                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0610n.06
                            Filed: October 10, 2008

                                           No. 07-3174

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA                               )
                                                       )
       Plaintiff-Appellee,                             )     ON APPEAL FROM THE UNITED
                                                       )     STATES DISTRICT COURT FOR
                                                       )      THE SOUTHERN DISTRICT OF
V.                                                     )         OHIO, AT COLUMBUS
                                                       )
                                                       )
MARK ANDREW NELSON,                                    )
                                                       )                   OPINION
       Defendant-Appellant.                            )
                                                       )
                                                       )


COLE and GIBBONS, Circuit Judges; FORESTER, Senior District Judge.*

       KARL S. FORESTER, Senior District Judge. This is an appeal of the district court’s

sentence of the defendant-appellant, Mark Andrew Nelson. Nelson pled guilty to false acquisition

of a firearm in violation of 18 U.S.C. § 924(a)(2) pursuant to a plea agreement. The district court

subsequently sentenced him to 120 months imprisonment, two years of supervised release, a $2,000

fine and a $100 special assessment. The district court applied an upward departure based on Chapter

5 of the Sentencing Guidelines resulting in a Guidelines calculation that was 33 months greater than

the applicable Guidelines range for the offense of conviction. Nelson argues on appeal that the


       *
          The Honorable Karl S. Forester, Senior United States District Judge for the Eastern
District of Kentucky, sitting by designation.

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sentence is procedurally and substantively unreasonable. Upon review of the record and applicable

law, we find that the district court did not err when it sentenced Nelson and will AFFIRM the

sentence.

I.     FACTUAL AND PROCEDURAL BACKGROUND

       On February 16, 2005, Nelson attempted to purchase a firearm from Robert Cook and

completed ATF Form 4473. Nelson was denied by the National Instant Criminal Background

System because he was under indictment for a felony. Despite knowing that he was prohibited from

purchasing and acquiring firearms, Cook transferred the gun to Nelson. Since 2005, Nelson has

enlisted various individuals to straw purchase firearms on his behalf. He then sold the firearms at

gun shows and out of his car. Undercover agents conducted several transactions with Nelson and

purchased 26 firearms, 9 of which were traced to Cook as the original firearms dealer.

       On November 8, 2005, Nelson met with a confidential informant who told Nelson that he had

prior felony convictions. Despite knowing that he was a convicted felon, the next day Nelson sold

firearms to the informant. Nelson made three other sales to the informant in December 2005, and

on December 28, 2005, Nelson made arrangements with the informant for the sale of $1,655 of

firearms. When Nelson arrived at the agreed sale location, ATF agents approached him. During

the transactions with the confidential informant, Nelson wore a bulletproof vest. At the last sale,

ATF agents found a loaded, nine-millimeter, semi-automatic pistol on the floor of his car on the

driver’s side, a loaded, .38 caliber revolver on the front passenger’s seat of his car and five more

firearms in the car.

       On August 8, 2006, pursuant to a plea agreement, Nelson entered a plea of guilty to making

a false statement in the acquisition of a firearm in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(2).


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Nelson was scheduled for sentencing on February 1, 2007. The plea agreement provided that the

base offense level was at least 12 and that the government reserved the right to argue that the offense

involved a machine gun which would result in a range 6 levels higher. It also provided that the

offense involved over 200 firearms, the highest number contemplated by the sentencing guidelines,

which resulted in a 10-level increase. The plea agreement also provided for a four-level increase

because Nelson possessed and transferred firearms with reason to believe that they would be used

or possessed in connection with another felony offense and a four-level increase for Nelson’s

aggravating role in the offense. Prior to the sentencing, the Probation Office completed a

presentence investigation report (“PIR”). In the PIR, the Probation Office determined Nelson’s total

offense level was 33 and recommended a sentence of 120 months. This calculation was based on

a base offense level of 18 rather than 12 because the STEN rifle recovered during the search of

Nelson’s residence was a machine gun. While the Guidelines calculated in the PIR provide for a

sentence of 135 to 168 months, the Probation Office recommended a sentence of 120 months

because 120 months is the statutory maximum for this offense of conviction. Nelson objected to the

PIR on three grounds. At the initial sentencing hearing, Nelson withdrew two of his objections and

the district court overruled the third objection. None of those objections is relevant to this appeal.

The district court also questioned at the initial hearing whether relevant conduct for Nelson’s offense

of conviction would encompass his possession of a machine gun. Upon posing this question, the

district court continued the hearing to allow the parties adequate opportunity to consider its question.

       Prior to the second sentencing hearing, the district court gave notice to the parties that if the

machine gun enhancement did not apply, it would consider an upward departure or variance based

on U.S.S.G. § 5K2.2 for significant physical injury, § 5K2.6 for creating an unusually dangerous


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situation and/or § 5K2.14 for significantly endangering public safety and 18 U.S.C. §§ 3553(a)(1)

and 3553(a)(2)(B) for the “number of guns involved in the offense of convictions, the danger to the

community and the extent and scope of the crime.” JA 21. At the second hearing, the Government

filed its Exhibit 1 listing the firearms purchased and/or sold by Nelson and information on where

those weapons were subsequently found. The Government’s Exhibit 1 was admitted without

objection and Nelson admitted the facts contained therein. JA 75-76.

       At the hearing, the parties informed the district court that they agreed that the machine gun

enhancement did not apply and the district court heard argument on the appropriateness of upward

departures pursuant to §§ 5K2.2, 5K2.6 and 5K2.14. After hearing argument, the district court

determined that the first two sections of Chapter 5 should not be applied but found that an upward

departure pursuant to § 5K2.14 was appropriate because Nelson’s crime significantly endangered

public health and safety. In support of this conclusion, the district court explained that the

Government’s Exhibit 1:

       [I]ndicates . . . the risk to the public was substantial and actual, not just a risk but
       there were actually people injured, and that all of this was something that was
       predictable given the method of sale, given the number of guns; and while I wouldn’t
       base the enhancement on this alone, the bulletproof vest worn by the defendant is
       another indication that he even knew that the matters he was involved in created a
       danger to public safety.

JA 86-87. Based on Chapter 5 of the Guidelines, the district court departed by adding 6 points which

resulted in an adjusted offense level of 33. The Guidelines imprisonment range for an offense level

of 33 is 135 to 168 months. Since a statutory maximum applied, however, the range could not

exceed the maximum of 120 months.

       Noting that the Guidelines are advisory, the district court heard arguments from the parties



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regarding the factors listed in 18 U.S.C. § 3553(a) and discussed them in its ruling. The district court

reviewed the nature and circumstances of the offense, noting that while there was a one-count

charge, there were in excess of 200 guns, each of which would essentially represent an additional

crime. JA 98. Further the district court noted that while the charged offense was completed when

Nelson completed the purchase of the firearm, Nelson continued committing crimes when he sold

the guns to others, including known felons.

        The district court also reviewed Nelson’s history and character noting that it “cut both ways.”

The district court found that Nelson should not be entitled to a pass for his service as a police officer

but that he should not be more severely punished either. JA 98-99. The district court looked at the

need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law

and provide just punishment for the offense and found that the offense of conviction was most

serious. JA 99. The court also looked at whether the sentence provided adequate deterrence to

criminal conduct and noted that there needed to be deterrence with regard to further criminal conduct

by Nelson and others. JA 99. The district court then considered protecting the public from further

crimes by Nelson and found that when Nelson was not in custody, he presented a great risk to the

public with regard to placing firearms in commerce. JA 99. The district court reviewed Nelson’s

need for education or vocational training, medical care or other correctional treatment, finding that

the Bureau of Prisons can provide for those conditions. JA 99-100. The district court considered

the types of sentences available and the range for the particular crime along with policy statements

issued by the Sentencing Commission. JA 100. Finally, the court reviewed the need to avoid

unwarranted sentencing disparities with defendants with similar records who have been found guilty

of similar conduct, noting that the case seemed to turn on what sentence Cook, a co-defendant, was


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to receive from the court. JA 100-101.

       After discussing all of the § 3553(a) factors, the district court found that the aggravated

nature of the offenses, the number of sales, the types of sales, the defendant’s past, and the fact that

Nelson wore a bulletproof vest (indicating that he knew of the dangerousness of the criminal conduct

that he was engaged in) outweighed the mitigating factors of Nelson being a first-time offender, not

having an extensive criminal past and not going to trial. JA 101. Accordingly, the district court

sentenced Nelson to the statutory maximum of 120 months. JA 101.

II.    JURISDICTION AND STANDARD OF REVIEW

       The district court had jurisdiction of this matter pursuant to 18 U.S.C. § 3231. This court has

jurisdiction over Nelson’s appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. “Courts of

appeals must review all sentences inside, just outside, or significantly outside the Guidelines range

under a deferential abuse-of-discretion standard.” Gall v. United States, — U.S. —, 128 S.Ct. 586,

591, 597, 169 L. Ed. 2d 445 (2007). Abuse of discretion occurs when the district court relies on

clearly erroneous findings of fact, improperly applies the governing law or uses an erroneous legal

standard. United States v. Lineback, 330 F.3d 441, 443 (6th Cir. 2003).

       An appellate court must follow a two-step analysis to determine whether the sentencing court

abused its discretion in imposing a sentence. First, the reviewing court must ensure that the district

court committed no procedural error, such as failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the § 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. Second, if the

district court’s sentencing decision is procedurally sound, the appellate court considers the


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substantive reasonableness of the sentence imposed under an abuse-of-discretion standard. The

appellate court should consider the totality of the circumstances, including the extent of any variance

from the Guidelines range. If the sentence is within the Guidelines range, the appellate court may,

but is not required to, apply a presumption of reasonableness; however, a presumption of

unreasonableness does not apply if the sentence is outside of the Guidelines range. The appellate

court may consider the extent of the deviation, but must give due deference to the district court’s

decision that the § 3553(a) factors, on a whole, justify the extent of the variance. The fact that the

appellate court might reasonably have concluded that a different sentence was appropriate is

insufficient to justify reversal of the sentencing court. Gall, 128 S.Ct. at 597. See also United States

v. Grossman, 513 F.3d 592, 595 (6th Cir. 2008); United States v. Erpenbeck, 532 F.3d 423, 430 (6th

Cir. 2008).

III.    DISCUSSION

        Nelson argues on appeal that his sentence is both procedurally and substantively

unreasonable. For the reasons set forth below, we disagree.

        A.      Procedural Challenges

        The district court determined that Nelson’s applicable Guidelines range for the one-count

indictment was 70 to 87 months of imprisonment, but concluded that a departure pursuant to §

5K2.14 applied, taking the range to 135 to 168 months.1 The district court noted the statutory

maximum of 120 months would supercede the higher calculated range. After it calculated the



       1
         This determination is a “Guideline departure” rather than a variance as it was based on
Chapter 5 of the Sentencing Guidelines and not on the § 3553(a) factors. See United States v.
Cousins, 469 F.3d 572, 577 (6th Cir. 2006) (discussing the difference between a departure and a
variance).

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Guidelines range, the district court discussed the § 3553(a) factors and announced a sentence of 120

months, determining that the mitigating factors were outweighed.

       Nelson’s procedural objection is that the Guidelines calculation that the district court

employed was improper. Specifically, Nelson objects to the enhancement of his sentence pursuant

to U.S.S.G. § 5K2.14 arguing that the upward departure amounts to improper double counting

because the danger to public safety alleged in the case was already accounted for in the Guidelines

provisions related to the offense of conviction.

       The Guidelines provisions related to the offense of conviction provide for punishment for

making a false statement in the acquisition of a firearm and provide for increases in levels for the

total number of firearms involved in the offense and for possession of firearms that are used in

connection with other felony offenses by the defendant or that are transferred or possessed with

knowledge that they will be used in connection with a felony offense. Both of these increases were

applied without objection resulting in an initial range under the Guidelines of 70-87 months, which

the district court properly acknowledged.

       Section 5K2.14, however, provides that a sentencing court may increase the range “to reflect

the nature and circumstances of the offense.” The departure is appropriate if “national security,

public health, or safety was significantly endangered.” Id. The district court distinguished the

offense of conviction, which had to do with obtaining firearms Nelson was not permitted to possess

based on false information given by Nelson, and Nelson’s additional conduct. The district court

noted that more than 200 firearms were involved in the offense and found that although Nelson

completed the charged offense when he received the firearms, he continued beyond that offense with

the sale of weapons to the confidential informant whom Nelson knew to be a convicted felon. The


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Government’s Exhibit 1 and Nelson wearing a bulletproof vest during the transaction with the

confidential informant, moreover, provide the basis for the departure pursuant to § 5K2.14 as these

facts demonstrate “the risk to the public was substantial and actual” and that such risk/danger was

“predictable.” Additionally, while the district court did not specifically recite these facts, the record

before the district court reflects that Nelson conducted multiple transactions with the informant and

at the last transaction Nelson carried loaded firearms in his car. These are legitimate justifications

for applying the departure.2 Accordingly, we find that the district court did not abuse its discretion

in departing upward under § 5K2.14.

        Nelson also argues that the district court did not consider certain § 3553(a) factors when it

sentenced him. While he classifies this argument as a “substantive” challenge, it is more correctly

classified as “procedural” because Nelson is arguing that the district court did not follow proper

procedure when it failed to consider one of the factors. Specifically, Nelson argues that the court

failed to consider his status as a police officer as a mitigating factor as such status subjects him to

a greater risk of harm while incarcerated. The district court specifically considered Nelson’s status

as a former police officer and found that it “cut both ways.” JA 98. The district court is not required

to consider whether he is at a greater risk for harm while incarcerated and there is no evidence in the



        2
         Under U.S.S.G. § 5K1.0(a)(3), “[a] departure may be warranted in an exceptional case,
even though the circumstance that forms the basis for the departure is taken into consideration in
determining the guideline range, if the court determines that such circumstance is present in the
offense to a degree substantially in excess of, or substantially below, that which ordinarily is
involved in that kind of offense.” Thus, while the district court departed for reasons separate
from the considerations of the Guidelines provisions related to the offense of conviction, a
further consideration of factors used to determine the Guidelines was appropriate in the departure
context if the case fell within § 5K2.0(a)(3). Nelson’s double-counting argument both
mischaracterizes the basis for departure here and wrongly assumes the impermissibility of double
counting in this context.

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record that Nelson would be at any greater risk of any supposed danger if he is incarcerated 70

months or 120 months. Moreover, defense counsel did not raise this issue at the hearing. It is not

incumbent on the district court to raise every conceivably relevant issue on its own initiative. See

Gall, 128 S.Ct. at 599.

        We find that the district court committed no procedural errors. As explained supra, the

district court properly calculated the Guidelines range and applied the departure. It also allowed both

parties to present arguments as to what they believed the appropriate sentence should be, considered

the § 3553(a) factors, acknowledged the advisory nature of the Guidelines, did not select erroneous

facts and thoroughly documented its reasoning for the selected sentence, including the upward

departure.

        B.      Substantive Challenges

        Nelson argues that the sentence is substantively unreasonable because (1) it was based on an

impermissible Guidelines calculation and (2) the court gave unreasonable weight to certain § 3553(a)

factors. While the procedural error review is abuse-of-discretion per se, the substantive review is

“far more ambiguous – it is an error so serious that the decision is not entitled to deference, just as

if the court had relied on a clearly erroneous finding of fact, clearly misapplied the law or applied

the wrong law.” United States v. Funk, 534 F.3d 522, 526 (6th Cir. 2008) (citing Lineback, 330 F.3d

at 443). The reviewing court must also be sure to grant the appropriate level of deference to the

district court’s decision. If it is an atypical case, outside the Guidelines “heartland” of cases, the

district court’s decision is entitled to the “greatest respect.” Id. If it is a “mine-run case,” however,

it warrants a closer review. Id. (citing Kimbrough v. United States, 552 U.S. –, 128 S.Ct. 558, 575,

169 L.Ed.2d 481 (2007)). “Gall made clear that even a significant departure could be warranted so


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long as the sentencing court, ‘[a]fter settling on the appropriate sentence, . . . adequately explain[s]

the chosen sentence to allow for meaningful appellate review and to promote the perception of fair

sentencing.’” Erpenbeck, 532 F.3d at 438 (quoting Gall, 128 S.Ct. at 597).

        Nelson asserts that his sentence is substantively unreasonable because the district court

improperly relied on a Guidelines departure pursuant to § 5K2.14. “The Guidelines policy statement

on departures, however, makes clear that departures are discretionary and a sentencing court ‘may

impose a sentence outside the range established by the applicable’ Guidelines when there are

circumstances of a kind or degree that are ‘not adequately taken into consideration’ under the

Guidelines.” Erpenbeck, 532 F.3d at 439 (quoting U.S.S.G. § 5K2.0).

        We conclude that the district court’s application of § 5K2.14 was not substantively

unreasonable. As discussed supra this section allows departure when “national security, public

health, or safety was significantly endangered.” The district court’s discussion details why it found

these requirements were met and the district court carefully explained the grounds for applying the

enhancement. Giving due deference to the district court’s reasoned decision, we cannot say that this

application was an abuse of discretion.

        Nelson also argues that the district court gave “unreasonable” weight to certain § 3553(a)

factors. We find that the court carefully balanced the factors and did not abuse its discretion in doing

so. From the district court’s detailed discussion of the facts specific to this case, we find it clear that

the district court considered all the concerns embodied in § 3553 and simply determined that the

departure pursuant to § 5K2.14 was appropriate.

        Additionally, Nelson argues that the sentence is unreasonable because the court did not give

adequate consideration to the factor listed in § 3553(a)(6) - disparity in sentences among defendants


                                                    11
convicted of similar crimes. First, Nelson argues that his sentence is unreasonable because one of

his co-defendants, Cook, who was in front of a different district judge, received a lower sentence.

“‘Subsection 3553(a)(6) is concerned with national disparities among the many defendants with

similar criminal backgrounds convicted of similar criminal conduct.’ This factor is designed to

‘ensure nationally uniform sentences among like offenders.’” United States v. Houston, 529 F.3d

743, (6th Cir. 2008) (quoting United States v. Simmons, 501 F.3d 620, 626 (6th Cir. 2007) (internal

citations omitted)). While this factor is concerned with national disparities, it is not inappropriate

for the sentencing court to consider disparities between the sentences of co-defendants as the district

court considered in this case.

        Nelson argues that the district court was given inaccurate information about Cook’s sentence

and, that, if the district court had accurate information, it might have altered its ruling. We find that

the district court did not have inaccurate information before it. At the second sentencing hearing,

the district court discussed the chance that Cook would receive a lesser sentence. The district court

was informed that Cook was “potentially looking at a maximum of 36 months.” JA 91. This was

represented as the maximum that Cook would receive, not a minimum or a definite sentence. The

district court reasoned that Cook receiving a lesser sentence would not create an unwarranted

disparity because Cook merited a downward departure for providing substantial assistance in the

investigation and prosecution of others, Nelson received more profit from the transactions and

Nelson, as a police officer, had specialized knowledge of firearms and the laws governing them. We

find that the district court considered the disparity factor.

        In his reply brief Nelson, for the first time on appeal, argues that the sentencing court failed

to consider the disparity between his sentence and other defendants across the nation. An appeals


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court will generally not hear issues raised for the first time in a reply brief. United States v. Crozier,

259 F.3d 503, 517 (6th Cir. 2001). This Circuit has been clear that an appellant cannot raise new

issues in a reply brief and can only respond to arguments made the first time in the appellee’s brief.

Nonetheless, we find that the district court “correctly calculated and carefully reviewed the

Guidelines range” thereby giving “significant weight and consideration to the need to avoid

unwarranted disparities.” Gall, 128 S.Ct. at 599. Giving appropriate deference to the district court’s

determination, we cannot say that the district court failed to consider any potential national disparity.

IV.     CONCLUSION

        Accordingly, the district court did not err in sentencing Nelson, and the decision of the

district court is AFFIRMED.




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