                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0470n.06

                                            No. 08-5998                                    FILED
                                                                                       Aug 03, 2010
                           UNITED STATES COURT OF APPEALS                         LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,        )
                                 )
      Plaintiff-Appellee,        )
                                 )
v.                               )                         ON APPEAL FROM THE UNITED
                                 )                         STATES DISTRICT COURT FOR THE
ONNIE NESBITT, aka OMIE NESBITT, )                         WESTERN DISTRICT OF TENNESSEE
                                 )
      Defendant-Appellant.       )
______________________________   )                                       OPINION
                                 )


Before: GILMAN and WHITE, Circuit Judges; and WATSON District Judge.*

       HELENE N. WHITE, Circuit Judge. Defendant Onnie Nesbitt (Nesbitt) appeals his 235-

month sentence, imposed after he pleaded guilty of being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g), asserting that it is both procedurally and substantively unreasonable.

We disagree, and AFFIRM.

       The presentence report (PSR) stated regarding the instant offense:

       4. At approximately 9:35 p.m. on May 22, 2003, Milan Police Department (MPD)
       Lt. Terry Jones was advised by the MPD dispatcher that the defendant, Omie (Onnie)
       Nesbitt, a previously convicted felon, had been at the home of his ex-wife, Evie
       Nesbitt . . . in violation of an Order of Protection. Lt. Jones was further advised that
       Mr. Nesbitt was in possession of a firearm and that he had fired one or more shots
       inside the residence of Mrs. Nesbitt. Since the shot was fired, the defendant had fled
       the aforementioned residence in a gray Mazda car driven by his brother, Kenneth
       Nesbitt.

       *
        The Honorable Michael H. Watson, United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 08-5998
United States v. Nesbitt

       5. Shortly after receiving the aforementioned report, Lt. Jones observed a vehicle
       matching the description provided by Evie Nesbitt. . . . According to Lt. Jones[’]
       report, Omie Nesbitt exited the suspect vehicle and started advancing towards him.
       Lt. Jones then drew his weapon and ordered the defendant to get on the ground. Mr.
       Nesbitt refused to comply . . . and instead began walking backwards, in the direction
       of a small patch of woods . . . A short time later, Mr. Nesbitt did return to the scene
       of the vehicle stop, at which time he was placed under arrest. A search of the
       defendant’s person yielded two (2) live rounds of .38 caliber ammunition and one (1)
       fired .38 caliber shell casing. A search of the area into which Mr. Nesbitt had
       retreated on foot resulted in the discovery of two (2) firearms, . . . one (1) Arminius,
       Model HW38, .38 caliber revolver, . . . and one (1) Smith & Wesson, Model 10-8,
       .38 caliber revolver . . . .

       6. [T]he defendant voluntarily admitted ownership of the firearms . . . .

       7. Shortly after Mr. Nesbitt’s arrest . . . . Evie Nesbitt provided a sworn statement
       . . . [and] advised that Omie Nesbitt, against whom she had recently taken out an
       Order of Protection, had entered her home, while holding a firearm . . . pointed the
       weapon . . . and held it on her, while repeatedly telling her that he was going to kill
       her that night. Mr. Nesbitt refused to let her leave the residence. At one point, Mr.
       Nesbitt did fire one (1) shot . . . not [] in the direction of Evie Nesbitt. . . .
       ....
       9. Eventually . . . Kenneth Nesbitt [knocked on the door], instructed Omie to let go
       of Evie and to leave the residence with him. Omie complied . . . As he left the
       residence, Omie informed Evie Nesbitt that he would be back. Moments after . . .
       Evie Nesbitt called 911, ultimately resulting in the above-described vehicle stop and
       arrest. [PSR prepared June 3, 2008, at 4-6.]

The PSR categorized Nesbitt as an armed career criminal, as defined in U.S.S.G. § 4B1.4, and

calculated a total offense level of 31. PSR Worksheet C listed 17 prior convictions, resulting in 26

total criminal history points, which placed Nesbitt in criminal history category VI. Nesbitt’s

Guidelines range was 188 to 235 months of imprisonment.

       The PSR stated that Nesbitt has an 8th grade education, and that he and his three siblings grew

up in “an extremely dysfunctional home environment, which included frequent spouse abuse by their

chronically-alcoholic father.” Regarding his mental and emotional health, the PSR stated that
No. 08-5998
United States v. Nesbitt

extensive court-ordered psychological evaluation at the Federal Bureau of Prisons (BOP) in July

2004 revealed that Nesbitt “was in the extremely low range of intellectual functioning as compared

to his age peers, with an IQ of 51,” and that he was diagnosed with schizoaffective disorder, alcohol

abuse, and adult antisocial behavior. The PSR noted that before his current federal detention, Nesbitt

was committed to a mental health institution five times between January 28, 2003 and January 20,

2004, and that during the first four of those hospitalizations he suffered “command auditory

hallucinations, visual hallucinations, paranoid delusions, and suicidal and homicidal ideations.”

       The district court adopted the PSR’s Guidelines range calculation and sentenced Nesbitt to

235 months’ imprisonment, followed by 5 years of supervised release. The court declined defense

counsel’s request that it order Nesbitt be placed in a federal medical facility. This appeal ensued.

       “[A]ppellate review of sentencing decisions is limited to determining whether they are

‘reasonable.’” Gall v. United States, 552 U.S. 38, 46 (2007). “[C]ourts of appeals must review all

sentences . . . under a deferential abuse-of-discretion standard.” Id. at 41; United States v.

Grossman, 513 F.3d 592, 595 (6th Cir. 2008). The review is two-tiered: we must review for both

procedural and substantive error. Gall, 552 U.S. at 51.

       In this circuit, a sentence that falls within the Guidelines enjoys “a rebuttable presumption

of reasonableness.” United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006). Nevertheless, a

sentencing court must still “explain to the parties and the reviewing court its reasons for imposing

a particular sentence.” United States v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006).

                                  I. Procedural Reasonableness
No. 08-5998
United States v. Nesbitt

         Nesbitt asserts that his sentence is procedurally unreasonable because the district court either

failed to consider his severe mental health issues, or failed to adequately explain how its

consideration of the issue entered into its decision to sentence him at the high end of the Guidelines

range.

         Under Gall, 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 . . .” Gall, 552 U.S. at 51.

         Nesbitt’s position paper objecting to the PSR argued that his serious mental health conditions

were factors warranting a departure:

                  Given the fact that Defendant suffers from multiple serious mental health
         impairments as shown in the presentence report, a sentence within the recommended
         range is greater than necessary to address the statutory concerns. Defendant is in
         need of ongoing mental health treatment and should be housed in a mental health
         facility [hospital]. An extended incarceration by itself, will not address Defendant’s
         serious ongoing medical needs. All it will do is warehouse Defendant for that period
         of time. It is unlikely that Defendant will be able to take advantage of nor benefit
         from the programs offered by the Bureau of Prisons, given his mental retardation.
         ....
                  Defendant requests that he be recommended for placement in a Bureau of
         Prisons medical facility or hospital. [R. 84.]

Nonetheless, the Government is correct that Nesbitt’s counsel did not object to the court’s

calculation of Nesbitt’s sentence at the conclusion of the sentencing hearing, when the district court

asked counsel whether there were “any other issues that have been raised that I’ve not yet ruled upon

or any issues now presented that need ruling upon?” We thus review Nesbitt’s claim of procedural

unreasonableness for plain error. See United States v. Vonner, 516 F.3d 382, 385-86 (6th Cir. 2008)
No. 08-5998
United States v. Nesbitt

(en banc) (applying plain-error review because the defendant, after having been given opportunity

to object, had not expressly objected to the adequacy of the court’s explanation for the sentence at

the sentencing hearing).

       After hearing from counsel at sentencing, the district court noted its agreement with the

probation officer’s calculation of the Guidelines range, heard from Nesbitt, and then stated:

       THE COURT: Mr. Nesbitt, your case is an unusual one. What makes it unusual is
       that it’s perhaps the longest pending criminal case this court has ever had. Your case
       started in 2003 and here we are in 2008 and we’re still working on your case. That
       has been brought about as a result of numerous evaluations that we’ve had. You are
       probably the most evaluated defendant that this court has ever seen. I think there
       were at least three major evaluations. All those evaluations, Mr. Nesbitt, lead the
       court to conclude that you have some serious mental issues that have contributed to
       your life of crime. But the record before this court is that you are competent to
       proceed and were sane, or at least not insane, at the time of this offense. So that’s the
       only evidence this court has to proceed on.

              In deciding your sentence I have to look at several issues. One . . . factor I
       have to look at is the guideline range, and the guidelines in your case suggest that I
       should sentence you somewhere to a term of imprisonment of 188 to 235 months.
       But that’s not the only factor. I have to look at other factors.

               I have to look at the nature of this offense, and this was a serious crime, Mr.
       Nesbitt. It’s fortunate that someone wasn’t killed or seriously injured the night of
       this incident. Holding someone against their will in their house at gunpoint – or in
       a house at gunpoint is a serious crime.

               I also have to consider the history and characteristics of you, and you have a
       long and troubled history. You have 26 criminal history points, and I think that’s
       among the top two or three that I have ever seen. You may be the highest criminal
       history that this court has dealt with. Perhaps you’re not the top defendant, but
       you’re near the top. In addition, you have some 19 convictions that didn’t result in
       any criminal history points. So you’ve really got a lot more criminal history than 26
       points, but 19 of them didn’t result in any points. So you have a long, long history
       of criminal behavior.

                But what troubles me about yours is the nature of your criminal history. Now,
       a lot of your criminal history are disorderly conduct and public drunkenness and DUI,
No. 08-5998
United States v. Nesbitt

       but you have perhaps more assaults and batteries and aggravated offenses than this
       court has ever seen. You have been a very violent person. And it appears fortunate
       to me, Mr. Nesbitt, that someone hasn’t been more seriously injured or killed as a
       result of all your assaultive behavior. You are a very dangerous person.

               Now, it may be that you’re dangerous when you aren’t medicated, but when
       you’re out on the streets, you obviously are not being medicated because you have
       perhaps the most . . . lengthy violent history this court has seen in years. I have to
       take that into account in deciding what your sentence should be.

               I have to consider the availability of alternative sentences, and there are none
       in this case that would protect society and appropriately punish you other than
       incarceration.

               I have to consider the need to give you a sentence similar to that received by
       other people who have committed various offenses with similar backgrounds. It’s
       hard to do in your case, Mr. Nesbitt, because I haven’t seen many people with a
       similar background. But I don’t want to give you more time than they would get nor
       do I want to give you less time.

               I have to consider the need to protect society. And quite frankly, Mr. Nesbitt,
       the only way I can protect society is to keep you away from society.

               I have to send a message to other people that want to possess firearms after
       they’re convicted of a felony, and the message is that there’s a serious penalty
       attached to that.

              I am also going to take into account the fact that you have had a long history
       of mental illness, and that will be considered in the sentence as well.

               So taking all those factors into consideration, Mr. Nesbitt, given your long
       and unbroken chain of criminal activity, it’s my conclusion that a sentence of 235
       months in the custody of the Bureau of Prisons is the only thing that will protect
       society and appropriately punish you for this offense, which is enhanced by your long
       and violent history.

                Upon release from prison you’ll be placed on supervised release for five
       years.
       ....
              While you’re on supervised release . . . [y]ou’ll comply with . . . the following
       additional conditions:
       ....
No. 08-5998
United States v. Nesbitt

              That you participate in a program for mental health treatment as directed by
       the probation officer, including outpatient or inpatient, whatever is necessary.

               You’ll comply with all treatment conditions and/or recommendations as set
       forth by the approved mental health treatment provider, to include strict adherence
       to any prescribed medication regimen.
       ....
               I’m not going to make a specific recommendation about a hospital
       environment. The BOP knows Mr. Nesbitt’s background probably better than any
       inmate in the institutional set up. They have complete records on Mr. Nesbitt. The
       Bureau of Prisons will make the determination as to what type of incarceration or
       what level of supervision Mr. Nesbitt needs. [R. 94 at 42-47.]

       As the above-quoted sentencing colloquy demonstrates, the district court acknowledged and

clearly took into account Nesbitt’s long history of mental illness, his multiple evaluations, and his

need for medication, contrary to Nesbitt’s contention that the court failed to consider his severe

mental health issues. And the district court adequately explained how its consideration of those

issues played into its decision to sentence him at the high end of the Guidelines range. In doing so,

the district court noted that given Nesbitt’s protracted and extensive criminal history – which

included a number of assaultive and aggravated offenses – a sentence at the top of the Guidelines

range was needed to assure society’s protection, deter others, and appropriately punish him, while

also noting that it was taking into account his long history of mental illness.

       The district court fulfilled its obligation to “ adequately explain the chosen sentence to allow

for meaningful appellate review and to promote the perception of fair sentencing.” Gall, 552 U.S.

at 50. Nesbitt has not shown that any procedural error, plain or otherwise, occurred in the district

court’s imposition of the 235-month within-the-Guidelines sentence, so his procedural

unreasonableness claim fails.

                                 II. Substantive Reasonableness
No. 08-5998
United States v. Nesbitt

       Nesbitt also contends that his sentence is substantively unreasonable because the district

court “failed to truly consider” his history and characteristics, and because the sentence, which will

likely warehouse him for 24 1/2 years without access to needed mental health treatment, will not

address his mental illness. He asserts that “a shorter sentence, or one that involved serious mental

health treatment, would be a more adequate sentence,” and that a 235-month sentence is greater than

necessary to comply with the § 3553(a) factors.

        If the district court’s sentencing decision is procedurally sound, this court proceeds to

consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion

standard. Gall, 552 U.S. at 51. “A sentence may be substantively unreasonable where the district

court ‘select[s] the sentence arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to

consider pertinent § 3553(a) factors or giv[es] an unreasonable amount of weight to any pertinent

factor.’” United States v. Collington, 461 F.3d 805, 808 (6th Cir. 2006) (quoting United States v.

Webb, 403 F.3d 373, 383 (6th Cir. 2005)). “The touchstone for our review [for substantive

reasonableness] is whether the length of the sentence is reasonable in light of the § 3553(a) factors.”

United States v. Tate, 516 F.3d 459, 469 (6th Cir. 2008).

       Nesbitt does not argue that the district court selected his sentence arbitrarily or based the

sentence on impermissible factors. His argument as we understand it is that the court failed to give

enough weight to his mental health history and characteristics, while giving too much weight to his

criminal history.

       Although the district court declined Nesbitt’s counsel’s request to order Nesbitt placed in a

federal medical facility, it left the placement decision to the BOP because the BOP was most familiar
No. 08-5998
United States v. Nesbitt

with Nesbitt’s extensive mental health evaluations and treatment while in custody. Nesbitt cites no

authority to support the proposition that a sentence is substantively unreasonable by virtue of a

district court declining to order placement in a medical facility.

       After considering the parties’ arguments, hearing from Nesbitt, and considering the PSR, the

district court provided an analysis of the § 3553(a) factors, and set forth the reasoning behind its

determination to sentence Nesbitt at the high end of the Guidelines range. See colloquy, quoted

supra. As mentioned, the district court noted that given Nesbitt’s protracted and extensive criminal

history – which included a number of assaultive and aggravated offenses – a sentence at the top of

the Guidelines range was needed to assure society’s protection, deter others, and appropriately

punish him, while also noting that it was taking into account his serious mental health problems.

       “We do not require a rote recitation of § 3553(a) factors but rather an explanation of why the

district chose the sentence it did.” United States v. Smith, 474 F.3d 888, 892 (6th Cir. 2007). The

district court more than adequately explained why it chose the 235-month sentence.

       We conclude that the length of the sentence is reasonable in light of the § 3553(a) factors,

see Tate, 516 F.3d at 469, and that Nesbitt’s substantive unreasonableness claim thus fails.

       For the foregoing reasons, we AFFIRM.
