               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 18a0199n.06

                                       Case No. 17-4013

                          UNITED STATES COURT OF APPEALS                              FILED
                               FOR THE SIXTH CIRCUIT                             Apr 16, 2018
                                                                            DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                           )
                                                    )
       Plaintiff-Appellee,                          )      ON   APPEAL    FROM THE
                                                    )      UNITED STATES DISTRICT
v.                                                  )      COURT FOR THE NORTHERN
                                                    )      DISTRICT OF OHIO
ALLEN L. TYES,                                      )
                                                    )
       Defendant-Appellant.                         )                  OPINION


BEFORE: BATCHELDER, McKEAGUE, and GRIFFIN, Circuit Judges.

       McKEAGUE, Circuit Judge. Allen Tyes pled guilty to possessing a firearm as a felon

and received a within-Guidelines prison sentence of 61 months. The district court had been

prepared to impose an even harsher sentence, but it credited Tyes’s argument that a lower

sentence would “balance an inequity” in his Guidelines calculation. Unhappy that the district

court’s mitigation did not go farther, Tyes asserts for the first time on appeal that the district

court never considered the very argument that caught him a break. Finding no error, we affirm.

                                                I

       In March 2017, Allen Tyes pled guilty to possessing a firearm as a felon without the

benefit of a plea agreement. Relevant to this appeal, Tyes’s revised final presentence report

(PSR) relied upon his 2002 conviction for attempted felonious assault to assign additional

criminal history points under U.S.S.G § 4A.1.1(a) and an increase in the base-offense level under

§ 2K2.1(a)(4)(A).
Case No. 17-4013, United States v. Tyes


       Counting this conviction carried considerable consequence. If his 2002 conviction had

not been scored, Tyes’s Guidelines range would have been 27 to 33 months instead of 51 to

63 months. Tyes thus objected to any reliance on that conviction, arguing that the state court

“invalidly imposed” a 150-day parole revocation sentence that had increased his total sentence to

18 months (and thus triggered the harsher Guidelines range). The district court rejected that

argument, noting that binding caselaw foreclosed it from sustaining the objection, which was

essentially “a collateral attack on the state court judgment.” See United States v. Aguilar-Diaz,

626 F.3d 265 (6th Cir. 2010).

       Undeterred, Tyes requested that the district court nevertheless grant a downward variance

from the Guidelines range based on the circumstances surrounding the scoring of his 2002

conviction. Tyes argued that because he no longer had any legal remedy for the allegedly

improper imposition of his parole revocation sentence, it was “inequitable” to subject him to the

higher sentence calculated according to the Guidelines. In overruling Tyes’s objection, the

district court stated it would indeed “consider [his equity argument] in terms of the ultimate

sentence.”

       The district court ultimately rejected any argument for a downward variance and

sentenced Tyes to the high end of the resulting Guidelines range, citing the nature and

circumstances of the offense and Tyes’s history and characteristics in great detail, along with the

other 18 U.S.C. § 3553(a) factors. Crucially, the court noted, Tyes’s third conviction for an

identical offense “is really unusual,” placing Tyes “in a category of [his] own.”            After

announcing a 61-month sentence, the court engaged in a colloquy with Tyes’s counsel:

       THE COURT: Mr. Pagano, does Mr. Tyes object to the sentence?

       MR. PAGANO: No, Your Honor.
       ....

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Case No. 17-4013, United States v. Tyes


       THE COURT: Any additions, comments, or objections that we have not covered,
       Mr. Pagano?

       MR. PAGANO: No, sir.

After it received these assurances, the court noted it had indeed considered the circumstances

surrounding Tyes’s 2002 conviction—“or else [it] would have hammered [him] a lot harder.”

                                                  II

       On appeal, Tyes asserts for the first time that the district court never considered his

argument that the circumstances surrounding his 2002 conviction rendered a within-Guidelines

sentence inequitable. See United States v. Gunter, 620 F.3d 642, 645–46 (6th Cir. 2010) (noting

“as a part of its sentencing procedure, a court must consider all non-frivolous arguments in

support of a lower sentence”). Tyes bears a heavy burden under these circumstances.

       Generally, a defendant must show the district court abused its discretion in imposing its

sentence. This alone would present a heavy lift for Tyes because “we apply a presumption of

reasonableness to within-Guidelines sentences.” United States v. Kamper, 748 F.3d 728, 739–40

(6th Cir. 2014). But because Tyes failed to raise his procedural objection below, he admits he

must show the district court committed plain error—“(1) error, (2) that ‘was obvious or clear,’

(3) that ‘affected [his] substantial rights,’ and (4) that ‘affected the fairness, integrity, or public

reputation of the judicial proceedings.’” United States v. Vonner, 516 F.3d 382, 386 (6th Cir.

2008) (en banc) (quoting United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006))); see,

e.g., United States v. Lumbard, 706 F.3d 716, 725 (6th Cir. 2013) (invoking plain-error review

where a defendant did not raise procedural objections at sentencing when given an opportunity to

do so). This presents an even heavier lift for Tyes because “‘only in exceptional circumstances’

will we find such error—only, we have said, ‘where the error is so plain that the trial judge . . .

was derelict in countenancing it.’” Vonner, 516 F.3d at 386 (quoting Gardiner, 463 F.3d at 459).

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Case No. 17-4013, United States v. Tyes


       In arguing that the district court plainly erred, Tyes admits “[t]he district court mentioned

balancing of equities.” Forecasting the weakness in his argument, he nevertheless asserts “the

district court never directly addressed [his] equity argument involving the use of the 2002 prior

conviction.” To be sure, failing to address a defendant’s argument can constitute “significant

and reversible procedural error” in rare circumstances. See, e.g., United States v. Gapinski, 561

F.3d 467, 473–75 (6th Cir. 2006). But as we have consistently noted, “a district court’s failure to

address each argument . . . head-on will not lead to automatic vacatur if the context and the

record makes the court’s reasoning clear.” United States v. Petrus, 588 F.3d 347, 352 (6th Cir.

2009) (internal quotation marks omitted) (collecting cases). Good reasons abound for this rule,

particularly where the district court imposes a within-Guidelines sentence. “Circumstances may

well make clear that the judge rests his decision upon the [United States Sentencing]

Commission’s own reasoning that the Guidelines sentence is a proper sentence (in terms of

§ 3553(a) and other congressional mandates) in the typical case, and that the judge has found that

the case before him is typical.” Rita v. United States, 551 U.S. 338, 356 (2007).

       Contrary to Tyes’s brazen assertion, the district court explicitly considered his equity

argument in imposing a within-Guidelines sentence.           In overruling his objection to the

Guidelines calculation, the court stated:

       I will consider your argument in mitigation when imposing sentence; but as far as
       the law, it’s with the government, and they correctly cite the Sixth Circuit
       controlling law, which I am obligated to follow.

       So unfortunately I cannot sustain your objection to the criminal history
       calculation. I must go with the government and overrule it. Again, I will consider
       it in terms of the ultimate sentence . . . .




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Case No. 17-4013, United States v. Tyes


But the district court didn’t just consider Tyes’ argument; it credited it. After announcing its

sentence, the court explained that absent his equity argument, it had been prepared to impose an

even harsher sentence.

       Okay. Mr. Tyes, I have to tell you this: You may not see it this way, but I
       mitigated your sentence. You may not see 61 months as a mitigation of your
       sentence, but I was prepared to go above that and give you 70-something months
       for your third time; but I took into consideration what Mr. Pagano argued
       happened in state court. Even though we cannot collaterally attack that, I took
       that into consideration, or else I would have hammered you a lot harder. Just so
       you know that.

       As the transcript lays bare, the very argument that Tyes asserts was never considered

earned him a reduction. That the district court weighed the § 3553(a) factors and started at an

above-Guidelines sentence prior to mitigation does not mean it failed to consider Tyes’s equity

argument. The court simply assigned greater weight to other factors on the sentencing scale than

Tyes would have preferred. Cf. Vonner, 516 F.3d at 391 (“[T]his also was a classically ‘mine

run,’ within-guidelines case”—“[a]nd if it was not, that was only because Vonner had a real risk

of obtaining an upward variance.”).

       In sum, the record undoubtedly demonstrates the district court’s consideration went well

beyond prior cases where we have found a defendant “cannot show any error, much less plain

error.” Id. at 388 (rejecting a procedural challenge where the district court “did not specifically

address all of [the defendant’s] arguments for leniency”). Indeed, if any error is plain in this

case, it can be found in an appellate brief, not the sentencing transcript. Having rejected Tyes’s

argument that his sentence is procedurally unreasonable, we AFFIRM.




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