                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 16a0605n.06

                                          No. 15-2391


                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                       )                              FILED
                                                )                        Nov 16, 2016
          Plaintiff-Appellee,                   )                    DEBORAH S. HUNT, Clerk
                                                )
v.                                              )
                                                     ON APPEAL FROM THE UNITED
                                                )
                                                     STATES DISTRICT COURT FOR THE
FRED DENNIS HALL,                               )
                                                     WESTERN DISTRICT OF MICHIGAN
                                                )
          Defendant-Appellant.                  )
                                                )
                                                )

BEFORE:          DAUGHTREY, ROGERS, COOK, Circuit Judges.

          MARTHA CRAIG DAUGHTREY, Circuit Judge.              Following defendant Fred Hall’s

guilty plea to a charge of being a felon in possession of a firearm, the district court sentenced

Hall to 96 months in prison, a sentence that represented an upward departure from the advisory

Guidelines range of 51 to 63 months. Hall now challenges both the procedural and substantive

reasonableness of that sentence, contending that the district court erred in concluding that the

defendant had stolen the firearm later found in his possession, erred in denying Hall a reduction

in his sentence for his acceptance of criminal responsibility, and erred in departing upward from

the applicable Guidelines range. We find no merit to any of Hall’s allegations of error and

affirm.

                       FACTUAL AND PROCEDURAL BACKGROUND

          In early August 2014, Brad Bench reported to law enforcement authorities that someone

had broken into his barn and had stolen some of his hunting equipment. Among the missing
No. 15-2391, United States v. Hall


items were a Charles Daly pump-action shotgun, the case and shells for that firearm, a pair of

Barska binoculars, and three trail cameras. Approximately three months later, the authorities

learned that defendant Hall had approached Joshua Helenhouse and tried to sell him a shotgun

and three trail cameras. Although Helenhouse declined the offers, Hall loaned the gun to

Helenhouse so that Helenhouse’s son could use the weapon during deer-hunting season.

Examination of the shotgun revealed that its make, model, and serial number matched those of

the shotgun stolen from Brad Bench. Moreover, the gun case in which Hall transported the

shotgun to Helenhouse contained 18 yellow shotgun shells, the same type of shells Bench

claimed he had stored in the pocket of the case before the gun was taken from his barn.

       As part of the investigation into Hall’s connection with the theft of Bench’s hunting

equipment, authorities received consent from Beverly Evans, Hall’s girlfriend, to search her

residence, where Hall stored some of his belongings.       During the search of the premises,

authorities found personal papers of Hall’s, cellular phones, three trail cameras, two pairs of

binoculars, and a tree stand. One of the recovered binoculars was manufactured by Barska and

matched the model and size of the binoculars that Bench had reported stolen. In fact, when

Bench was shown a photograph of the binoculars, he stated, “[T]hey look like mine.” However,

the other items found during the search, including the three trail cameras, were not Bench’s, but

later were identified as items stolen from other individuals who lived near Hall or near women

with whom Hall was romantically involved.

       In light of the uncontroverted evidence that Hall was seen in possession of the stolen

shotgun and previously had been convicted of numerous felonies, he pleaded guilty to the felon-

in-possession charge. At his sentencing hearing, however, Hall objected to the recommendation

in the presentence report that his base offense level be increased four levels due to his alleged



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No. 15-2391, United States v. Hall


involvement in the theft of Bench’s shotgun. He also argued before the district court that he

should be given credit for his acceptance of responsibility for the offense with which he was

charged.

       Despite those arguments, the district court concluded that the government had

established, by a preponderance of the evidence, that Hall had taken possession of Bench’s

shotgun during a burglary of Bench’s barn. In addition, the district court noted that Hall’s

continued denial of his role in obtaining the stolen property belied his claim that he was entitled

to a reduction in sentencing for acceptance of responsibility. Given Hall’s extensive criminal

record and his failure to conform his conduct to societal standards, the district court then

departed upward from the applicable Guidelines sentencing range and sentenced Hall to 96

months in prison—the same sentence Hall had received for an earlier, 2004 felon-in-possession

conviction. Hall now appeals the district court’s sentencing rulings.


                                         DISCUSSION


Standard of Review

       “We review a district court’s sentencing determination, under a deferential abuse-of-

discretion standard, for reasonableness.” United States v. Pearce, 531 F.3d 374, 384 (6th Cir.

2008) (citation and internal quotation marks omitted). Reasonableness review of a sentence “has

both a procedural and a substantive component.” United States v. Erpenbeck, 532 F.3d 423, 430

(6th Cir. 2008) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). Procedural errors include

“failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen sentence—including an

explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51. Appellate

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review of the substantive reasonableness of a sentence “will, of course, take into account the

totality of the circumstances, including the extent of any variance from the Guidelines range.”

Id. “A sentence is substantively unreasonable if the sentencing court arbitrarily selected the

sentence, based the sentence on impermissible factors, failed to consider pertinent [18 U.S.C.]

§ 3553(a) factors, or gave an unreasonable amount of weight to any pertinent factor.” United

States v. Cunningham, 669 F.3d 723, 733 (6th Cir. 2012) (citation omitted). Although we “may

apply a rebuttable presumption of reasonableness to sentences within the Guidelines,” Pearce,

531 F.3d at 384 (citing Gall, 552 U.S. at 51), the fact that a sentence imposed by a district court

is outside the Guidelines range does not mean that we may apply a presumption that the sentence

is unreasonable. Gall, 552 U.S. at 51.


Challenge to the § 2K2.1(b)(6)(B) Enhancement


       Upon Hall’s conviction for being a felon in possession of a firearm, the United States

Probation Office recommended assigning the defendant a Guidelines base offense level of 14

and adding two additional levels because the firearm possessed during the offense had been

reported stolen. See USSG § 2K2.1(a)(6)(A); (b)(4)(A). The district court agreed not only with

those initial calculations, but also with the probation office’s recommendation that Hall’s offense

level be increased another four levels because the defendant “used or possessed any firearm or

ammunition in connection with another felony offense.” USSG § 2K2.1(b)(6)(B). Pursuant to

the provisions of the commentary to USSG § 2K2.1(b)(6)(B), the four-level increase

“appl[ies] . . . in a case in which a defendant who, during the course of a burglary, finds and

takes a firearm, even if the defendant did not engage in any other conduct with that firearm

during the course of the burglary.” USSG § 2K2.1, comment. (n.14(B)(i)). Although he readily

admits that he possessed a firearm and that he was a convicted felon, Hall objects to the

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No. 15-2391, United States v. Hall


application of the four additional levels in calculating his Guidelines sentencing range because,

he submits, there is insufficient evidence to conclude that he was involved in the burglary of

Brad Bench’s barn. In fact, Hall insists that the stolen shotgun was given to him by another

individual and that he merely was attempting to sell the gun as a favor to that friend.

       In the district court, “[t]he burden is on the government to prove, by a preponderance of

the evidence, that a particular sentencing enhancement applies.”         United States v. Dupree,

323 F.3d 480, 491 (6th Cir. 2003).       We have held that proof by a “preponderance of the

evidence” may be defined as “such evidence as, when considered and compared with that

opposed to it, has more convincing force and produces in [the mind of the finder of fact] belief

that what is sought to be proved is more likely true than not true.” Williams v. Eau Claire Pub.

Sch., 397 F.3d 441, 446 (6th Cir. 2005). We then review the district court’s conclusion that the

preponderance-of-the-evidence standard has been met for clear error, according due deference to

the district court’s determinations. See, e.g., United States v. Taylor, 648 F.3d 417, 432 (6th Cir.

2011). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the

reviewing court on the entire evidence is left with the definite and firm conviction that a mistake

has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).

       It is true that no direct evidence ties Hall to the burglary of Bench’s barn and to the theft

of the Charles Daly pump-action shotgun. But Hall’s later possession of the stolen gun was

hardly his only tie to the burglary of the barn. However, other information before the district

court supports its conclusion that what the government sought to prove “is more likely true than

not true.” Williams, 397 F.3d at 446. In addition to Hall’s admitted possession of the stolen gun,

the district court was aware of the defendant’s record of prior thefts and of the fact that items of

hunting equipment stolen from other individuals who lived in close proximity to residences used



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No. 15-2391, United States v. Hall


by the defendant also were found in Hall’s constructive possession. Furthermore, the district

court heard testimony that a pair of Barska binoculars were found among Hall’s possessions, that

Brad Bench claimed that those binoculars appeared to be his, and that Barska binoculars were

not commonly used by hunters in that area.

       Our review of the appellate record leads us to the inescapable conclusion that the district

court did not commit clear error in determining that the evidence made it more likely true than

not that Hall was involved in the theft of items from Bench’s barn. As a result, there is no merit

to the defendant’s challenge to the application of the § 2K2.1(b)(6)(B) enhancement to his

sentence calculation.


Challenge to the Denial of a Sentence Reduction for Acceptance of Responsibility


       The district court also refused to grant Hall’s request for a reduction in his Guidelines

offense level for accepting responsibility and admitting his guilt of the felon-in-possession

charge. In doing so, the district court determined that such a reduction would be improper

because Hall continued to deny his involvement in the burglary of Bench’s barn and the theft of

the shotgun. “We review the district court’s determination that a defendant has not accepted

responsibility for the offense for clear error.” United States v. Kamper, 748 F.3d 728, 744 (6th

Cir.), cert. denied, 135 S. Ct. 882 (2014).

       The commentary to § 3E1.1 of the Guidelines provides that “a defendant who falsely

denies, or frivolously contests, relevant conduct that the court determines to be true has acted in

a manner inconsistent with acceptance of responsibility.” USSG § 3E1.1, comment. (n.1(A))

(emphasis added). Because, as discussed above, the district court did not err in finding, by a

preponderance of the evidence, that Hall indeed was involved in the burglary that resulted in the

theft of Bench’s shotgun and binoculars, Hall’s continued denials of his involvement in that

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No. 15-2391, United States v. Hall


crime means that the district court did not commit clear error in denying the defendant a sentence

reduction for acceptance of responsibility.


Challenge to the Propriety of the Decision to Depart Upward in Sentencing


       Even though Hall’s advisory Guidelines range called for a prison sentence between

51 and 63 months, the district court departed upward and imposed a 96-month sentence upon the

defendant. Hall contends that such a lengthy sentence was substantively unreasonable.

       In its initial calculations, the probation office assigned Hall a criminal history category of

IV, based upon the defendant’s numerous prior criminal convictions.              The district court

recognized, however, that even criminal history category IV “substantially underrepresent[ed]

the seriousness of the defendant’s criminal history or the likelihood that . . . the defendant will

commit other crimes.” According to the district court, a number of Hall’s prior convictions no

longer were counted in calculating the total number of the defendant’s criminal history points

due to the age of those earlier crimes. However, those prior crimes were felonies, not “multiple

misdemeanors or something of lesser importance than the offenses, which are not being counted

here.” Moreover, as explained by the district court:

       This defendant has four—count them—four prior convictions for felon in
       possession of a firearm. Three in state court, and one in the Western District of
       Michigan Federal Court, for which he received a 96 month sentence, from one of
       my colleagues last decade. Criminal History Category IV does not adequately
       score the seriousness of that criminal history.

       When “reliable information indicates that the defendant’s criminal history category

substantially underrepresents the seriousness of the defendant’s criminal history or the likelihood

that the defendant will commit other crimes, an upward departure may be warranted.” USSG

§ 4A1.3(a)(1). Here, the district court did determine that criminal history category IV indeed

underrepresented the seriousness of Hall’s criminal history—if for no reason other than the fact

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No. 15-2391, United States v. Hall


that some of his prior convictions were not counted simply because they had “aged out” while

Hall served other prison sentences. The district court thus departed upward and placed the

defendant in criminal history category VI, the criminal history category in which Hall fell during

his sentencing for his earlier, 2004 felon-in-possession conviction. As a result, Hall was subject,

as a criminal-history-category-VI, level-20 offender, to a prison term of 70 to 87 months. Even

then, the district court did not feel that the available range of sentences would provide adequate

punishment for Hall. Thus, pursuant to the directives of USSG § 4A1.3(a)(4)(B), the district

court “structure[d] the departure by moving incrementally down the sentencing table to the next

higher offense level in Criminal History Category VI . . .,” to the 77-to-96-month range

appropriate for a criminal-history-category-VI, level-21 offender.

       Having settled on a Guidelines range that it felt was appropriate, the district court stated:

       And for protection [of] the public, because this defendant is a serial offender, and
       he is a serial offender involving weapons, which in the Court’s judgment is
       extremely serious.

       And also for purposes of specific deterrence of Mr. Hall, it seems a non-starter to
       give him a sentence which is lower than the 96 month sentence for purposes of
       just punishment and for specific deterrence of Mr. Hall, it’s a non-starter to give
       him a sentence less than he received by my colleague approximately ten years
       ago. So for that reason, for specific deterrence and as well as general deterrence
       of others who might contemplate similar activity after rolling up the criminal
       history that Mr. Hall has [rolled] up, a further departure of one level down is
       appropriate, the resulting advisory guideline range is 77 to 96 months.

       Mr. Hall just doesn’t get it. He cannot conform his conduct to the requirements of
       the law. He was on supervised release for a very short period of time and, of
       course, [a] supervised release . . . violation is a violation of trust, which is separate
       and apart from further violations of the federal or state criminal law. But the
       Court gave Mr. Hall an opportunity to perform and measured a certain amount of
       leniency for Mr. Hall, but for whatever reason Mr. Hall just couldn’t stay away
       from violating the criminal law.

       I think just punishment for this offense in light of all of the factors which are
       attendant to the case calls for a sentence at the upper end of the guideline range as
       I have found in in this particular case.

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No. 15-2391, United States v. Hall



       Accordingly, it’s the judgment of the Court the defendant is committed to the
       custody of the Bureau of Prisons to be imprisoned for a term of 96 months.

       This sentence is not substantively unreasonable. First, there is no question that the 96-

month prison term was not selected arbitrarily. Rather, the district court recognized that Hall had

been given a 96-month sentence in 2004 for a prior conviction for being a felon in possession of

a firearm. It would make little logical sense to impose a more lenient sentence for a subsequent

violation of the same federal criminal law simply because the inexorable passage of time

rendered some prior convictions too remote to be considered in the Guidelines calculation of the

defendant’s criminal history category. Given the recidivist tendencies exhibited by Hall, the

district court’s sentence would not have been arbitrary even if it had been harsher than, rather

than merely equal to, the 2004 sentence imposed by another district judge for the same offense.

       Second, the district court did not base its sentence on impermissible factors. Instead, the

district court considered Hall’s criminal history, the seriousness of the offense, the need to deter

Hall from future misconduct, the need to dissuade other individuals from similar criminal

conduct, and the need to protect the public from further crimes of the defendant. Thus, the court

did not fail to consider any of the relevant factors listed in 18 U.S.C. § 3553(a) and did not give

undue weight to any of those considerations. The above-Guidelines-range sentence imposed by

the district court was, therefore, both justified and reasonable.

       The judgment of the district court is AFFIRMED.




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