                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0342n.06
                                                                                          FILED
                                           No. 09-6118
                                                                                     May 20, 2011
                          UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )        ON APPEAL FROM THE
       Plaintiff-Appellee,                               )        UNITED STATES DISTRICT
                                                         )        COURT FOR THE EASTERN
v.                                                       )        DISTRICT OF TENNESSEE
                                                         )
CARL HALCOMB,                                            )
                                                         )                 OPINION
       Defendant-Appellant.                              )




BEFORE:        McKEAGUE and STRANCH, Circuit Judges; and MAYS, District Judge.*

       PER CURIAM. Defendant Carl Halcomb pleaded guilty to being a felon in possession of

a firearm, in violation of 18 U.S.C. § 922(g)(1). On September 10, 2008, he was sentenced to a

prison term of forty-six months. Defendant now appeals, contending the district court abused its

discretion by declining to grant a downward variance from the advisory Sentencing Guidelines range.

Defendant contends the sentence imposed is substantively unreasonable.

       There is no dispute that the district court correctly calculated the applicable advisory

Sentencing Guidelines range to be 46 to 57 months. Nor does defendant complain of any procedural

irregularity in the sentencing. Rather, defendant contends the district court erred in weighing the

sentencing factors set forth at 18 U.S.C. § 3553(a). He contends this error resulted in a sentence



       *
       Honorable Samuel H. Mays, Jr., United States District Judge for the Western District of
Tennessee, sitting by designation.
No. 09-6118
United States v. Halcomb

greater than necessary to comply with the purposes of sentencing. Specifically, defendant argues the

district court failed to give adequate weight to two considerations: his post-offense rehabilitation

efforts and his elderly parents’ dependence on him for care.

       The sentence imposed, within the advisory Guidelines range, is presumptively reasonable.

United States v. Haj-Hamed, 549 F.3d 1020, 1025 (6th Cir. 2008). In determining whether

defendant has rebutted this presumption, we review the sentence under the highly deferential abuse

of discretion standard. Gall v. United States, 552 U.S. 38, 51-52 (2007).

       Having duly considered the record, we find no error. It is clear that the district court did not

ignore evidence of defendant’s positive employment situation or of his infirm parents’ need for help.

The court determined, however, that these were not such exceptional circumstances as to warrant

a variance in light of defendant’s criminal history, which included prior convictions for aggravated

robbery and reckless homicide. Considering defendant’s history of violence and the fact that he was

found to be in possession of some fifteen firearms at the time of his arrest (six of which he admitted

owning), the court remained unpersuaded that defendant’s mitigating circumstances placed his case

“beyond the heartland.” The district court nonetheless showed a measure of leniency by imposing

a sentence at the low end of the Guidelines range. We find nothing arbitrary or substantively

unreasonable in the district court’s judgment.

       Defendant has cited Sixth Circuit rulings affirming lower courts’ imposition of shorter

sentences due to a defendant’s extraordinary family circumstances, United States v. Husein, 478 F.3d

318 (6th Cir. 2007); and due to a defendant’s extraordinary post-arrest rehabilitation, United States

v. Hairston, 502 F.3d 378 (6th Cir. 2007). In both cases, however, the operative dynamic was

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No. 09-6118
United States v. Halcomb

appellate deference to the sentencing court’s “special competence” in fashioning an appropriate

sentence. See Haj-Hamed, 549 F.3d at 1027-28 (upholding determination that family circumstances

were not so extraordinary as to justify departure or variance, and distinguishing Husein on this

basis); Hairston, 502 F.3d at 385-86 (noting reticence to substitute appellate court’s judgment for

that of district court in review for substantive unreasonableness); Husein, 478 F.3d at 328 (hesitating

to “second-guess” district court’s determination under abuse-of-discretion standard of review).

Indeed, if the district court had granted a downward variance in this case, we would be similarly

constrained to uphold the sentence absent a showing of abuse of discretion. This deference stems

from recognition of the district court’s “institutional advantage” in evaluating the individual case and

individual defendant under the § 3553(a) factors. Gall, 552 U.S. at 51-52.

        The presumptive reasonableness accorded to a sentence and the highly deferential standard

of review constrain us from substituting our judgment for that of the sentencing court. However, we

are mindful that courts may consider rehabilitation in granting a downward variance and this

defendant showed signs of rehabilitation including success at a skilled career, the support of his

employer, his sobriety, and his rendering of much needed care for his elderly parents. Recent

Supreme Court authority emphasizes the importance of encouraging and rewarding rehabilitation,

with the important goal of restoring offenders to complete freedom and useful citizenship. Pepper

v. United States, 131 S. Ct. 1229, 1239-43 (2011) (post-sentencing rehabilitation “may be highly

relevant to several § 3553(a) factors” and support downward variance) (relying on Williams v. New

York, 337 U.S. 241, 247 (1949) (in selecting an appropriate sentence, court must possess fullest

information possible concerning the defendant’s life and characteristics)).

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United States v. Halcomb

       Unfortunately for defendant, the district court in this case, unlike the district courts in Husein

and Hairston, after duly considering the evidence in support of his motion for variance, and after

hearing counsel’s argument and defendant’s allocution, elected to exercise its discretion to deny the

motion and impose a sentence within the advisory range.

       Because the sentence imposed has not been shown to be an abuse of discretion, we

AFFIRM.




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