                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 19a0517n.06
                                                                                     FILED
                                         No. 18-2229                            Oct 11, 2019
                                                                           DEBORAH S. HUNT, Clerk
                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

 UNITED STATES OF AMERICA,                             )
                                                       )
        Plaintiff-Appellee,                            )
                                                       )    ON APPEAL FROM THE
 v.                                                    )    UNITED STATES DISTRICT
                                                       )    COURT FOR THE WESTERN
 JODY STAMP,                                           )    DISTRICT OF MICHIGAN
                                                       )
        Defendant-Appellant.                           )
                                                       )

BEFORE: ROGERS, WHITE, and READLER, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Defendant Jody Stamp pleaded guilty to one count

of Possession of an Unregistered Firearm, in violation of 26 U.S.C. § 5861(d), and was sentenced

to 60 months’ imprisonment. Stamp appeals, arguing that his sentence is procedurally and

substantively unreasonable. Stamp also raises an ineffective assistance of counsel claim, which

we decline to reach on direct appeal. Because Stamp’s sentence is reasonable, we AFFIRM.

                                      BACKGROUND

       In the early morning of November 30, 2017, Stamp and his mother, Maryland Stamp, were

asleep at their home in Portage, Michigan, when someone knocked loudly on their front door.

Maryland looked out her bedroom window and was shot three times by an unknown perpetrator

from outside the home. When law enforcement arrived at the Stamp house, they found Stamp

holding his mother, who was on the floor and bleeding. Law enforcement described Stamp as

distraught and “reluctant to move” away from his mother. R. 33, PID 83. When Stamp moved,
No. 18-2229, United States v. Stamp


law enforcement provided first aid to Maryland, who was then transported to a hospital for further

treatment. Fortunately, Maryland survived.

       At the time of the shooting, Stamp was on parole for state offenses and was wearing a

tether, so he could not go in the ambulance with his mother. While Maryland was at the hospital

receiving treatment, a family friend called Stamp and told him that he knew “who killed grandma.”

R. 44, PID 209. At that point, Stamp believed his mother had died. Stamp then cut off his tether

and joined the friend in a borrowed vehicle, hoping to “catch up to” the people who shot his mother.

Id. at PID 210.

       Around 5:00 a.m., law enforcement learned that Stamp had cut off his tether. When law

enforcement called Stamp, he told them that he planned to “take care of this problem himself.” R.

33, PID 84. Later that morning, law enforcement located Stamp and the family friend in the

borrowed vehicle at a gas station. Stamp was in the driver’s seat. After arresting Stamp and the

friend, law enforcement found two shotguns, ammunition, and a nearly empty bottle of whiskey

in the car. They also found ammunition in Stamp’s pocket. Stamp later reported that he drank

nearly a full bottle of whiskey that morning and was heavily intoxicated at the time of his arrest.

       A federal grand jury issued a two-count indictment charging Stamp with one count of being

a Felon in Possession of a Firearm and Ammunition and one count of Possession of an

Unregistered Firearm. Stamp pleaded guilty to the latter charge.

       Based on a criminal history category of V and an adjusted offense level of 19, the probation

officer recommended a sentence at the top of the 57-71 months Guidelines range. In the

presentence investigation report, the probation officer reported that Stamp had a long criminal

history that included twenty-three prior convictions. However, only three were assigned criminal

history points. The probation officer identified USSG § 4A1.3, Criminal History Adequacy, as a



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potential ground for an upward departure because Stamp “has been continuously involved in the

criminal justice system” and “has numerous violations while being supervised on probation and

parole.” R. 33, PID 112. The probation officer also described Stamp’s mental-health and

substance-abuse histories, including his diagnoses of Bipolar Disorder, Intermittent Explosive

Disorder, and Attention Deficit Hyperactive Disorder.            Although Stamp was prescribed

medications for these disorders, he stopped using them. When interviewed, Stamp stated that his

diagnosis of Intermittent Explosive Disorder “makes sense to him . . . looking back on his life

history” and that to combat his disorder, he tries to “think about his actions[] before reacting.” Id.

at PID 108. He also acknowledged a history of anger-management issues. Stamp self-reported a

history of alcohol abuse, but stated he had been sober from 2002 until the day of his arrest in

November 2017.

       Stamp’s attorney moved for a downward variance based on the nature and circumstances

of the offense pursuant to 18 U.S.C. § 3553 (a)(1), arguing that the shooting of Maryland Stamp

was a catalyst for Stamp’s crime and a mitigating circumstance. At the sentencing hearing, the

court asked Stamp’s attorney to describe Intermittent Explosive Disorder, noting that “it’s sort of

self-descriptive, probably.” R. 43, PID 170. Stamp’s attorney explained that Stamp “has difficulty

coping when under a lot of stress” and reiterated that “but for the fact that shots rang out and his

mother was injured he would not be here.” Id. at PID 170, 174. The sentencing court also reviewed

Stamp’s prior convictions and parole violations and stated that the total criminal history score

“hardly reflects his criminal history.” Id. at PID 165.

       When given an opportunity to speak, Stamp expressed regret and took responsibility for

his actions, stating, “I don’t blame [my friend] for why I’m here because I seen them guns in the

back of that car. I didn’t have to get in there. I did not.” Id. at PID 178. The court responded:



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No. 18-2229, United States v. Stamp



               But the critical and the crucial issue in your explanation here is when
               he said let’s go get ‘em and in essence, and I don’t know if you used
               the word, but you said, yes, let’s go get ‘em. And you get the guns.
               Can you imagine . . . the blood bath that you could have going in
               with two shotguns and two guys in Kalamazoo, Michigan and trying
               to take revenge on people? You were not thinking very clearly, were
               you?

Id. Stamp replied:

               My mind wasn’t right, your Honor. . . . I don’t even know what my
               intentions were. . . . I ain’t drank in two years and I drank that thing
               straight down, sitting in a parking lot, crying my eyes out. I thought
               my mom had passed, you know. She is my best friend.

Id.

       The district court sentenced Stamp to 60 months’ imprisonment. The court recognized that

the circumstances were “tragic” for Stamp, but found that after “go[ing] over the nature of the

offense and [Stamp’s] background” and “listen[ing] to everybody,” a within-Guidelines sentence

was appropriate. Id. at PID 185. In stating its reasons for the sentence, the court repeated its

assessment that Stamp’s “criminal history is a little bit understated.” Id. The court also noted its

concern with “the bipolar situation and his intermittent explosive disorder, which is not an excuse

for crimes, and certainly makes him more dangerous rather than less.” Id. at PID 186.

       On appeal, Stamp challenges his sentence as procedurally and substantively unreasonable.

He also argues that his trial counsel was ineffective at sentencing.

                                          DISCUSSION

I.     Procedural and Substantive Reasonableness

       “A criminal sentence must be both procedurally and substantively reasonable.” United

States v. Parrish, 915 F.3d 1043, 1047 (6th Cir. 2019). Procedural reasonableness is process-

driven. United States v. Rayyan, 885 F.3d 436, 440 (6th Cir. 2018). It requires the sentencing



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No. 18-2229, United States v. Stamp


court to “properly calculate the guidelines range, treat that range as advisory, consider the

sentencing factors in 18 U.S.C § 3553(a), refrain from considering impermissible factors, select

the sentence based on facts that are not clearly erroneous, and adequately explain why it chose the

sentence.” Id. (citing Gall v. United States, 552 U.S. 38, 51 (2007)). Substantive reasonableness,

on the other hand, focuses on whether a “sentence is too long (if a defendant appeals) or too short

(if the government appeals). The point is not that the district court failed to consider a factor or

considered an inappropriate factor . . . , [but] that the court placed too much weight on some of the

§ 3553(a) factors and too little on others.” Id. at 442.

         We review procedural and substantive unreasonableness claims for an abuse of discretion,

although we review the sentencing court’s factual findings for clear error and its legal conclusions

de novo. Parrish, 915 F.3d at 1047.

    A.        Procedural Reasonableness

         Stamp argues that the district court’s determination that Stamp’s mental illnesses made him

more—rather than less—dangerous is not supported by the record.1 Stamp asserts that because

the district court did not have access to expert opinions or a psychological report on his disorders,

its finding was based on speculation.

         The district court did not clearly err in finding that Stamp’s mental disorders make him

more dangerous, rather than less. According to the presentence investigation report, Stamp

acknowledged a history of anger-management issues and suggested that his Intermittent Explosive



         1
           Stamp did not raise this objection at sentencing. Ordinarily, a party who fails to object at sentencing forfeits
his opportunity to raise new procedural unreasonableness objections on appeal. United States v. Bostic, 371 F.3d 865,
873 (6th Cir. 2004). However, where a district court fails to ask the parties to raise their objections after announcing
the sentence but before the sentencing hearing is adjourned, the parties do not forfeit their objections and are not
required to demonstrate plain error on appeal. Id. at 872. The district court failed to ask the Bostic question during
Stamp’s sentencing hearing. Thus, Stamp did not forfeit his right to raise new objections and is not required to
demonstrate plain error.


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No. 18-2229, United States v. Stamp


Disorder makes it difficult for him to consider his actions before reacting. At the sentencing

hearing, Stamp’s counsel stated that Stamp’s disorder causes him to have “difficulty coping when

under a lot of stress.” R. 43, PID 170. Stamp’s counsel also connected Stamp’s difficulty coping

under stress with his past criminal conduct, including the conduct underlying this case. On this

record, it was not unreasonable for the district court to find that Stamp’s mental disorders enhance

the risk of dangerous behavior. Although, as Stamp argues, it may have been beneficial for the

district court to have access to psychological reports and evaluations regarding Stamp’s mental

disorders before sentencing, the absence of such reports does not undermine an otherwise sound

finding.

        To the extent Stamp argues that it was impermissible for the district court to consider his

mental health an aggravating (rather than mitigating) factor, that argument also fails. To be sure,

“[e]vidence of a criminal defendant’s significant mental illness, whether occurring before or after

sentencing, is . . . relevant to crafting a just sentence under § 3553(a).” United States v. Robinson,

778 F.3d 515, 523 (6th Cir. 2015). But there is no obligation to treat a defendant’s mental illness

as mitigating. To the contrary, a sentencing judge must “consider every convicted person as an

individual and every case as a unique study in the human failings that sometimes mitigate,

sometimes magnify, the crime and the punishment to ensue.” Id. (quoting Koon v. United States,

518 U.S. 81, 113 (1996)). The district court was within its discretion to reason, based on the record

before it, that Stamp’s mental disorders make him more likely to engage in dangerous behaviors.

See also United States v. Maxwell, 483 F. App’x 233, 237 n.2 (6th Cir. 2012) (“[A] defendant’s

history of mental health problems and bizarre behavior may be viewed as aggravating, not

mitigating factors . . . .”).




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No. 18-2229, United States v. Stamp


    B.       Substantive Reasonableness

         This court applies a presumption of reasonableness to within-Guidelines sentences. United

States v. Vonner, 516 F.3d 382, 389-90 (6th Cir. 2008) (en banc). Although the presumption is

rebuttable, “[a] defendant who challenges a within-Guidelines sentence bears no small burden.”

United States v. Massey, 663 F.3d 852, 861 (6th Cir. 2011) (internal quotation marks and citation

omitted).

         Stamp has not rebutted the presumption of reasonableness. Stamp argues that the district

court placed too much weight on his criminal history and on “what could have happened instead

of what actually happened,”2 Reply Br. at 3, and not enough weight on the tragic nature of the

circumstances precipitating Stamp’s crime, including how his mental disorders may have

influenced his decision making. The record shows, however, that the district court “listened to

everybody” and considered that Stamp’s situation was “tough” and “tragic.” R. 43, PID 185-86.

The court weighed these circumstances against the potential for violence underlying the offense

and its determination that Stamp’s “criminal history is a little bit understated.” Id. at PID 185.

After considering all the § 3553(a) sentencing factors, the district court reasonably concluded that,

notwithstanding the tragic circumstances surrounding the crime, a sentence near the bottom of the

Guideline range was appropriate given the need for deterrence, Stamp’s demonstrated risk of




         2
           Stamp relies on United States v. Van, where this court held that a district court’s sentence was substantively
unreasonable because it was based on speculation that the defendant was participating in a criminal scheme. 541 F.
App’x 592, 598 (6th Cir. 2013). Van is inapposite. There, the district court found that the defendant was involved in
a criminal scheme based on its inkling that there was “something more going on,” and admitted that the facts
supporting the finding were “beyond the knowledge of the court.” Id. (internal quotation marks omitted). Here, the
district court properly considered Stamp’s motive in processing the guns. The court’s assessment was not based on
speculation; Stamp and his counsel repeatedly conveyed that he intended to use the firearm to take revenge on those
that he believed shot his mother. Further, the district court’s findings with respect to Stamp’s mental disorders were
supported by Stamp, Stamp’s counsel, and the presentence investigation report.


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No. 18-2229, United States v. Stamp


recidivism, and Stamp’s purpose in possessing the unregistered firearm. Accordingly, we cannot

say that Stamp’s sentence is substantively unreasonable.

II.    Ineffective Assistance of Counsel

       Stamp argues that his trial counsel’s “failure to present psychological reports, records, or

testimony for mitigation purposes” constituted ineffective assistance of counsel. Appellant’s Br.

at 17. Stamp asserts that presentation of evidence concerning how his mental disorders influenced

his actions would have “create[d] a reasonable possibility that the outcome of his sentencing would

[have] be[en] different.” Id. at 18.

       We ordinarily do not review ineffective assistance of counsel claims on direct appeal

because the record is usually insufficient to permit adequate review. United States v. Gardner,

417 F.3d 541, 545 (6th Cir. 2005); see also United States v. Ross, 206 F.3d 896, 900 (6th Cir.

2000) (“Such claims normally should be raised in habeas corpus proceedings, which permit

counsel to develop a record as to what counsel did, why it was done, and what, if any, prejudice

resulted.” (internal quotation marks and citation omitted)).       However, when the record is

adequately developed to allow us to assess the merits of the issue, we will do so. United States v.

Hall, 200 F.3d 962, 965 (6th Cir. 2000). Here, the record does not permit an adequate review of

Stamp’s claim. It is not clear whether or to what extent Stamp’s trial counsel considered presenting

psychological reports, records, or expert testimony on Stamp’s mental disorders. Nor is it apparent

that presentation of such evidence would have been helpful to Stamp. We therefore decline to

address the issue of ineffective assistance of counsel on direct appeal.

                                         CONCLUSION

       For the foregoing reasons, we AFFIRM the judgment of the district court.




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