               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 12a0095n.06

                                          No. 10-1878

                         UNITED STATES COURT OF APPEALS
                                                                                        FILED
                              FOR THE SIXTH CIRCUIT
                                                                                   Jan 26, 2012
                                                                             LEONARD GREEN, Clerk
UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                ON APPEAL FROM THE
                                       )                UNITED STATES DISTRICT
v.                                     )                COURT FOR THE WESTERN
                                       )                DISTRICT OF MICHIGAN
BRYAN CARTHEN,                         )
                                       )
      Defendant-Appellant.             )                       OPINION
_______________________________________)


BEFORE: MERRITT and MOORE, Circuit Judges; and MAYS, District Judge.*

       Mays, District Judge. Defendant-Appellant Bryan Carthen (“Carthen”) appeals his 96-

month sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).

Carthen argues that, although the district court imposed a sentence within the advisory guideline

range, his sentence was substantively unreasonable because it was excessive and failed to

accommodate his debilitating medical problems. For the following reasons, the judgment of the

district court is AFFIRMED.

                                      I. BACKGROUND

       Carthen was arrested after a June 6, 2009 armed carjacking in Lansing, Michigan. Daniel

McConnell (“McConnell”), the victim of the carjacking, reported that two unidentified men had

abducted him at gunpoint in the parking lot of his apartment complex. McConnell was physically

       *
       The Honorable Samuel H. Mays, Jr., United States District Judge for the Western District
of Tennessee, sitting by designation.
No. 10-1878
United States v. Carthen


assaulted and forced into the trunk of his 2004 Chrysler Sebring. The assailants drove off with

McConnell in the trunk, but he escaped after activating the trunk release and leaping from the car.

       On July 11, 2009, Shannon Tett-Davis (“Tett-Davis”) told police that Carthen, her boyfriend,

had possessed a Chrysler Sebring since June 2009. Tett-Davis made her statement while police were

investigating her report that Carthen had threatened to “blow her head off.” On July 13, 2009, the

Lansing Police Department located McConnell’s Chrysler Sebring. Carthen’s neighbor was driving

it. The neighbor told police that the car belonged to Carthen, but that Carthen could not drive

because he was on probation. A short time later, officers found Carthen riding a bicycle. They took

him into custody after finding 3.4 grams of marijuana.

       Carthen’s mother consented to a search of her home, where Carthen also lived. Police found

a .38 caliber revolver inside his bedroom closet. They brought Carthen to his mother’s home, where

they interviewed him after advising him of his Miranda rights. Carthen claimed that the Sebring and

the revolver belonged to his friend Bryan Bradford (“Bradford”). Carthen denied knowing that the

car was stolen. He told police he had taken the revolver from the car and hidden it in his bedroom

after agreeing to watch the car.

       Carthen’s story changed on August 28, 2009. He told ATF special agents that, on June 6,

2009, he had met Bradford and Shay Inu, another friend, at a Lansing nightclub. Carthen claimed

that the Chrysler Sebring belonged to one of his friends, but that he had agreed to watch the car for

the evening. He claimed that Bradford had told him on June 7, 2009, that the car was stolen.




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United States v. Carthen


Carthen maintained that Bradford had removed the .38 revolver from the Sebring and had given it

to him in exchange for $100.

       After arresting Carthen, police learned he had several prior convictions, including two felony

convictions for home invasion. Carthen was indicted on November 5, 2009, and charged with being

a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). (See Indictment, ECF No. 1.)

After executing a written plea agreement, Carthen pled guilty. (See Plea Agreement, ECF No. 13.)

       During his presentence interview, Carthen admitted his prior statements were untrue. He

admitted he was present at the carjacking and saw friends force McConnell into the trunk of the

Sebring. Carthen denied direct involvement in the carjacking. Later, during a proffer-protected

polygraph, Carthen admitted he had taken an active role in the carjacking. He admitted forcing

McConnell into the trunk at gunpoint using the .38 revolver. Carthen claimed to have purchased the

revolver in May 2009 and to have brought it to the nightclub on June 6, 2009. He maintained that

he had accepted $200 from Bradford to help collect a drug debt from McConnell.

       The Presentence Report (“PSR”) provided that Carthen’s total offense level was 21 and that

his criminal history category was VI, yielding an advisory guideline range of 77-96 months. (PSR

¶ 101.)    The PSR noted that an upward departure might be warranted under U.S.S.G.

§ 4A1.3(a)(4)(B), given Carthen’s “patternistic history of violent, aggressive, assaultive, and

confrontational behavior.” (Id. ¶ 111.) The PSR noted that an upward variance might be warranted

because of Carthen’s violent criminal history and the “disturbing” nature of the carjacking. (Id.




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United States v. Carthen


¶¶ 112, 113.) The PSR recommended that the district court impose a sentence of 114 months, which

was above the guideline range.

       At Carthen’s July 1, 2010 sentencing hearing, the parties agreed that Carthen’s advisory

guideline range was 77-96 months. (Sent. Tr. 4-5, ECF No. 27.) The parties also stipulated that, in

determining the appropriate sentence, the district court should not consider the proffer-protected

information about Carthen’s involvement in the carjacking. (Id. 5-7.) Carthen’s counsel argued that

the district court should impose a sentence below the guideline range because of Carthen’s difficult

childhood and his poor mental and physical health. (Id. 7.) Carthen argued that a sentence of less

than 77 months would be sufficient if he received counseling for anger management. (Id.) Carthen

proffered letters from his physicians about his sickle cell anemia. (See Def.’s Mem. Ex. A.)

Although one doctor suggested that Carthen would benefit from release on bond, his other doctor

believed that Carthen’s condition could “be monitored and treated on an as needed basis whether

incarcerated or at home.” (See Def.’s Mem. Ex. A. 2/16/10 Chamathy Letter.) Carthen also

challenged the conclusions of the PSR, which recommended a sentence above the guidelines because

of his criminal history. (Sent. Tr. 10-11.)

       After considering the arguments of both parties, the district court imposed a 96-month

sentence, which was at the high end of the advisory guideline range. The court sought to impose a

sentence that was sufficient but not greater than necessary to comply with the purposes of the

sentencing statute. The court specifically noted that 18 U.S.C. § 3553(a) required it to promote

respect for the law by imposing a sentence that reflected the seriousness of the offense, the need to


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United States v. Carthen


promote deterrence, and the need to promote rehabilitative opportunities and treatments, as well as

to protect the public and promote respect for the law. (Sent. Tr. 18-19.)

       The district court discussed and rejected Carthen’s arguments for a variance based on his

difficult childhood, his continuing and serious medical problems, his mental health, and his lack of

economic opportunities. (Sent. Tr. 19-20.) The court concluded that Carthen’s circumstances did

not warrant a downward variance because they were neither unique nor unusual. The court rejected

Carthen’s argument for a below-guideline sentence and concluded that counseling would not resolve

his issues in less than 77 months. (Id. 20-21.) Finally, the court rejected the argument that a

sentence below the guidelines would be more consistent with the sentence Carthen would have

received under Michigan’s advisory guidelines. (Id. 21.) The court found that prosecuting Carthen

at the federal level was a reasonable allocation of law enforcement resources and in the interest of

public safety and accountability. (Id.) Ultimately, the court denied Carthen’s request for a

downward variance, stating that it did not rely on any information about Carthen’s involvement in

the carjacking. (Id. 21-22.)

       Although a “harder question,” the district court declined to impose an above-guideline

sentence. (Id. 22.) The court noted Carthen’s “really unusually significant” criminal history, which

included numerous incidents of violence. (Id. 23.) In addition to five juvenile incidents, the district

court considered Carthen’s prosecutions for malicious destruction of property, domestic violence,

and home invasions—incidents that involved “violent, assaultive, loud, [and] angry behavior that

leads to people getting hurt.” (Id. 24-25.) Although characterizing the question of varying upwards


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United States v. Carthen


as a “very close call,” the court declined to exercise its authority and sentenced Carthen to 96

months. The district court noted that the sentence was at the high end of the guideline range but said

that, in its view, Carthen was “in some sense getting a break.” (Id. 26.)

                                        II. JURISDICTION

        The district court had jurisdiction under 18 U.S.C. § 3231. Carthen filed a notice of appeal

on July 2, 2010. (See ECF No. 40). This Court has jurisdiction under 18 U.S.C. § 3742.

                                 III. STANDARD OF REVIEW

        Challenges to the substantive reasonableness of a sentence are reviewed for abuse of

discretion. United States v. Simmons, 587 F.3d 348, 358 (6th Cir. 2009). “[A] sentence may be

substantively unreasonable ‘when the district court selects the sentence arbitrarily, bases the sentence

on impermissible factors, fails to consider pertinent § 3553(a) factors or gives an unreasonable

amount of weight to any pertinent factor.’” United States v. Borho, 485 F.3d 904, 908 (6th Cir.

2007) (quoting United States v. Collington, 461 F.3d 805, 808 (6th Cir. 2006)). A sentence within

the guideline range is presumptively reasonable. Simmons, 587 F.3d at 365; see also United States

v. Vonner, 516 F.3d 382, 389-90 (6th Cir. 2008) (en banc) (“[D]istrict courts . . . deserve the benefit

of the doubt when we review their sentences and the reasons given for them.”). When a sentencing

judge’s determination falls within the guideline range, “that double determination significantly

increases the likelihood that the sentence is a reasonable one.” Rita v. United States, 551 U.S. 338,

347 (2007); accord Simmons, 587 F.3d at 365. Proving substantive unreasonableness is “no small

burden and [the Court] will not generally ‘second guess’ sentences on substantive grounds when they


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United States v. Carthen


fall in the range prescribed by the Guidelines.” Simmons, 587 F.3d at 365 (quoting United States

v. Davis, 537 F.3d 611, 618 (6th Cir. 2008)).

                                          IV. ANALYSIS

       The gravamen of Carthen’s argument is that the district court abused its discretion “because

the facts are so clear [] that a prison term of no more than 77 months is sufficient to punish the

Defendant here based on the § 3553(a) factors.” (Appellant Br. 10.) Carthen argues that his physical

and mental ailments, which include sickle cell anemia and anger management, “demonstrate that [he]

requires significant medical evaluation and care.” (Id. 11.) Carthen recognizes the seriousness of

his offense and the extensiveness of his criminal history, but he argues that the district court’s need

to protect the public “can be addressed based on a prison term of less than 96 months.” (See id.)

A. A 96-Month Sentence is Substantively Reasonable

       “[M]ere allegation that the sentence imposed is greater than necessary to achieve the goals

of punishment outlined in § 3553(a) is insufficient to rebut the presumption of reasonableness.”

United States v. Dexta, 470 F.3d 612, 616 (6th Cir. 2006). Without additional facts showing that the

district court’s sentence was unreasonable, “[t]he 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 § 3553(a) in all relevant respects.” Id. (quoting United States

v. Jackson, 466 F.3d 537, 540 (6th Cir. 2006)).

       Despite Carthen’s broad allegation that his sentence was substantively unreasonable, there

is no evidence that the district court selected his sentence “arbitrarily, based its determination on


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United States v. Carthen


impermissible factors, disregarded any relevant concern, or gave unreasonable weight to any of the

§3553(a) factors.” Simmons, 587 F.3d at 365. The district court weighed each § 3553(a) factor and

rejected Carthen’s argument for a downward variance. (See Sentencing Tr. 19-21.) According to

the district court,

        I have considered and thought about [Carthen’s] motion for a downward variance,
        and I do not intend to grant that. I do not think that this is a case that warrants a
        variance below the guideline range. The bases in the motion, most of which are
        reiterated here in one form or another, begin to focus understandably on what was a
        difficult youth for Mr. Carthen. There’s no dispute on that. He had medical
        problems that are continuing and are serious, particularly at times. He has ongoing
        mental health issues that require treatment. He had a difficult family setting to say
        the least. He didn’t have much economic or social opportunity. And, in fact, his
        education experience was also quite difficult . . . And the conduct here is what I am
        focusing on. The background, the causes and effects, those things I can take into
        account, and I can and will take that into account overall in assessing where within
        the guideline range an appropriate sentence is, but I don’t think anything so
        significant here is of record that would warrant a variance downward.

(Sentencing Tr. 19-20.) The law of this circuit distinguishes between those sentences “that fall

within a correctly calculated range and those that fall outside of it. Those sentences falling into the

former category, such as that imposed on [Carthen], are entitled to a rebuttable presumption of

reasonableness.” United States v. Trejo-Martinez, 481 F.3d 409, 413 (6th Cir. 2007); see also

United States v. Thompson, 586 F.3d 1035, 1037-38 (6th Cir. 2010) (properly calculated sentences

are accorded a rebuttable presumption of reasonableness); United States v. McGee, 494 F.3d 551,

554 (6th Cir. 2007). Carthen does not rebut the presumption. Instead, he presents arguments that

the district court considered but rejected. He does not identify any facts suggesting that the district

court gave inappropriate weight to a § 3553(a) sentencing factor, or that his sentence was improper


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No. 10-1878
United States v. Carthen


in other respects. Carthen’s desire for a more lenient sentence is “insufficient to justify [] disturbing

the reasoned judgment of the district court.” Id.

B. The District Court Reasonably Considered Carthen’s Medical History

        Carthen contends that the district court abused its discretion under § 3553(a)(2)(D) because

the court did not vary downward to reflect his medical needs. Section 3553(a)(2)(D) provides that

a district court must consider “the need for the sentence imposed—to provide the defendant with

needed . . . medical care.” Carthen argues that his 96-month sentence, given his health, is excessive

and does not provide for adequate medical treatment. He bases his argument on a letter from his

treating physician, who said that he needed direct contact with Carthen to provide proper treatment.

(See Ex. A.)

        The letter from Carthen’s physician tells only part of the story. Although one of Carthen’s

physicians claimed to need direct contact to treat Carthen’s sickle cell anemia, the other physician

said that Carthen’s condition could be treated in prison. (See Ex. A, Chamarthy Letter). The district

court considered both letters and recommended that Carthen be placed in an appropriate facility. In

other words, “[t]he district court [] addressed and took into account each argument that [Carthen]

raised . . . specifically [relating to] his medical condition.” United States v. Clark, 469 F.3d 568, 571

(6th Cir. 2006). Once the court had considered Carthen’s health conditions, “it had discretion to vary

or depart from the Guidelines range because of those conditions and refused to do so.” United States

v. Carpenter, 359 F. App’x 553, 558 (6th Cir. 2009) (unpublished opinion). Carthen has not




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United States v. Carthen


identified any relevant facts that the district court failed to consider in imposing his sentence. The

court’s refusal to vary downward was not an abuse of discretion. See Clark, 469 F.3d at 571.

C. The Decision to Bring Federal Charges Against Carthen Was Appropriate

       The Equal Protection Clause prohibits selective enforcement of laws based on race, religion,

or other arbitrary classification. See United States v. Batchelder, 442 U.S. 114, 125 n.9 (1979);

accord United States v. Allen, 160 F.3d 1096, 1108 (6th Cir. 1998). Carthen would have faced a

guideline range of 15-21 months for being a felon-in-possession in Michigan, compared to 77-96

months under federal law. Based on that disparity, Carthen argues that charging him in federal rather

than state court produced an arbitrary sentence and was fundamentally unfair. (Appellant Br. 12.)

       Carthen’s argument would limit prosecutorial discretion inappropriately. United States v.

Smith, 510 F.3d 603, 609 (6th Cir. 2007); see also United States v. Allen, 954 F.2d 1160, 1166 (6th

Cir. 1992). When a prosecutor has probable cause to believe that an accused has committed an

offense defined by statute, “decisions regarding whether to prosecute and what charges to file

generally rest within the prosecutor’s discretion.” United States v. Brimite, 102 F. App’x 952, 955

(6th Cir. 2004) (unpublished opinion); see also Allen, 954 F.2d at 1166. The baseline for judging

selective prosecutions is whether decisions to file and pursue charges were based on a defendant’s

race, sex, religion, or exercise of a statutory or constitutional right. Allen, 954 F.2d at 1166.

       Subjecting a defendant to federal rather than state law because of higher penalties is not

“anything new.” See Brimite, 102 F. App’x at 955. “Just as a defendant has no constitutional right

to elect which of two applicable [] statutes shall be the basis for his indictment and prosecution[,]


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United States v. Carthen


neither is he entitled to choose the penalty scheme under which he will be sentenced.” Batchelder,

442 U.S. at 125 (rejecting a defendant’s challenge to his prosecution and sentencing under a federal

statute that carried a higher penalty than a statute that carried a lower penalty). The prosecutors here

had probable cause to believe that Carthen was a felon-in-possession. Officers found a .38 revolver

in his bedroom closet. He had previously been charged and convicted of separate felonies. Based

on that information, prosecutors concluded that charging Carthen under federal law was appropriate.

That state and federal penalties differed is an insufficient basis to challenge his sentence. “The

prosecutor may properly base his decision on the penalties available upon conviction when

determining what offense will be charged against a defendant.” Allen, 954 F.2d at 1166 (citing

Batchelder, 442 U.S. at 125).

                                         V. CONCLUSION

        The district court did not abuse its discretion when it sentenced Carthen within the guidelines

to 96 months in prison. The judgment of the district court is AFFIRMED.




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