                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 18a0367n.06

                                           No. 17-6047

                          UNITED STATES COURT OF APPEALS                                 FILED
                               FOR THE SIXTH CIRCUIT                                Jul 24, 2018
                                                                               DEBORAH S. HUNT, Clerk

 UNITED STATES OF AMERICA,                               )
                                                         )
                                                                 ON APPEAL FROM THE
        Plaintiff-Appellee,                              )
                                                                 UNITED STATES DISTRICT
                                                         )
                                                                 COURT FOR THE EASTERN
 v.                                                      )
                                                                 DISTRICT OF KENTUCKY
                                                         )
 TRACEY THOMAS,                                          )
                                                                 OPINION
                                                         )
        Defendant-Appellant.                             )


       Before: GUY, BATCHELDER, and BUSH, Circuit Judges.

       JOHN K. BUSH, Circuit Judge. In 2016, Defendant-Appellant Tracey Thomas sold and

helped arrange the sale of at least 160 grams of crack cocaine on several occasions to a cooperating

witness at or near Thomas’s residence in Paris, Kentucky. Thomas was arrested and subsequently

pled guilty to conspiring to distribute crack cocaine, in violation of 21 U.S.C. § 846. After the

district court sustained Thomas’s objection to a Sentencing Guidelines enhancement, the court
recalculated the advisory Guidelines range. The recalculated Guidelines range recommended a

sentence of 92 to 115 months. Because the statutory mandatory minimum was 120 months of

imprisonment, the Guidelines Sentence was 120 months, and Thomas requested a sentence of

120 months. The district court disagreed with that recommendation and sentenced Thomas to

144 months of imprisonment. Thomas now challenges his sentence. We find that the district

court’s sentence was reasonable, so we AFFIRM.

       During sentencing, the district court explained that its “big[gest] concern” was with the

“nature of [Thomas’s] criminal history.” In particular, the court noted that Thomas had been in
and out of prison since the age of 27 and his prior offenses all involved violence. Moreover, “when
No. 17-6047, United States v. Thomas


he served a period of incarceration, [Thomas] violated conditions of his probation or release, or

he[] committed other offenses relatively soon after being released . . . .” Thus, the court found that

“there’s an indication . . . that it’s necessary for the court to impose a lengthy sentence that will

protect the public because [Thomas has] shown an inclination not to stop” and there is nothing in

the record to demonstrate that Thomas had a sudden realization that he needed to change his

actions. Defense counsel argued that because Thomas will be in his 60s when he is released, his

rate of recidivism will be low. The court acknowledged this, but weighed it against Thomas’s

criminal history.

        The court then heard from Thomas himself. Thomas told the court that he was sorry about

his past, but that was “because I’ve been in the wrong place at the wrong time” and “a whole lot

[has] been put into overdraft [in the PSR] . . . to where they want to make me look really bad . . . .”

Thomas attempted to explain what “really happened” in each of his previous convictions. He also

stated that he did not see himself as a drug dealer, but rather has a drug user and middle-man

helping people with their drug withdrawal by providing them with drugs.

        Thomas argues that his sentence is substantively unreasonable because, inter alia: the court

relied solely on Thomas’s criminal history and risk of recidivism, and no other facts specific to his

case, which were already accounted for in the Guidelines calculation; Thomas’s conviction is a

“garden variety” offense and thus, his above-Guidelines sentence is disproportionate; the offense
at issue is Thomas’s first federal conviction; the district court unfairly relied on Thomas’s

inarticulate statements given Thomas’s lack of education; and the court failed to take into account

mitigating factors.

        We review Thomas’s above-Guidelines sentence using a “deferential abuse-of-discretion

standard.” United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007) (quoting Gall v. United States,

552 U.S. 38, 41 (2007)). A sentence may be substantively unreasonable where a district court

selects it arbitrarily, fails to consider pertinent factors in 18 U.S.C. § 3553(a), or gives unreasonable
weight to any one factor. United States v. Nixon, 664 F.3d 624, 626 (6th Cir. 2011) (citing United

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No. 17-6047, United States v. Thomas


States v. Denny, 653 F.3d 415, 424 (6th Cir. 2011)). A substantively reasonable sentence must,

considering the “totality of circumstances,” “be proportionate to the seriousness of the

circumstances of the offense and offender, and sufficient but not greater than necessary, to comply

with the purposes of § 3553(a).” United States v. Melchor, 515 F. App’x 444, 446–47 (6th Cir.

2013) (quoting United States v. Vowell, 516 F.3d 503, 512 (6th Cir. 2008)); United States v.

Tristan-Madrigal, 601 F.3d 629, 633 (6th Cir. 2010) (quoting Gall, 552 U.S. at 51).

       “The defendant shoulders the burden of showing substantive unreasonableness,” United

States v. Woodard, 638 F.3d 506, 510 (6th Cir. 2011), as this court does not “second guess the

individualized sentencing discretion of the district court when it appropriately relies on the

§ 3553(a) factors in granting a downward or upward variance.” United States v. Davis, 537 F.3d

611, 618 (6th Cir. 2008). “When a district court considers the relevant 3553(a) factors in-depth

and reaches its determination that the appropriate sentence varies outside the advisory guidelines

range, we are very reluctant to find the sentence unreasonable.” United States v. Wendlandt,

714 F.3d 388, 397 (6th Cir. 2013) (citation omitted). “That an appellate court might have imposed

a different sentence is not an appropriate basis for reversal.” Nixon, 664 F.3d at 626 (citing Gall,

552 U.S. at 51); see also United States v. Collington, 461 F.3d 805, 811 (6th Cir. 2006) (holding

that when the district court has considered the relevant § 3553(a) factors in-depth, the appellate

court should not substitute its judgment for that of the district court regarding how long the
defendant should serve).

       Here, the district court did not abuse its discretion. The court explained its sentence—

including its decision to vary from the Guidelines—by analyzing the “pattern of conduct over the

course of [Thomas’s] life,” and finding that Thomas demonstrated a “pattern of disrespect over his

adult life” and a pattern of violent criminal activity, as well as an increased risk of recidivism

because he repeatedly violated his conditions of probation or release, or committed other offenses

relatively soon after being released. 18 U.S.C. § 3553(a)(2)(A) (“The court shall impose a sentence
sufficient, but not greater than necessary . . . to promote respect for the law”).


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No. 17-6047, United States v. Thomas


         Thus, “the court found that [Thomas] was a repeat offender[, not a first time offender, as

he argues] and that the Guidelines’ criminal history calculation understated his criminal record.

Those observations went to [Thomas’s] history and characteristics and were proper under section

3553(a)(1).” Nixon, 664 F.3d at 626.1 Though Thomas argues that it was impermissible for the

district court to vary upwards because his Guidelines range already included his criminal history,

we rejected such an argument in Nixon, holding “[t]hat a circumstance was addressed in the

Guidelines, however, does not prevent the district court from considering it under section 3553(a),

so long as the court explains why the circumstance warrants additional weight with regard to that

particular defendant’s sentence.” Id. Here, the district court not only explained that the violent

nature of Thomas’s prior offenses was of concern, as well as Thomas’s proclivity for offending as

soon as he left incarceration, but also that Thomas did not demonstrate that he has taken

responsibility for his actions.

         The district court also explained that it varied above the Guidelines because Thomas’s prior

court convictions failed to deter him from further criminal conduct and the court found that

Thomas was a danger to the public:

         [U]nder the unique circumstances presented by this defendant, I don’t think it’s
         sufficient for specific deterrence to prevent him from engaging in similar conduct
         in the future.
         While he and his counsel have made arguments that he’s finished with the life of
         criminal activity, there’s no objective criteria that would help the court reach that
         conclusion. The facts are just the opposite. The evidence in the case is just the
         opposite.
         He does present a significant danger to the public.


         1
           In fact, the district court’s analysis of the nature of Thomas’s prior criminal history did not rely upon
Thomas’s own statements from the sentencing hearing; consequently, Thomas’s argument that the district court relied
too heavily on his own statements has no factual basis, and Thomas has cited no legal basis to support the argument
either.
         Furthermore, that the district court relied upon the nature of Thomas’s prior criminal history, including its
pattern and frequency after Thomas has been released from incarceration, in addition to the need for deterrence,
distinguishes Thomas’s case from that of United States v. Poynter, in which “[t]he primary ground” for the court’s
holding was that “the court wanted to prevent [the defendant] from ever committing [the] crime again.” 495 F.3d 349,
353 (6th Cir. 2007). Moreover, as the government points out, there are concerns with Poynter in light of the Supreme
Court’s decision in Gall.

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No. 17-6047, United States v. Thomas


        ***
        And, therefore, I do find that it is necessary to impose a variance in this particular
        case to provide not only specific deterrence but also to protect the public from
        future crimes of the defendant, because he’s shown in the past a tendency towards
        violence. He’s attempted to explain it away, but his explanations are not believable.

Both deterrence and protection of the public are bases for proper consideration under

§ 3553(a)(2)(B) and (C). See Nixon, 664 F.3d at 626; see also Melchor, 515 F.App’x at 447

(“Under 18 U.S.C. § 3553(a), the district court should consider deterrence and protection of the

public when assigning a sentence. 18 U.S.C. § 3553(a)(2010). And this Court has not hesitated to

affirm reasonable upward variances based on potential for recidivism in the past.”); Bolds,

511 F.3d at 582 (“The district court noted in detail the nature and circumstances of [the

defendant’s] conduct in violating the terms of her supervised release, considering in particular her

numerous failures to appear for drug screening, the facts of her shoplifting offense, and [the

defendant’s] drug problem. The district court also recognized the need for the sentence to protect

the public . . . based on [the defendant’s] failure to accept responsibility for her actions and the

need to deter others . . . .”) (internal citations and quotation omitted).

        Thomas also argues on appeal that the district court did not accord credit to mitigating

factors in favor of providing Thomas with a lesser sentence. Thomas is incorrect. First, the district

court explicitly noted on the record that it reviewed Thomas’s work history and his reference to
continued support from his family and friends. However, the district court explained that these

factors were not compelling for numerous reasons, including the fact that Thomas continued to

engage in criminal activity despite enjoying his work and having the support of family and friends.

The court also recognized defense counsel’s argument that older defendants have lower recidivism

rates and weighed it against the court’s finding that defendants who have lengthy criminal

histories, such as Thomas, have higher recidivism rates. Based on such consideration by the district

court, we cannot say that the sentence was unreasonable. See United States v. Wolcott, 483 F.

App’x 980, 989 (6th Cir. 2012) (“Although [the defendant] may have wanted the district court to
show even greater leniency based on his age and health, the court’s decision not to do so does not

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No. 17-6047, United States v. Thomas


render the sentence unreasonable.”) Accordingly, the district court engaged in the balancing called

for by § 3553(a). Finally, “[a]lthough these [mitigating] considerations might support a lower

sentence, they do not compel one, and that is all we have license to consider.” United States v.

Overmyer, 663 F.3d 862, 864 (6th Cir. 2011); see also United States v. Jackson, 466 F.3d 537, 540

(6th Cir. 2006) (“The fact that the district court did not give the defendant the exact sentence he

sought is not a cognizable basis to appeal, particularly where the district court followed the

mandate of section 3553(a) in all relevant respects.”).

       The district court did not abuse its discretion. We therefore AFFIRM the district court’s

sentence.




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