                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0423n.06

                                           No. 11-3717
                                                                                            FILED
                             UNITED STATES COURT OF APPEALS                            Apr 17, 2012
                                  FOR THE SIXTH CIRCUIT                         LEONARD GREEN, Clerk
UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )
                                                     )
v.                                                   )       ON APPEAL FROM THE
                                                     )       UNITED STATES DISTRICT
MATTHEW DAVISON,                                     )       COURT FOR THE SOUTHERN
                                                     )       DISTRICT OF OHIO
       Defendant-Appellant.                          )


       Before: KEITH, MARTIN, and GIBBONS, Circuit Judges.


       PER CURIAM. Matthew Davison pled guilty to one count of possessing a non-registered

firearm in violation of 26 U.S.C. §§ 5861(d), 5871. On June 28, 2011, he was sentenced to 120

months of imprisonment, to be followed by three years of supervised release. Davison filed a timely

appeal from that judgment.

       Davison was arrested after sheriff’s deputies found a 9mm pistol in Davison’s waistband

during a pat-down search. During a warrant-based search of Davison’s residence, deputies found

seventy-two firearms, including an unregistered shotgun, the possession of which formed the basis

of Davison’s conviction.

       Davison argues that his sentence is procedurally unreasonable because the district court relied

on facts that were not contained in his presentence report and that were not related to him or his

current offense. In reviewing this argument, we “ensure that the district court committed no

significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,
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selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen

sentence.” Gall v. United States, 552 U.S. 38, 51 (2007).

       Davison relies on the following exchange that took place between the district court and the

prosecutor at his sentencing hearing:

               THE COURT: Could you refresh my memory how this all came to your
       attention?
               MR. DOMINGUEZ: Your Honor, it boils in together with another case
       . . . which involved a law enforcement officer being shot. But the facts and
       circumstances surrounding this case is [sic] on the date of the offense alleged in
       Count 1, Mr. Davison and I believe his son was in a vehicle . . . . Law enforcement
       officers . . . saw some suspicious activity and what appeared to be Mr. Davison
       injecting his son with what was later determined to be heroin. A weapon was found
       on his person, some investigation ensued, information was developed based on
       intelligence in the other case where a firearm was found in Mr. Rauch’s residence.
       And the two cases running together -- as Mr. Rauch is alleged to have shot a law
       enforcement officer with a firearm. Those cases were taken seriously by the ATF,
       and that’s why we’re here today.

       Davison argues that it was improper for the prosecutor to introduce these facts and that it was

error for the district court to rely on them. However, the prosecutor was merely responding to the

district court’s inquiry, and the court later clarified the prosecutor’s response as follows:

              THE COURT: So the other case is related how? Did one of his firearms
       wind up being a firearm used to shoot the officer?
               MR. DOMINGUEZ: No, Your Honor. But one or more of his firearms were
       found in a house which had over a hundred firearms, several rounds of ammunition,
       that type of thing. . . .

The prosecutor plainly advised the court that Davison’s firearms had not been used in the officer’s

shooting and there was no further mention of the shooting during the sentencing hearing. Instead,

the court properly considered the sentencing guideline range and the other sentencing factors that

are listed in section 3553(a). There is nothing in the record to show that the district court relied on

the prosecutor’s reference to the shooting when it determined Davison’s sentence.

       The district court’s judgment is affirmed.
