                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0682n.06

                                           No. 10-5135

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                     FILED
                                                                                    Sep 26, 2011
UNITED STATES OF AMERICA,              )                                      LEONARD GREEN, Clerk
                                       )
      Plaintiff-Appellee,              )                 ON APPEAL FROM THE
                                       )                 UNITED STATES DISTRICT
v.                                     )                 COURT FOR THE EASTERN
                                       )                 DISTRICT OF TENNESSEE
TRACY BAILEY,                          )
                                       )
                                                                 OPINION
      Defendant-Appellant.             )
_______________________________________)


Before: MOORE and ROGERS, Circuit Judges; HOOD, District Judge.*

       KAREN NELSON MOORE, Circuit Judge. Tracy Bailey pleaded guilty to illegal

possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). A Presentence Report

prepared by the United States Probation Office concluded that, under the United States Sentencing

Guidelines (“U.S.S.G.”), Bailey’s offense level was twenty-one and his criminal history category was

VI. The Presentence Report therefore recommended a sentence between seventy-seven and ninety-

six months of imprisonment. The district court ordered a sentence of 120 months to be served

consecutively to Bailey’s prior fourteen-year state sentence for an unrelated offense. Bailey timely

appeals and argues that the sentence is unreasonable because the district court gave improper weight

to his mental-health issues and inadequate consideration to the state sentence that he was already




       *
       The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 10-5135
United States v. Bailey


serving. Because we conclude that the sentence imposed by the district court was not unreasonable,

we AFFIRM.

                                        I. BACKGROUND

       On April 10, 2008, Bailey went to the state probation office. R. 15 (Factual Basis for Plea).

Bailey had been convicted of robbery and was serving probation at the time of his visit. Id. The

state probation office contacted detectives from the Hamilton County Sheriff’s Office, who came and

arrested Bailey pursuant to outstanding state warrants for Attempted First Degree Murder and

Especially Aggravated Assault.1 Id. During a search of Bailey’s person incident to the arrest,

detectives found a Charter Arms .38 caliber revolver.2 Id. Bailey was thereafter indicted by a federal

grand jury for violating 18 U.S.C. § 922(g)(1), which prohibits individuals previously imprisoned

for more than one year from possessing a firearm. R. 1 (Indictment). Bailey entered a guilty plea

without a plea agreement. R. 20 (Dist. Ct. Order).

       The United States Probation Office prepared a Presentence Report (“PSR”) dated July 29,

2009, and distributed that report to the district court and counsel. PSR; R. 32 (Sent. Tr. 9/10/09 at

2-3). The PSR stated that Bailey’s total offense level was twenty-one and that his criminal history

category was VI. PSR at 5, ¶ 20 & 18, ¶ 42. It also stated that “the guideline range for imprisonment



       1
         Bailey subsequently pleaded guilty to lesser charges in state court on March 18, 2009. PSR
at 16; R. 33 (Sent. Tr. 1/21/10 at 5) (noting defense counsel’s statement that Bailey pleaded to “lesser
included offenses” than those listed in paragraph forty of the PSR).
       2
         The prosecution also alleged that the detectives found 0.7 grams of crack cocaine, but Bailey
did not admit to this fact. R. 34 (Rearraignment Hr’g Tr. at 19).

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United States v. Bailey


[was] 77 to 96 months” and, because the violation occurred while Bailey was on probation, the PSR

recommended that the sentence be “imposed consecutively” pursuant to Application Note 3(C) to

U.S.S.G. § 5G1.3. Id. at 23, ¶¶ 63-64. The PSR concluded that there were “no known mitigating

or aggravating circumstances concerning the offense or the defendant that would warrant a departure

from the advisory guideline range.” Id. at 24, ¶ 73. Neither party objected to the contents of the

PSR. R. 32 (Sent. Tr. 9/10/09 at 3).

       At the hearing on September 10, 2009, the district court remarked that “this is a case where

the Court might contemplate a nonguidelines sentence.” Id. at 2. The court also stated that “it

strikes the Court that [Bailey] may be a sociopath” and that “[t]here is no treatment for that at all.”

Id. at 11. The district court and counsel agreed that it would be best to continue the hearing pending

an evaluation of Bailey’s mental health. Id. at 10-12. An order to that effect was entered on

September 17, 2009. R. 23 (Dist. Ct. Order).

       In a report dated December 11, 2009, a mental-health evaluator concluded that “Bailey does

not suffer from a severe mental disease or defect” and “does not require inpatient hospitalization.”

R. 28 (Sealed Forensic Report at 1). The evaluator described Bailey as “an unreliable and evasive

historian” who provided contradictory information, id. at 4, and appeared to malinger on the

psychological evaluations performed, id. at 10-11. The evaluator noted that other records indicated

that Bailey was a victim of sexual abuse at age twelve, id. at 4, diagnosed with ADHD at age eight,

id. at 6, and suffers from sickle cell anemia, id. at 10. The evaluator indicated that even though

Bailey and his family members reported that he suffered from bipolar disorder, there were “no


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No. 10-5135
United States v. Bailey


records actually reflect[ing] such a diagnosis” and Bailey did not “endorse” or “display such

symptoms” of the disorder. Id. at 12. The evaluator concluded that Bailey was properly diagnosed

with antisocial personality disorder. Id. at 11. The evaluator also stated that “most clinicians do not

consider [personality disorders to be] a form of major mental illness” and that “psychotropic

medications . . . are less helpful in treating persons with personality disorders.” Id. at 14.

        On January 21, 2010, the district court held the second sentencing hearing. R. 33 (Sent. Tr.

1/21/10). The court sentenced Bailey to the statutory maximum of 120 months of imprisonment to

run consecutively to the fourteen-year state sentence that he was already serving. Id. at 26. In

support, the district court stated:

        The nature of this offense demonstrates a complete lack of respect for the law and
        refusal to abide by prior sentencing. You’re bringing a loaded gun into a probation
        office, an arm of the judicial system, where you were directed to report pursuant to
        an arrest that occurred less than three months before. This extreme disregard for the
        judicial system and the laws of society demonstrated by your conduct weighs in favor
        of a sentence outside of the guidelines.

        ...

                The Court believes that the long history of violations of the law along with
        the more recent escalation and dangerousness of these violations is of such concern
        that the Court believes that a sentence within the guideline range is not sufficient.
        The pattern of your committing crimes involves returning to criminal acts almost
        immediately after a prior charge. This demonstrates that you either have the inability
        to conform your conduct to the requirements of the law or an unwillingness to
        conform your conduct to the law.

        ...

        The escalating nature of these offenses combined with your continued access to
        firearms demonstrates that you pose a serious risk of committing future violent
        crimes and that the public would be in danger from you and your acts.

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No. 10-5135
United States v. Bailey


Id. at 23-25.

        Bailey timely appealed, challenging the reasonableness of his sentence.

                                             II. ANALYSIS

A. Standard of Review

        We review sentences for reasonableness “under a deferential abuse-of-discretion standard.”

Gall v. United States, 552 U.S. 38, 41 (2007). “In reviewing the reasonableness of a sentence

outside the Guidelines range, appellate courts may [] take the degree of variance into account and

consider the extent of a deviation from the Guidelines,” id. at 47, but must afford “due deference to

the district court’s decision that the § 3553(a) factors . . . justify the extent of the variance,” id. at 51.

        Bailey does not challenge the reasonableness of the district court’s sentence on procedural

grounds.3 Accordingly, we review his sentence for substantive reasonableness only.

B. Substantive Reasonableness of Sentence

        Even though the Guidelines are no longer mandatory, “a district judge must give serious

consideration to the extent of any departure from the Guidelines and must explain his conclusion that

an unusually lenient or an unusually harsh sentence is appropriate in a particular case with sufficient

justifications.” Id. at 46. “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


        3
        Bailey has not raised arguments as to any of the recognized grounds for procedural error,
which include: “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.” Gall, 552 U.S. at 51.

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No. 10-5135
United States v. Bailey


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

United States v. Martinez, 588 F.3d 301, 328 (6th Cir. 2009) (alternation in original; internal

quotation marks omitted).

        Bailey argues that his sentence is unreasonable because the district court: (1) gave

unreasonable weight to his mental-health diagnosis; and (2) failed properly to consider the fourteen-

year state sentence Bailey was already serving. We conclude that the district court did not abuse its

discretion in imposing the 120-month sentence.

        In deciding on the appropriate sentence, the district court discussed Bailey’s antisocial

personality disorder diagnosis. R. 33 (Sent. Tr. 1/21/10 at 23-24). Despite acknowledging counsel’s

assertion that individuals with antisocial personality disorder “get better” with age, the district court

expressed concern about the uncertainty as to when manifestations of the disorder might subside.

Id. at 23-24 (“I’ll take her word for it and assume that as you get older that some of the

characteristics of being a sociopath will diminish, if not disappear altogether. But you are a young

man, and we have no idea when that might take place. One of the frustrating aspects of being a

sociopath is that there is really no treatment that is available that helps.”). The district court

ultimately deemed the 120-month sentence appropriate in light of the fact that Bailey’s “reckless and

unpredictable conduct poses a continuing threat to society.” Id. at 25.

        This conclusion is not unreasonable. The district court considered Bailey’s mental health in

light of one of the § 3553(a) factors: public safety. We have previously upheld sentences when a

district court found an individual’s mental-health condition, and in particular antisocial personality


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No. 10-5135
United States v. Bailey


disorder, increased the risk of recidivism and thereby the danger to the public. See United States v.

Young, 310 F. App’x 784, 796 (6th Cir. 2009) (unpublished opinion) (upholding sentence where

district court found link between defendant’s mental-health issues and risk of recidivism); see also

United States v. Clowers, 280 F. App’x 496, 502 (6th Cir. 2008) (unpublished opinion) (rejecting

argument that 360-month sentence was unreasonable because “the district court failed to adequately

consider the benefits of treatment”). Moreover, the district court based its conclusion not just on

Bailey’s mental-health diagnosis but also his extensive criminal history, which had grown

increasingly violent over time. R. 33 (Sent. Tr. 1/21/10 at 25). We have recognized that it may be

“reasonable for [a] district court to place substantial weight on [a defendant's] criminal history in

reaching its sentencing determination.” United States v. Webb, 403 F.3d 373, 384 (6th Cir. 2005).

In addition, the district court attempted to tailor the sentence to Bailey’s mental-health needs by

“recommend[ing] that the defendant be evaluated for mental health treatment while incarcerated”

and “participate in a program of mental health treatment.” R. 33 (Sent. Tr. 1/21/10 at 26-27). The

district court did not give unreasonable weight to Bailey’s mental-health diagnosis.

       Bailey also argues that the district court failed to consider the reasonableness of the sentence

in light of the fourteen-year state sentence Bailey was already serving.4 At the sentencing hearing,

defense counsel brought to the district court’s attention the fact that Bailey was already serving a

fourteen-year state sentence and therefore would be “looking at being out of his twenties when he’s



       4
        On appeal Bailey has not challenged the district court’s determination that the 120-month
sentence run consecutively to the fourteen-year state sentence.

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No. 10-5135
United States v. Bailey


released, no matter the sentence” for the present offense. Id. at 18. The government noted that

Bailey was eligible for parole once he served thirty percent of the state sentence. Id. at 21. The

district court nevertheless concluded that in light of Bailey’s escalating offenses, which had become

“more and more dangerous and frequent . . . a sentence of 96 months [was] inadequate to provide

the public with sufficient protection [and] . . . to demonstrate to [Bailey] the seriousness of [his]

conduct and to promote respect for the law.” Id. at 25-26. Thus, the district court considered and

rejected Bailey’s argument in light of Bailey’s extensive violent criminal activities. By grounding

its reasoning in the § 3553(a) factors, the district court adequately justified the imposition of the 120-

month sentence despite the fourteen-year state sentence. “[W]e are satisfied that the sentence

imposed by the district court, although certainly harsh, is not unreasonable.” United States v.

Herrera-Zuniga, 571 F.3d 568, 591 (6th Cir. 2009) (internal quotation marks omitted).

                                         III. CONCLUSION

        Because the district court’s sentence of 120 months of imprisonment was not unreasonable,

we AFFIRM the judgment of the district court.




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