                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 16a0622n.06

                                         Case No. 15-4089
                                                                                      FILED
                           UNITED STATES COURT OF APPEALS                       Nov 22, 2016
                                FOR THE SIXTH CIRCUIT                       DEBORAH S. HUNT, Clerk



UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )
                                                     )      ON APPEAL FROM THE UNITED
v.                                                   )      STATES DISTRICT COURT FOR
                                                     )      THE NORTHERN DISTRICT OF
GREGORY WILLIAMS, JR.,                               )      OHIO
                                                     )
       Defendant-Appellant.                          )
                                                     )
                                                     )

       BEFORE: MOORE, SUTTON, and WHITE, Circuit Judges.

       SUTTON, Circuit Judge. Gregory Williams challenges the district court’s decisions to

sentence him to a prison term above the recommended guidelines range and to make the sentence

consecutive to state sentences for robbery and drug possession. Because the district court did not

abuse its discretion in either respect, we affirm.

       On April 12, 2013, FBI agents attempted to arrest Williams at a home where he had been

staying periodically based on an arrest warrant stemming from a drug-possession charge.

A resident gave the agents permission to search the home, and the agents found a firearm and

ammunition wrapped in a towel in a plastic bag in the bedroom where Williams’ girlfriend slept.
Case No. 15-4089
United States v. Williams
       Williams robbed a bank the next day, and FBI agents arrested him soon after. When the

agents asked Williams about the gun they had found, he explained that he was holding it for a

friend whom he refused to name.

       A DNA swab of the gun showed major contributions from Eric Gooch, who had

committed three bank robberies in January–March 2013, and at least two other individuals. Text

messages and call logs showed that, on March 13, 2013, Williams called a bank less than one

hour before Gooch robbed it, and that Williams and Gooch communicated after the robbery. The

messages and call logs also showed that Williams communicated often with Shawn Caldwell,

who was later convicted of a different bank robbery. In one message sent two days before the

March 13 bank robbery, Williams told Caldwell, “I need a strap” (slang for “gun”). R. 21-4.

       Williams pleaded guilty to being a felon in possession of a firearm and ammunition. See

18 U.S.C. § 922(g)(1), § 924(a)(2). The presentence report assigned Williams a base offense

level of 14 and a criminal history category of V.       The government initially objected that

Williams’ offense level should be 20 because his prior conviction for failure to comply with the

order of a police officer qualified as a crime of violence under the Guidelines’ residual clause.

See U.S.S.G. §§ 2K2.1(a)(4)(A), 4B1.2(a)(2). But it withdrew the objection in light of Johnson

v. United States, 135 S. Ct. 2551 (2015).       After a two-level reduction for acceptance of

responsibility, Williams faced a recommended sentencing range of 27–33 months.

       At the sentencing hearing, Williams’ counsel requested a sentence within the guidelines

range. He noted Williams’ difficult childhood, and Williams himself addressed the court to

apologize for his conduct and to express his commitment to staying sober and parenting his

children.




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       The government asked the court to impose an above-guidelines sentence and to make it

consecutive to Williams’ state sentences for bank robbery and drug possession. The government

observed that this was not a typical felon-in-possession case. The circumstances indicated that

Williams was holding the gun for Gooch, who had been involved in a series of violent robberies,

or perhaps for Caldwell, who was a convicted bank robber. The government added that the

officers found the gun in a room accessible to children and that Williams had an extensive

criminal record, involving crimes of increasing severity.

       The district court imposed a sentence of 60 months for the firearm violation, to run

consecutive to Williams’ 30-month state sentence for robbery and 7-month sentence for drug

possession. The court gave these reasons for the sentence: the gun was likely being held for use

in violent robberies, the gun posed a danger to children, and the defendant had an escalating

criminal history. The court also noted that longer sentences like this one were needed to combat

gun violence in Cleveland, and that the sentence was still well below the statutory maximum of

120 months.

       On appeal, Williams claims that the district court abused its discretion in imposing a

procedurally and substantively unreasonable sentence. We disagree.

       Procedural reasonableness requires that a district court “properly calculate the guidelines

range, treat the guidelines as advisory, consider the § 3553(a) factors and adequately explain the

chosen sentence.” United States v. Presley, 547 F.3d 625, 629 (6th Cir. 2009). Williams first

argues that the court made a procedural error by failing to explain its decision to make a six-level

upward departure under § 4A1.3 of the Guidelines, which provides that a district court may

exceed the recommended range when reliable information “indicates that the defendant’s

criminal history category substantially under-represents the seriousness of the defendant’s



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United States v. Williams
criminal history or [risk of recidivism].” U.S.S.G. § 4A1.3(a)(1).       In making this upward

departure, Williams maintains, the district court effectively granted the government’s earlier

request that Williams be classified as a career offender, even though Johnson (arguably)

eliminated the basis for that classification.

       But Williams misapprehends what happened. The district court repeatedly made clear

that it was making a variance under § 3553(a), not a departure under § 4A1.3. See United States

v. Herrera-Zuniga, 571 F.3d 568, 586–87 (6th Cir. 2009). By the time of sentencing, the

government had withdrawn its request that Williams be subject to a higher offense level as a

career offender, and the district court did not consider it. Because the district court based its

decision to impose an above-range sentence on § 3553(a), not § 4A1.3, Williams’ argument falls

short of the mark.

       Williams separately claims that his sentence is procedurally unreasonable because the

district court failed to consider the § 3553(a) sentencing factors. “[A] sentence is procedurally

reasonable if the record demonstrates that the sentencing court addressed the relevant factors in

reaching its conclusion.” United States v. Dexta, 470 F.3d 612, 614–15 (6th Cir. 2006). No

“rote listing” of the factors is required. Id. at 615. What is required is that the court provide

reasons for the sentence that “sufficiently reflect considerations akin to those enumerated in the

statute.” United States v. Husein, 478 F.3d 318, 330 (6th Cir. 2007). The court readily met that

standard when it gave a detailed explanation of its decision to impose a sentence above the

guidelines range. It discussed the circumstances of the offense and Williams’ criminal history,

see 18 U.S.C. § 3553(a)(1), and explained that the sentence was necessary to reflect the

seriousness of the offense, to deter gun violence in Cleveland, and to protect the public, see id.

§ 3553(a)(2).    At the same time, the court considered Williams’ mitigating factors—his



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United States v. Williams
experience of childhood abuse, trouble with substance abuse, and desire to maintain a

relationship with his children—but found that an upward variance was warranted nonetheless.

The court “considered the parties’ arguments” and gave “a reasoned basis for exercising [its

sentencing] authority.” United States v. Payton, 754 F.3d 375, 378 (6th Cir. 2014). All in all,

the court imposed a procedurally reasonable sentence.

       But was it substantively reasonable? Williams thinks not. Here, too, we must disagree.

“The sentence may be substantively unreasonable if the district court chooses the sentence

arbitrarily, grounds the sentence on impermissible factors, or unreasonably weighs a pertinent

factor.” United States v. Brooks, 628 F.3d 791, 796 (6th Cir. 2011). When reviewing a sentence

outside the guidelines range, we “may consider the extent of the deviation, but must give due

deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent

of the variance.” Gall v. United States, 552 U.S. 38, 51 (2007). Williams argues that the district

court put too much weight on his criminal history and the seriousness of the offense, leading to a

longer-than-necessary sentence. The district court no doubt discussed both factors at length. But

they are important factors, and the court acted well within its discretion in explaining that an

upward variance was necessary to deter future gun violence and to protect the public from the

defendant.   Yes, the variance is substantial in relative terms; it doubled the recommended

sentence. But the sentence remains no more than half of the statutory maximum. What matters

is that the court considered and reasonably rejected Williams’ arguments that a lower sentence

was sufficient, and Williams offers no convincing reason to second-guess that decision.

       Nor did the district court abuse its discretion by ordering Williams’ federal sentence to be

served consecutively to his state sentence for robbery. Because Williams did not object to his

consecutive sentence when the district court asked if there were any objections to the sentence it



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had just handed down, we review the district court’s decision for plain error. United States v.

Harmon, 607 F.3d 233, 236 (6th Cir. 2010); United States v. Vonner, 516 F.3d 382, 385–86 (6th

Cir. 2008) (en banc); United States v. Bostic, 371 F.3d 865, 871 (6th Cir. 2004). When a district

court imposes consecutive sentences, it does not abuse its discretion if it “makes generally clear

the rationale under which it has imposed the consecutive sentence and seeks to ensure an

appropriate incremental penalty for the instant offense.” United States v. Berry, 565 F.3d 332,

342 (6th Cir. 2009). Nonetheless, the district court’s discretion is not “unfettered,” and “the

record on appeal should show that the district court turned its attention to [U.S.S.G.] § 5G1.3[]

and the relevant commentary.” Id. (quotation omitted).

       Although the district court made no mention of § 5G1.3, it gave a clear rationale for its

decision and its analysis was consistent with the Guidelines’ advice on whether to impose a

concurrent sentence. Williams was not prejudiced by any error as a result. See United States v.

Olano, 507 U.S. 725, 734 (1993). The Guidelines suggest that concurrent sentences be imposed

when “a term of imprisonment resulted from another offense that is relevant conduct to the

instant offense.” U.S.S.G. § 5G1.3(b). But Williams’ state convictions (one for drug possession

and one for the bank robbery that Williams committed with a different gun the day after the

search) did not involve conduct relevant to the federal felon-in-possession charge. When the

underlying conduct is unrelated, the Guidelines advise sentencing judges to choose between

concurrent or consecutive sentences in order to “achieve a reasonable incremental punishment

for the instant offense.” Id. § 5G1.3(d), comment. (n.4). That’s just what the court did.

       The commentary to § 5G1.3(d) lists several considerations the district court should weigh

in determining what constitutes a “reasonable incremental punishment,” including the § 3553(a)

factors. We have held that considering the § 3553(a) factors alone suffices to support the



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decision to impose a consecutive sentence, and that a district court need not repeat the § 3553(a)

analysis it conducted when setting the sentence for the underlying offense. Berry, 565 F.3d at

343. Here, the district court was justified in imposing consecutive sentences for the same

reasons it was justified in making an upward variance: the likelihood that Williams was holding

the gun for Gooch or Caldwell to use in bank robberies, the danger his conduct posed to children,

his escalating criminal history, the need to deter gun violence, and the need to protect the public

from future violent crimes by Williams.

       For these reasons, we affirm.




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