                           NOT RECOMMENDED FOR PUBLICATION
                                  File Name: 07a0510n.06
                                    Filed: July 19, 2007

                                               No. 06-1113

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
        Plaintiff-Appellee,                       )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
JOHN LYNN KAVO,                                   )    WESTERN DISTRICT OF MICHIGAN
                                                  )
        Defendant-Appellant.                      )
                                                  )    OPINION


        Before: MOORE and GILMAN, Circuit Judges; and FORESTER, District Judge.*

        RONALD LEE GILMAN, Circuit Judge. John Lynn Kavo, a Native American, pled

guilty to sexually assaulting his former girlfriend on an Indian reservation. On remand from a prior

appeal, the district court resentenced Kavo to 121 months of imprisonment, the same sentence that

he had originally received. He argues in this second appeal that his sentence is both procedurally

and substantively unreasonable because the district court gave too much weight to the Sentencing

Guidelines and failed to adequately take into account certain mitigating factors. For the reasons set

forth below, we AFFIRM the judgment of the district court.


                                          I. BACKGROUND




        *
          The Honorable Karl S. Forester, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
No. 06-1113
United States v. Kavo

        Kavo pled guilty in August of 2003 to sexually assaulting I.B., a former girlfriend of his, at

the Bay Mills Indian Community in Chippewa County, Michigan, in violation of 18 U.S.C.

§ 2241(a)(1). Because Kavo’s arguments address the underlying circumstances of the assault, and

because this court has already outlined the factual background in Kavo’s first appeal, we reiterate

our prior factual recitation here:

        After spending the evening at a local casino with the parents of the victim in this case
        (identified as “I.B.” in the indictment), the defendant was invited to come to their
        home “for drinks.” I.B., described as the defendant’s “former girlfriend,” was also
        at the casino with her parents and went to their home as well. At approximately
        5:30 a.m., I.B. announced she was leaving the gathering. Kavo convinced her to give
        him a ride to the residence he shared with his sister, but upon arriving at the home,
        the defendant attempted to kiss and fondle I.B. against her will. When she began
        honking the car horn to draw attention to the situation, Kavo forced himself into the
        driver’s seat and backed the vehicle into the driveway.

        Although the presentence report claims that Kavo then “forced” I.B. to get out of the
        car and enter his house, the defendant denied using any physical force and, according
        to the government, the victim “d[id] not recall how she got into the [defendant’s]
        home.” In any event, Kavo’s and I.B.’s entrance into the residence awoke the
        defendant's sister, who was sleeping in the living room. Once the sister returned to
        her bed, Kavo closed the door to that room and began kissing I.B. I.B., however,
        “started saying no, she wanted to go home.” At that point, the defendant picked up
        I.B., carried her downstairs to his basement bedroom, and, against I.B.’s wishes,
        removed the woman’s pants and underwear and digitally penetrated the victim’s
        vagina before she was able to escape and report the assault.

        Initially, Kavo told the authorities that the digital penetration was consensual. Two
        weeks later, however, “[h]e admitted he was aware the victim did not want to have
        sexual contact with him, but advised he did not think she would get as upset as she
        did, based upon his intoxicated state and their past relationship.”

United States v. Kavo, 128 F. App’x 447, 449 (6th Cir. 2005).

        At Kavo’s original pre-Booker sentencing hearing, the district court calculated his Guidelines

range to be between 121 and 151 months of imprisonment. Id. at 449. This range resulted from

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United States v. Kavo

Kavo’s criminal history category of I and his offense level of 32, which included a four-level

enhancement due to his abduction of I.B. Id. The court sentenced Kavo to 121 months of

imprisonment, the low end of Kavo’s then-mandatory Guidelines range. Id.

       Kavo appealed the application of the four-level abduction enhancement, but this court

concluded that the enhancement properly applied. Id. at 451-52. In light of the intervening Supreme

Court holding in Booker, however, which rendered the Sentencing Guidelines advisory, Kavo’s case

was remanded to the district court for resentencing. Id. at 453.

       On remand, the district court again sentenced Kavo to 121 months’ imprisonment. Kavo then

timely filed this second appeal, arguing that his sentence is both procedurally and substantively

unreasonable.


                                          II. ANALYSIS

A.     Standard of review

       We review sentences for reasonableness. United States v. Collington, 461 F.3d 805, 807 (6th

Cir. 2006). This standard has two components: procedural reasonableness and substantive

reasonableness. Id. at 808. “A sentence may be procedurally unreasonable if the district judge fails

to consider the applicable Guidelines range or neglects to consider the other factors listed in 18

U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without

such required consideration.” Id. In addition, a sentence may be “substantively unreasonable when

the district court selects the sentence arbitrarily, bases the sentence on impermissible factors, fails




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United States v. Kavo

to consider pertinent § 3553(a) factors or gives an unreasonable amount of weight to any pertinent

factor.” Id. (brackets and quotation marks omitted).

B.      Procedural reasonableness

        We note at the outset that the district court resentenced Kavo to 121 months’ imprisonment,

the low end of his sentencing range under the advisory Guidelines. Kavo does not challenge the

district court’s Guidelines calculation and we find no error in it, so the sentence carries a rebuttable

presumption of reasonableness. See Rita v. United States, No. 06-5754, 2007 WL 1772146, at *6

(U.S. June 21, 2007) (approving the Fourth Circuit’s application of a nonbinding, rebuttable

presumption of reasonableness for a within-Guidelines sentence, and noting that “in the mine run

of cases, it is probable that the [within-Guidelines] sentence is reasonable”); United States v.

Williams, 436 F.3d 706, 708 (6th Cir. 2006) (affording a rebuttable presumption of reasonableness

to a within-Guidelines sentence). Kavo attempts to rebut this presumption with three distinct

procedural arguments. Specifically, Kavo claims that the district court (1) failed to address his

mitigation arguments, (2) failed to consider his request for a variance, and (3) gave unreasonable

weight to the Guidelines in determining his sentence.

        Regarding Kavo’s first argument, the transcript of his second sentencing hearing reveals that

several related mitigation arguments were raised before the district court. Kavo argued that his

offense did not, in fact, result in serious bodily injury to I.B.; that, because no serious injury resulted,

the court should consider a departure for aberrant behavior; that the sexual act he perpetrated

involved digital rather than penile penetration; that his criminal history is “fairly limited”; that the

victim was abducted only a “short distance”; and that “little force” was used in the offense.

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No. 06-1113
United States v. Kavo

       In fact, the district court explicitly acknowledged nearly all of these mitigating factors before

sentencing Kavo. The court explained:

       I recognize that Mr. Kavo did not engage in behavior that resulted in lasting serious
       injuries to the victim. I recognize that his criminal background is all tied up with
       alcohol abuse. And I recognize that there are other ways to imagine an abduction
       precedent to a sexual assault occurring that would involve more danger, more
       likelihood of injury than the way in which this abduction factor present [sic]
       involved.

After calculating Kavo’s proper Guidelines sentence, the district court again emphasized the “lack

of serious lasting physical injury” involved in Kavo’s offense. Nevertheless, the court ultimately

held that 121 months of imprisonment was “sufficient to provide for punishment and deterrence,”

yet also “fair” and “not disproportionate.”

       These statements by the district court demonstrate that it explicitly took Kavo’s mitigation

arguments into account in sentencing him to a prison term at the low end of his Guidelines range.

This court has held that “[w]hen a district court adequately explains why it imposed a particular

sentence, especially one within the advisory Guidelines range, we do not further require that it

exhaustively explain the obverse—why an alternative sentence was not selected—in every instance.”

United States v. Gale, 468 F.3d 929, 940 (6th Cir. 2006) (emphasis omitted).

       Kavo next contends that the district court failed to take into account his argument for a

departure or variance on the basis of aberrant behavior. Under the Guidelines, a defendant may

qualify for an aberrant-behavior departure where he is charged with a single criminal offense that

was committed without significant planning, was of limited duration, and represents a marked

deviation from an otherwise law-abiding life. U.S.S.G. § 5K2.20. Kavo’s counsel properly


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United States v. Kavo

conceded at the resentencing hearing, however, that the Guidelines specifically preclude departing

on the basis of aberrant behavior in the case of sexual assaults such as Kavo’s. This is because

Kavo’s conviction under § 2241(a)(1) is deemed by the Guidelines to have involved “serious bodily

injury,” a circumstance under which the departure is unavailable. See U.S.S.G. §§ 5K2.20(c)(1) and

1B1.1 cmt. n.1(L). Although the district court did not state for the record that it considered a

variance on the basis of aberrant behavior, it explicitly took into account Kavo’s supporting

arguments that his crime involved little planning, that the victim did not sustain serious physical

injuries, and that Kavo’s criminal background was not extensive. No procedural error, therefore,

resulted.

        Kavo’s final procedural argument asserts that the methodology by which the district court

determined his sentence assigned too much weight to the Guidelines. This argument is refuted by

the district court’s express acknowledgment that

        the guidelines are advisory as calculated, and that the factors under Title 18, 3553(a)
        one through seven are to be adequately taken into account as well by a sentencing
        court in its discretion in imposing a sentence.

The court went on to explain its post-Booker sentencing methodology, which the court described as

calling for it

        to at least begin with consideration of a correctly calculated guideline range; then to
        determine whether there are any reasons under the guidelines themselves to depart
        either upward or downward. . . . And if there are to do it and further to try to
        examine whether there are any reasons to vary . . . from the . . . guidelines range for
        reasons that are contained in 3553 one through seven. And if there are to do it,
        whether it’s to vary up or to vary down from the . . . guideline range.




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United States v. Kavo

       Contrary to Kavo’s argument, this court has endorsed a methodology akin to that which the

district court employed here—using the Guidelines range as a “starting point” of analysis and then

proceeding to take the other § 3553(a) factors into account. See, e.g., United States v. Ferguson, 456

F.3d 660, 667 (6th Cir. 2006) (approving as reasonable a sentencing procedure in which the district

court “started with the Guidelines calculation” and then applied the other § 3553(a) factors). To the

extent that Kavo faults the district court for beginning its determination specifically at the middle

(rather than the bottom) of his applicable Guidelines range, this created no procedural error because

the court plainly took the entire range as well as the other § 3553(a) factors into account.

       Other § 3553(a) factors specifically addressed by the district court include Kavo’s history of

alcohol abuse, the nature and circumstances of his crime, the need to provide Kavo with treatment

for his alcohol abuse, and the need to provide adequate but not excessive punishment and deterrence.

The district court’s methodology thus fulfilled the procedural requirement of correctly calculating

Kavo’s Guidelines range and then “balanc[ing] that calculation against the other § 3553(a) factors.”

United States v. Borho, 485 F.3d 904, 908 (6th Cir. 2007). We therefore conclude that Kavo’s

sentence is procedurally reasonable.

C.     Substantive reasonableness

       Kavo argues that, due to the same mitigating factors mentioned above, his sentence exceeds

that which could be characterized as “sufficient, but not greater than necessary” to fulfill the goals

of sentencing. 18 U.S.C. § 3553(a). He cites no caselaw, however, in which this court has ever

overturned as substantively unreasonable a procedurally sound sentence imposed at the bottom end

of the applicable Guidelines range. Moreover, Kavo’s argument that his abduction of and sexual

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No. 06-1113
United States v. Kavo

assault on I.B. was not as bad as it might otherwise have been does not compel a finding of

unreasonableness here, particularly where at least part of that fortuity may be credited to I.B.’s timely

escape. Kavo’s mitigation arguments, in sum, fail to persuade us that his within-Guidelines sentence

is substantively unreasonable.


                                        III. CONCLUSION

        For all of the reasons set forth above, we AFFIRM the judgment of the district court.




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