                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0545n.06

                                            No. 07-3655
                                                                                          FILED
                           UNITED STATES COURT OF APPEALS                             Aug 06, 2009
                                FOR THE SIXTH CIRCUIT                            LEONARD GREEN, Clerk



UNITED STATES OF AMERICA,                                 )
                                                          )        ON APPEAL FROM THE
       Plaintiff-Appellee,                                )        UNITED STATES DISTRICT
                                                          )        COURT     FOR    THE
v.                                                        )        NORTHERN DISTRICT OF
                                                          )        OHIO
RODNEY F. KING,                                           )
                                                          )                           OPINION
       Defendant-Appellant.                               )




BEFORE:        GILMAN and McKEAGUE, Circuit Judges; and BARRETT, District Judge.*

       McKEAGUE, Circuit Judge. A federal jury convicted Rodney F. King of being a felon in

possession of a firearm and of possessing narcotics with the intent to distribute. King represented

himself at trial, although he had assistance from legal counsel. On appeal, he contends that there was

insufficient evidence that he possessed either the firearm or the narcotics. He also raises several

purported errors involving the testimony of a detective. Finally, he attacks the reasonableness of his

sentence, relying primarily on his age (57 years) at the time of sentencing. For the reasons set forth

below, we affirm King’s convictions and sentence.




*
 The Honorable Michael R. Barrett, United States District Judge for the Southern District of Ohio,
sitting by designation.
No. 07-3655
United States v. King

                                                 I

       On January 24, 2006, at about 4:00 p.m., the Toledo Police Department executed a search

warrant at 1215 Page Street, Toledo Ohio, looking for evidence related to narcotics trafficking. Once

the SWAT team had secured the residence, Detective Brent Scoble and his search team entered the

home and found King face-down on the floor in the living room near the doorway to the middle

bedroom and another man, Malcolm Richardson, face-down in the living room. Detective Scoble

set up evidence collection on the kitchen table and searched the front bedroom, but did not conduct

the rest of the search himself; other members of Detective Scoble’s search team conducted the

search. Immediately upon entry, Detective Waylond Rider searched the two men for weapons and

read them their Miranda rights. Detective Rider found $220 in U.S. currency on King’s person.

Detective Gregory Mattimore noticed a rock of crack cocaine on a table in one of the bedrooms and

asked, “[W]hose bedroom is this?” and King responded that it was his bedroom. Joint Appendix

(“JA”) 142.

       The search of the middle bedroom turned up two prescription bottles with King’s name on

them, a syringe box with King’s name on it, and a piece of mail, postmarked January 24, 2006,

addressed to King at 915 Peck, Toledo Ohio. In the same room, Detective Rider also found a set of

keys, one of which opened the front door. Detective Mattimore discovered a loaded .32 caliber

Kimel revolver in the closet of the bedroom on the floor among some shoes. Detective Mattimore

asked King if there were any more firearms in the residence and King replied, “[N]o, that’s it.” JA

145-46. No other weapons were found in the residence.



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No. 07-3655
United States v. King

       Detective Nora Mugler asked King if there were any drugs in his bedroom and he responded

that there was a bag of marijuana in his coat. Detective Mugler subsequently found a bag of

marijuana in the coat. The search team found a large quantity of crack cocaine between the garbage

can and the garbage bag in the bedroom. Additionally, the search team found a purple plastic plate,

a razor, plastic baggies, and crack cocaine in smaller quantities in the bedroom. No fingerprints were

found on the plates or the firearm. The crack cocaine amounted to seventeen grams.

       When Detective Scoble tried to speak to King about the firearm and the drugs, King replied

that he did not want to talk about it, but added “that he had been doing this since before [Detective

Scoble] was in police training.” JA 129. Detective Scoble laughed and replied that King had

probably been committing crimes before the detective was born, to which King replied, “No, I’m

talking about selling drugs.” Id. As officers removed King from the residence, he shouted to people

standing across the street, “Watch my house so it doesn’t get robbed.” JA 146.

       Testimony at trial showed that the 1215 Page Street residence was the property of Annessa

Buchanan, King’s niece. Buchanan rented the residence out, but tenants paid their own utilities.

After Buchanan moved to Columbus, her mother, Cathy Nichols (King’s sister), took over

responsibility for the Page Street house. One tenant was Jackie Weaver, another one of King’s

sisters, who moved out in 2005. Weaver was unable to move her appliances at the time she moved

out, so she asked King to watch her appliances and her dog. Weaver also made arrangements with

a subsequent tenant of the 1215 Page Street residence, Benjamin Sayen, that he could use her

appliances if the dog could stay in the backyard. When Weaver moved out, King cleaned the house,

watched Buchanan’s car, checked on Weaver’s appliances, and cared for her dog. Although King

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No. 07-3655
United States v. King

never lived at or rented the 1215 Page Street residence and lived with his sister, Cathy Nichols, at

915 Peck from 2002 until his trial, it is undisputed that he visited the Page Street residence on a daily

basis.

         The most recent tenant was Sayen, who went to jail on December 27, 2005, a month before

the search and arrest of King. Sayen was in continuous custody from the time of his arrest until at

least the time of King’s trial. Employees from Columbia Gas and Toledo Edison testified that Sayen

opened utility accounts in his name for the house at 1215 Page Street in December 2005. No

payments were ever made on Sayen’s utility accounts.

         At the close of the Government’s proofs, King moved for acquittal due to insufficient

evidence on both the felon-in-possession count, 18 U.S.C. § 922(g)(1), and the count for possession

with intent to distribute seventeen grams of crack cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(B). The

district court denied the motion. King then put on several defense witnesses. At the close of proofs,

the district court instructed the jury. The jury subsequently convicted King on both counts.

         The probation office prepared a presentence report. Using the 2006 edition of the Guidelines

Manual, the probation office calculated a base-offense level of twenty six. Two levels were added

for possessing a firearm, making the offense level twenty eight. Because King had previously been

convicted of aggravated robbery, armed bank robbery, and robbery with firearms, he qualified as an

armed career criminal within the meaning of U.S.S.G. § 4B1.4, and the offense level was enhanced

to thirty four. King’s criminal history placed him in Category VI. The resulting Guidelines range

of imprisonment was 262 to 327 months.



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No. 07-3655
United States v. King

       King was represented by legal counsel at sentencing. King sought a sentence of 180 months,

the mandatory minimum sentence he faced as a result of the felon-in-possession conviction. King

argued that given his age, there was a reduced likelihood that he would commit crimes in the future.

Moreover, with a sentence of 180 months, he would have hope of leaving prison, thereby promoting

the interest of rehabilitation. He also pointed out that he suffered from diabetes. The district court

rejected King’s arguments, explaining that the defendant was a classic recidivist who had “not

learned from his own history,” that fifty-seven years old was not such an advanced age to require a

sentence below the advisory Guidelines range, and that firearms were involved in a majority of the

defendant’s prior convictions. JA 195-96. The district court then sentenced King to 264 months in

prison on each count, to be served concurrently.



                                                  II

A.     Sufficiency of the Evidence

       1.      Federal Rule of Civil Procedure 29

       In his first claim of error, King argues that the district court abused its discretion in denying

his motion for acquittal for insufficient evidence on both the felon-in-possession count and the

narcotics count. In his second claim of error, King contends that there was insufficient evidence to

convict him of either offense. The second claim, however, is not accompanied by any independent

analysis. Because the appellate standard of review of a district court’s denial of a motion for

acquittal under Federal Rule of Criminal Procedure 29(a) for lack of sufficient evidence is identical



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No. 07-3655
United States v. King

to the standard for an independent appellate claim of insufficient evidence, United States v. Abner,

35 F.3d 251, 253 (6th Cir. 1994), we review together King’s first and second claims of error.

       Rule 29(a) provides, “After the government closes its evidence or after the close of all the

evidence, the court on the defendant’s motion must enter a judgment of acquittal of any offense for

which the evidence is insufficient to sustain a conviction.” In reviewing King’s claim that the

district court abused its discretion when it denied his Rule 29 motion, we review his motion de novo

and examine the evidence in the light most favorable to the Government to determine whether any

rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

United States v. Grubbs, 506 F.3d 434, 438 (6th Cir. 2007). We can reverse a judgment based on

a finding of insufficient evidence only if the judgment is not supported by substantial and competent

evidence upon the record as a whole. Id. We must make all reasonable inferences and credibility

determinations in support of the guilty verdicts. United States v. Newsom, 452 F.3d 593, 608 (6th

Cir. 2006).



       2.      Constructive Possession

       There are three elements to the offense of being a felon in possession of a firearm: (a) the

defendant had a previous felony conviction; (b) the defendant knowingly possessed the firearm

specified in the indictment; and (c) the firearm traveled in or affected interstate commerce. 18 U.S.C.

§ 922(g); United States v. Campbell, 549 F.3d 364, 374 (6th Cir. 2008). The parties stipulated to

the first and third elements—the only element at issue during trial was whether King knowingly

possessed the firearm. It is further undisputed that King was not in actual possession of the firearm,

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No. 07-3655
United States v. King

so the claim of error boils down to whether there was sufficient evidence that he constructively

possessed the firearm. Grubbs, 506 F.3d at 439 (explaining that a felon-in-possession conviction can

be sustained by a showing of actual or constructive possession). Possession can be proven by either

direct or circumstantial evidence. Newsom, 452 F.3d at 609.

       As for the narcotics count, there are also three elements for possession with intent to

distribute: (a) the defendant knowingly (b) possessed a controlled substance (c) with the intent to

distribute. 21 U.S.C. § 841(a)(1), (b)(1)(B). On appeal, King argues that he did not have actual or

constructive possession of the narcotics. The Government does not contend that he had actual

possession, so this claim also boils down to whether there was sufficient evidence of constructive

possession to convict King of the narcotics count.

       Constructive possession exists where the defendant “does not have possession but instead

knowingly has the power and intention at a given time to exercise dominion and control over an

object, either directly or through others.” Campbell, 549 F.3d at 374 (internal quotation marks

omitted). However, “[p]resence alone near a gun . . . does not show the requisite knowledge, power,

or intention to exercise control over the gun to prove constructive possession.” United States v.

Arnold, 486 F.3d 177, 183 (6th Cir. 2007) (en banc) (internal citation and quotation marks omitted).

“Other incriminating evidence must supplement a defendant’s proximity to a firearm in order to tip

the scale in favor of constructive possession.” Campbell, 549 F.3d at 374 (citation omitted).

Consequently, “evidence of some other factor—including connection with a gun, proof of motive,

a gesture implying control, evasive conduct, or a statement indicating involvement in an

enterprise—coupled with proximity may suffice.” Newsom, 452 F.3d at 610 (citation omitted). The

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No. 07-3655
United States v. King

evidence need not be overwhelming, in the view of the appellate court, to uphold a jury’s finding of

guilt. This court has recognized that “the jury could have drawn different inferences from [the

government’s] evidence, and [the court’s] mandate is to affirm when the jury’s choice was a rational

one.” United States v. Mackey, 249 F. App’x 420, 424 (6th Cir. 2007) (internal quotation marks

omitted, emphasis added).

       In attacking his felon-in-possession and narcotics convictions, King points to the same

evidence or lack thereof to show that there was insufficient evidence of possession. He points out

that there was testimony that he was lying face down in the living room when officers entered the

residence and that the firearm and drugs were found in an adjoining bedroom. Another person was

also in the residence when officers entered. A third person had vacated the residence about a month

before the search, and several of the utility bills were still in that person’s name. No fingerprints

were found on the firearm or the narcotics. King contends that he was at the 1215 Page residence

to walk his sister’s dogs. He argues that he never exercised dominion or control over the residence,

the firearm, or the drugs, and that the Government’s evidence of constructive possession was

insufficient to show otherwise.

       King relies heavily upon this court’s decision in United States v. Beverly, 750 F.2d 34 (6th

Cir. 1984). In that case, the defendant was standing near a trashcan in a kitchen during the execution

of a search warrant; the defendant did not live in the residence. Id. at 35. The trashcan contained two

firearms, one of which had the defendant’s fingerprint on it. Id. at 35-36. The defendant was

convicted of possession of a firearm. This court held that the evidence was insufficient for

conviction because there was no evidence that the defendant controlled the kitchen. The court said

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No. 07-3655
United States v. King

that the evidence showed “only that [defendant] was in the kitchen of [a third person’s] residence,

that [defendant] was standing close to a waste basket which contained two guns, and that [defendant]

had at some point touched one of the guns.” Id. at 37.

       This case is distinguishable from Beverly. First, one of the witnesses at the scene testified

that King told him that the bedroom was his. King went to the residence daily to care for his sister’s

dog and to check on the appliances. At the time of the search, there was no third person living in the

residence. Moreover, King told a detective that he had a narcotic in his coat in the bedroom, and the

narcotic was subsequently found there. Also found in the bedroom were prescription drug bottles

and an empty box of syringes with King’s name on them; a set of keys to the front door of the

residence; and a bank deposit slip to King’s account. Based on this evidence, a reasonable jury could

conclude that King had dominion over the bedroom where the firearm and narcotics were found,

unlike the kitchen where the firearms were found in Beverly.

       In addition, there was evidence that King knew the contents of the bedroom and residence.

Again, King admitted that he had a narcotic in his coat pocket and that the coat was in the bedroom.

When asked whether there were any more firearms in the residence, King answered “no.” These

statements proved to be accurate.

       Finally, Detective Scoble testified that King told him that King had been selling drugs before

the detective had even been in training. The jury could infer from this that King had knowledge of

and had participated in past narcotic trafficking activity. Given the evidence of King’s proximity

to the bedroom, dominion of the room, knowledge of the contents of the residence, and knowledge

of and participation in past narcotic distribution, the jury could conclude that King knowingly

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No. 07-3655
United States v. King

possessed the firearm and narcotics.

       Although King points to testimony that he did not live at the residence and that another

person had been living there a month before the search, evidence of innocence is not enough to

overturn a conviction so long as there is enough countervailing evidence of guilt for a jury to choose

rationally in favor of that conviction. Here, there was sufficient evidence that King possessed the

firearm and narcotics. Accordingly, we reject King’s first two claims of error.



B.     Detective Scoble

       King raises two claims of error with regard to Detective Scoble as a witness. King contends

that the district court committed reversible error by designating Detective Scoble as an expert

witness in the presence of the jury in violation of this court’s directive in United States v. Johnson,

488 F.3d 690 (6th Cir. 2007). He further argues that Detective Scoble impermissibly gave his

opinion on one of the ultimate questions of fact—whether King possessed the firearm and narcotics.

He does not, however, argue that the district court abused its discretion in finding that Detective

Scoble was qualified to be an expert witness.1



       1.      Designation as an Expert in Front of the Jury




1
 A review of the Detective’s background confirms that he was well-qualified to testify about drug
investigations and paraphernalia.

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No. 07-3655
United States v. King

       Prior to any substantive testimony, the Government posed a series of qualifying and

foundational questions to Detective Scoble. At the conclusion of these questions, the following

colloquy occurred:

       MR. WELDON: Your Honor, at this time I’d move The Court to declare that
       Detective Brent Scoble is an expert in the field of narcotics investigations and
       paraphenelia [sic] pursuant to the Federal Rules of Evidence 702.

       MR. KING: I’d like to note an objection, Your Honor.

       THE COURT: I think in the field of investigation and police work connected with
       that investigation --

       MR. WELDON: Thank you, Your Honor.

       THE COURT: -- the Court will treat him as an expert over the objection of
       defendant.

       MR. WELDON: Thank you, Your Honor.

JA 114-15. While King did not specify whether he was objecting to Detective Scoble as an expert

witness or, rather, whether he was objecting to the Government’s request to so designate the

detective in open court, the Government does not contest that King preserved his claim for appeal.

       In Johnson, this court stated that district courts should not designate a police officer as an

“expert” before the jury. 488 F.3d at 697. The court explained:

       When a court certifies that a witness is an expert, it lends a note of approval to the
       witness that inordinately enhances the witness’s stature and detracts from the court’s
       neutrality and detachment. “Except in ruling on an objection, the court should not,
       in the presence of the jury, declare that a witness is qualified as an expert or to render
       an expert opinion, and counsel should not ask the court to do so.” ABA Civil Trial
       Practice Standard 17 (Feb. 1998); see also Jones, Rosen, Wegner & Jones, Rutter
       Group Practice Guide: Federal Civil Trials & Evidence § 8:1548.1 (The Rutter Group
       2006). Instead, the proponent of the witness should pose qualifying and foundational
       questions and proceed to elicit opinion testimony. If the opponent objects, the court

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No. 07-3655
United States v. King

        should rule on the objection, allowing the objector to pose voir dire questions to the
        witness’s qualifications if necessary and requested. See Berry v. McDermid Transp.,
        Inc., 2005 WL 2147946, at *4 (S.D. Ind. Aug.1 , 2005) (stating that “counsel for both
        parties should know before trial that the court does not ‘certify’ or declare witnesses
        to be ‘experts’ when ‘tendered’ as such at trial. Instead, if there is an objection to an
        offered opinion, the court will consider the objection. The court’s jury instructions
        will refer to ‘opinion witnesses’ rather than ‘expert witnesses’”); see also Jordan v.
        Bishop, 2003 WL 1562747, at *2 (S.D. Ind. Feb. 14, 2003). The court should then
        rule on the objection, “to the extent practicable, so as to prevent inadmissible
        evidence from being suggested to the jury by any means.” Fed. R. Evid. 103(c).

Id. at 697-98.

        King has not argued that the district court committed a structural error requiring automatic

reversal. As the Supreme Court set forth in Brecht v. Abrahamson, “Trial error occurs during the

presentation of the case to the jury, and is amenable to harmless-error analysis because it may be

quantitatively assessed in the context of other evidence presented in order to determine the effect it

had on the trial.” 507 U.S. 619, 629 (1993) (internal quotation marks, citations, and brackets

omitted). The Court went on to explain, “At the other end of the spectrum of constitutional errors

lie structural defects in the constitution of the trial mechanism . . . . The existence of such defects

. . . requires automatic reversal of the conviction because they infect the entire trial process.” Id. at

629-30 (internal quotation marks, citations, and footnote omitted). The Johnson court did not

consider the district court’s statement in open court as a structural error because it subjected the

statement to plain-error analysis and affirmed the conviction. 488 F.3d at 698. Likewise, in the two

decisions cited in Johnson for support of the general proposition, neither of the courts found the trial

court’s action mandated reversal. See id. at 697 (citing United States v. Bartley, 855 F.2d 547, 552

(8th Cir. 1988); State v. McKinney, 917 P.2d 1214, 1233 (Ariz. 1996)). Because the district court’s


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No. 07-3655
United States v. King

designation of the detective as an expert can be meaningfully reviewed against the properly admitted

evidence and instructions of the district court, we review King’s claim for harmless error.

       “The harmless-error standard provides that if ‘one cannot say, with fair assurance, . . . that

the judgment was not substantially swayed by the error, it is impossible to conclude that substantial

rights were not affected.’” Mike’s Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 409-10 (6th Cir.

2006) (quoting DePew v. Anderson, 311 F.3d 742, 751 (6th Cir. 2002)). It would have been the

better practice for the district court to have refrained from declaring Detective Scoble an expert in

front of the jury, a procedure that this court expressly cautioned against in Johnson. However,

Johnson had not yet been issued. King’s trial occurred in November 2006, several months before

this court issued Johnson (May 2007). Moreover, at the time of trial, this court’s own pattern jury

instructions provided, “(1) You have heard the testimony of __________, an expert witness. An

expert witness has special knowledge or experience that allows the witness to give an opinion. (2)

You do not have to accept an expert’s opinion. . . .” 6th Cir. Pattern Crim. Jury Instr. 7.03 Expert

Testimony (2005) (emphasis added). The instruction was amended in December 2007 to reflect the

Johnson court’s disfavor of the use of “expert” in open court. See 6th Cir. Comm., cmt. to Instr. 7.03

(2008 update). The current model instruction omits the term “expert.” See 6th Cir. Pattern Crim.

Jury Inst. 7.03 Opinion Testimony (2008 update); United States v. Neeley, 308 F. App’x 870, 877

n.4 (6th Cir. 2009).

       The district court’s designation was not pervasive, but rather an isolated statement. The

primary issue at trial was whether King possessed the firearm and narcotics and, while Detective

Scoble did offer fact testimony on that issue, there were a number of other Government witnesses

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No. 07-3655
United States v. King

who also testified on that very issue. Thus, even if, as King contends, the district court’s declaration

lent a note of approval to Detective Scoble’s testimony, there was considerable corroborating direct

and circumstantial evidence from other sources on the crucial issue of possession. Without more,

it cannot be said that the jury was substantially swayed by the district court’s declaration and,

accordingly, any error by the district court was harmless.



        2.      Testimony Regarding Possession

        King maintains that the district court plainly erred in permitting Detective Scoble to state his

opinion that King “possessed” the items, an ultimate finding of fact to be left to the jury. United

States v. Swafford, 385 F.3d 1026, 1029-30 (6th Cir. 2004). During cross-examination, King asked

Detective Scoble several times whether anyone told the detective that “King was in possession” of

the firearm or narcotics. Detective Scoble answered that although no one told him that the items

were on King’s “specific person,” the detective did write in his supplemental report that King

“possessed” them. JA 130. After further questioning on the topic by King, Detective Scoble

clarified, “As I stated before, none of these items other than the money was on your specific person,

but all these items were in your bedroom along with your belongings with your personal name on

it.” JA 131.

        The district court did not plainly err by failing to strike sua sponte the detective’s testimony.

While the question of possession was one of the ultimate factual elements for the jury to answer, it

is clear from the transcript that Detective Scoble’s testimony on possession was in response to

King’s questions. King can hardly now complain about testimony he directly elicited. Detective

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No. 07-3655
United States v. King

Scoble clarified what he meant by the term “possess,” i.e., that the firearm and narcotics were in the

bedroom along with other items that belonged to King. Thus, the jury was not misled by any

unstated and possibly erroneous legal standard packed into the detective’s use of the term “possess.”

See United States v. Ahmed, 472 F.3d 427, 434 (6th Cir. 2006) (finding that in a close case, a

witness’s use of the term “falsity” did not convey a legal opinion, but rather was simply “a non-

technical expression of her informed opinion”). Thus, we reject King’s third claim of error and

affirm his convictions.



C.      The Reasonableness of King’s Sentence

        Lastly, King argues that his sentence was unreasonable. He raises three specific grounds for

a lesser sentence: (1) the evidence at trial was insufficient to show that he possessed the firearm or

narcotics; (2) the district court failed to give proper weight to King’s age at the time of sentencing;

and (3) the district court was under the mistaken understanding that the Guidelines were mandatory.

        We review the district court’s sentencing judgments under the deferential “abuse of

discretion” standard, evaluating both their procedural and substantive reasonableness. Gall v. United

States, 128 S. Ct. 586, 591, 598 (2007). A district court will be deemed to have abused its discretion

if it committed 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, 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.” Id. at

597. “If procedurally sound, [the court] then review[s] the sentence for substantive reasonableness

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No. 07-3655
United States v. King

under an abuse-of-discretion standard.” United States v. Haj-Hamed, 549 F.3d 1020, 1024 (6th Cir.

2008) (citing Gall, 128 S. Ct. at 598; Rita v. United States, 127 S. Ct. 2456, 2465 (2007)). “[A]

properly calculated within-Guidelines sentence will be afforded a rebuttable presumption of

reasonableness on appeal.” Id. at 1025 (citing Rita, 127 S. Ct. at 2462; United States v. Williams, 436

F.3d 706, 708 (6th Cir. 2006)).

       King does not contend that the district court erred in calculating the Guidelines range. A

review of the district court’s calculations confirms that it properly calculated a range of 262 to 327

months. The district court sentenced King to 264 months, so the sentence is afforded a presumption

of reasonableness. The issue becomes, then, whether King has identified sufficient errors to rebut

the presumption.

       King’s first and third asserted errors require little discussion. The jury found that King

possessed the firearms and narcotics beyond a reasonable doubt, and the district court was bound by

the jury’s findings. Cf. United States v. Garner, 491 F.3d 532, 536-37 (6th Cir. 2007), cert. denied,

128 S. Ct. 1103 (2008). Furthermore, the district court clearly understood that the Guidelines are

advisory, as evidenced by the very statements that King relies upon for the contrary inference: “The

advisory guideline is 262 to 327 months. And I will sentence within that guideline.”

       As to the second asserted error, the district court did not abuse its discretion in rejecting

King’s age as a basis for sentencing below the advisory Guidelines range. Under the Guidelines, a

defendant’s age “is not ordinarily relevant in determining whether a departure is warranted.”

U.S.S.G. § 5H1.1 (2006). It is true that a district court “has a freer hand to account for the

defendant’s age in its sentencing calculus under § 3553(a)” than under the Guidelines. United States

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No. 07-3655
United States v. King

v. Davis, 537 F.3d 611, 617 (6th Cir.) (citing United States v. Smith, 445 F.3d 1, 5 (1st Cir. 2006)),

cert. denied, 129 S. Ct. 752 (2008); see also Haj-Hamed, 549 F.3d at 1027 (“It is correct that, post-

Booker, a district court may vary a sentence to account for a factor discouraged by the Sentencing

Commission.” (internal quotation marks omitted)). Yet, “[t]o say that a district court may account

for a defendant’s age at sentencing, however, is not to say” that a large downward variance is

necessarily warranted. Davis, 537 F.3d at 617 (emphasis added).

       During the sentencing hearing, the district court noted that King’s extensive criminal history

showed that King had failed to learn from his own criminal history, let alone the history of others.

The district court also noted that King was several years younger than the judge and did not view the

defendant’s age as a reason to sentence below the Guidelines. The district court clearly placed

considerable emphasis on the need to protect society from King because several of his convictions

(including the present one) involved firearms. Although King argues that the district court did not

give adequate weight to his age, he has simply failed to show that the district court erred by placing

greater emphasis on the risk of recidivism and on the threat that King posed to society than on his

age.



                                                 III

       For the reasons set forth above, we AFFIRM King’s convictions and sentence.




                                                - 17 -
