                      )
       Defendant-Appellant.                           )
                                                      )
                                                      )


       BEFORE: DAUGHTREY, ROGERS, and COOK, Circuit Judges.

       PER CURIAM. Bryan Bailey challenges the procedural and substantive reasonableness

of his 96-month sentence. We affirm.

       Bailey pleaded guilty pursuant to a written plea agreement to conspiracy to possess with

intent to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(i) and 846.

Bailey’s presentence report set forth a guidelines range of 87 to 108 months of imprisonment

based on a total offense level of 29 and a criminal history category of I. The district court

sentenced Bailey to 96 months of imprisonment followed by five years of supervised release.

       In this timely appeal, Bailey argues that his 96-month sentence is (1) procedurally

unreasonable because the district court failed to address a mitigating argument and started from

an artificially high recommended sentence and (2) substantively unreasonable in light of his

post-offense rehabilitation.   We review Bailey’s sentence for procedural and substantive
No. 16-3147
United States v. Bailey

reasonableness under a deferential abuse-of-discretion standard. United States v. Battaglia,

624 F.3d 348, 350 (6th Cir. 2010).

       Bailey first contends that the district court procedurally erred by failing to address his

mitigating argument about the physical abuse that he suffered as a child. The district court “must

consider all non-frivolous arguments in support of a lower sentence.” United States v. Gunter,

620 F.3d 642, 645 (6th Cir. 2010). The district court is not, however, required to “give the

reasons for rejecting any and all arguments by the parties for alternative sentences.” United

States v. Vonner, 516 F.3d 382, 387 (6th Cir. 2008) (en banc); see United States v. Odeh,

815 F.3d 968, 983 (6th Cir. 2016) (“[A] sentencing court need not, in a ‘point-by-point’ fashion,

respond to each mitigation argument offered by a defendant.”). On appeal, we must determine

whether, based on the entire sentencing record, “we are satisfied that the district court fulfilled

[its] obligation” to “conduct a meaningful sentencing hearing and truly consider the defendant’s

arguments.” Gunter, 620 F.3d at 646.

       The district court satisfied that obligation. Bailey’s presentence report and sentencing

memorandum both referred to the abuse inflicted by his mother’s boyfriend. At sentencing, the

district court acknowledged receipt of the sentencing memorandum and heard defense counsel’s

arguments, which mentioned the abuse but focused on Bailey’s post-offense rehabilitation.

Bailey’s aunt testified that he came to live with her because of the abuse. The district court

asked clarifying questions during the aunt’s testimony, showing that the judge was listening and

was aware of Bailey’s circumstances. See Vonner, 516 F.3d at 387; cf. United States v. Wallace,

597 F.3d 794, 806 (6th Cir. 2010) (remanding where “the entire sentencing transcript fails to

make clear whether the district court even considered the argument”).




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No. 16-3147
United States v. Bailey

       Bailey next argues that that the district court procedurally erred in starting from an

artificially high recommended sentence.      The probation officer recommended a 108-month

sentence, the high end of the guidelines range, in part to avoid unwarranted sentencing disparities

among similarly situated defendants—specifically, a defendant in a related case who received a

210-month sentence.       The probation officer also based her recommendation on Bailey’s

“knowledge and scope of the illegal activity and his considerable involvement in transporting

money and narcotics” and the need “to effectively punish the defendant and hopefully deter him

from re-engaging in illegal behavior.”

       At sentencing, the district court indicated its agreement with defense counsel’s argument

that Bailey and the other defendant were not similarly situated due to differences in both offense

level and criminal history category and later stated that Bailey was “nowhere near where” the

other defendant was positioned in the conspiracy. The district court went on to explain why it

was not imposing the recommended sentence, noting Bailey’s post-offense rehabilitation and his

support from family and friends, and why it was not granting a downward variance, noting his

“deep and significant” involvement in the conspiracy. The district court did not err.

       Bailey further asserts that the district court procedurally erred by disregarding his post-

offense rehabilitation and limiting its consideration of his history and characteristics to the time

of the offense. Contrary to Bailey’s argument, the district court expressly considered his post-

offense conduct, recognizing “the strides that Mr. Bailey has made in the last couple of years.”

The district court’s reference to “turn[ing] the clock back three years” indicated that the court

was shifting its analysis to the nature and circumstances of Bailey’s offense. See 18 U.S.C.

§ 3553(a)(1).




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No. 16-3147
United States v. Bailey

       Bailey also challenges the substantive reasonableness of his sentence, asserting that

96 months is longer than necessary to accomplish the sentencing goals set forth in 18 U.S.C.

§ 3553(a) in light of his post-offense rehabilitation. Bailey’s “argument ultimately boils down to

an assertion that the district court should have balanced the § 3553(a) factors differently,” which

is beyond the scope of our review. United States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008).

Bailey has not overcome the presumption that his within-guidelines sentence is substantively

reasonable. See Vonner, 516 F.3d at 389.

       For the foregoing reasons, we AFFIRM Bailey’s sentence.




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