                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0396n.06

                                           No. 09-4189
                                                                                         FILED
                          UNITED STATES COURT OF APPEALS                             Jun 13, 2011
                               FOR THE SIXTH CIRCUIT
                                                                               LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff–Appellee,              )                 ON APPEAL FROM THE
                                       )                 UNITED STATES DISTRICT
v.                                     )                 COURT FOR THE SOUTHERN
                                       )                 DISTRICT OF OHIO
KEVIN R. TINCHER,                      )
                                       )
                                                                OPINION
      Defendant–Appellant.             )
_______________________________________)


Before: MOORE and GIBBONS, Circuit Judges; BORMAN, District Judge.*

       KAREN NELSON MOORE, Circuit Judge.                   Kevin R. Tincher pleaded guilty to

distributing oxycodone and cocaine, being a felon in possession of a firearm, and dealing firearms

without a license. The district court sentenced Tincher to 108 months of imprisonment and five

years of supervised release. Although the term of imprisonment falls within the Guidelines range,

Tincher contends on appeal that his sentence is unreasonable. Tincher seeks lenience because he has

suffered brain damage, is addicted to drugs, and supports a minor child. He also argues that the

government “‘manufactured’ or ‘invented’” his crimes, although he acknowledges that he was not

formally entrapped. Appellant Br. at 10. Nevertheless, because we conclude that Tincher’s sentence

is procedurally and substantively reasonable, we AFFIRM Tincher’s sentence.




       *
       The Honorable Paul D. Borman, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 09-4189
United States v. Tincher


                                       I. BACKGROUND

       On December 19, 2007, Tincher sold thirty-eight OxyContin pills and .80 gram of cocaine

to Special Agent Jeremy Godsave, who was working undercover with the Bureau of Alcohol,

Tobacco, Firearms, and Explosives. On the same day, he also gave .79 gram of cocaine to the

confidential informant who had arranged Tincher’s sale to Agent Godsave. On January 4, 2008,

Tincher sold eighteen OxyContin pills and a .41-caliber pistol to Agent Godsave. Finally, on

January 8, 2008, Tincher sold a .357-caliber pistol and a .45-caliber pistol to Agent Godsave.

Tincher did not have a Federal Firearms License and was a convicted felon at the time of each sale.

       On February 26, 2009, Tincher pleaded guilty to two counts of distributing oxycodone, 21

U.S.C. §§ 841(a)(1) and (b)(1)(C), one count of distributing cocaine, 21 U.S.C. §§ 841(a)(1) and

(b)(1)(C), one count of being a felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1) and

924(a)(2), and one count of dealing firearms without a license, 18 U.S.C. §§ 922(a)(1) and

924(a)(1)(D). In exchange, the government dismissed a second count of being a felon in possession

of a firearm, one count of possessing with intent to distribute cocaine in excess of 500 grams, and

one count of using and carrying a firearm during and in relation to a drug trafficking crime.

       At sentencing, Tincher faced a Guidelines range of 92 to 115 months of imprisonment.

Tincher argued that, although the government had not entrapped him, the government had

“prodd[ed]” Tincher to commit the crimes. R. 53 (Objections to PSR at 2). He also stressed

elements of his personal history, including untreated brain damage, longstanding drug abuse, a lack

of education and parental guidance during his youth, and a newfound desire to raise his son.


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United States v. Tincher


Although the district court recognized these features, the district court viewed “the safety of the

community” as its “paramount consideration” and “truly . . . the predominant factor here.” R. 68

(Sent. Tr. at 23, 21). Tincher’s “past criminal record [wa]s extensive,” id. at 17, including “some

12 or 13 felonies and half a dozen, if not more, misdemeanors,” id. at 22, which the district court

described at length. The district court explained that “[t]he safety of the community is very much

at risk based upon [Tincher’s] past record.” Id. The district court therefore sentenced Tincher to 108

months of imprisonment, to be followed by five years of supervised release.

                                          II. ANALYSIS

       On appeal, Tincher argues that his sentence is unreasonable.1 We disagree, holding instead

that the district court acted within its discretion in imposing the 108-month sentence.

       Preliminarily, Tincher argues that United States Sentencing Guidelines (U.S.S.G.) §§ 5H1.1,

5H1.3, 5H1.4, and 5H1.6 are unconstitutional to the extent that they forbid district courts from

imposing non-Guidelines sentences on the bases of age, mental and emotional conditions, physical

conditions including alcohol or drug abuse, and family ties and responsibilities. These Part H

Guidelines limit the circumstances in which district courts may depart due to the listed bases. In the

wake of Booker, these provisions do not prevent district courts from varying based on how the listed

factors inform the 18 U.S.C. § 3553(a) analysis. United States v. Davis, 537 F.3d 611, 616–17 (6th


       1
        Although Tincher characterizes his claim as a challenge to the substantive reasonableness
of the sentence, his arguments encompass both procedural and substantive considerations. See
Appellant Br. at 9–10 (quoting law about the need to explain the basis for rejecting a defendant’s
arguments), 13 (contending that “it is not clearly evident from the record” that the court took “into
account” Tincher’s arguments).

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United States v. Tincher


Cir.) (§ 5H1.1), cert. denied, 129 S. Ct. 752 (2008); United States v. Baker, 502 F.3d 465, 468 (6th

Cir. 2007) (§ 5H1.6). By extension, the provisions also cannot prevent district courts from picking

which within-Guidelines sentence to impose based on how the listed factors inform the § 3553(a)

analysis. Therefore, the constitutional question that Tincher has raised relies on an overly broad

understanding of what the Part H Guidelines prohibit.

A. Procedural Reasonableness

       We review sentences for abuse of discretion to determine whether the sentence is reasonable.

Gall v. United States, 552 U.S. 38, 51 (2007). For a sentence to be procedurally reasonable, “[t]he

sentencing judge should set forth enough [reasons] to satisfy the appellate court that he has

considered the parties’ arguments and has a reasoned basis for exercising his own legal

decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356 (2007). “When a defendant

raises a particular, nonfrivolous argument in seeking a lower sentence, the record must reflect both

that the district judge considered the defendant’s argument and that the judge explained the basis for

rejecting it.” United States v. Damra, 621 F.3d 474, 508 (6th Cir. 2010) (internal quotation marks

and alteration marks omitted). “Sometimes the circumstances will call for a brief explanation;

sometimes they will call for a lengthier explanation.” Rita, 551 U.S. at 357. In all cases, though,

the key “question is whether ‘[t]he record makes clear that the sentencing judge listened to each

argument,’ ‘considered the supporting evidence,’ was ‘fully aware’ of the defendant’s

circumstances[,] and took ‘them into account’ in sentencing him.” United States v. Vonner, 516 F.3d

382, 387 (6th Cir.) (en banc) (quoting Rita, 551 U.S. at 358), cert. denied, 129 S. Ct. 68 (2008).


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No. 09-4189
United States v. Tincher


Because the district court in this case did not ask the Bostic question, Tincher’s failure to object after

the district court announced his sentence does not limit us to plain-error review. United States v.

Thomas, 498 F.3d 336, 340 (6th Cir. 2007) (holding that “Do you have anything further for the

record, Mr. Canady?” does not satisfy Bostic); R. 68 (Sent. Tr. at 30–31) (“Mr. Monta, anything

further?”).

        Tincher highlights five factors to which, in his view, the district court gave inadequate weight

when selecting his sentence. The district court thoroughly addressed two of these factors. First,

Tincher “under[went] a personal transformation during the 18 months of prior incarceration” and

now “desire[s] to raise his 18-month old son.” Appellant Br. at 15. The district court recognized

that Tincher “strongly desire[s] to raise his child” and took into consideration Tincher’s “apparent

sincerity” about his “desire to turn his life around.” R. 68 (Sent. Tr. at 20, 23). It also opted not to

impose an above-Guidelines sentence because the district court “hope[d] that this Defendant is ready

to turn his life in the right direction.” Id. at 24–25. Clearly, the district court understood and

addressed Tincher’s argument. Second, Tincher asserts that the government “manufactured” his

crime, while admitting that he was not entrapped. Appellant Br. at 10. Tincher contests the

government’s assertion that he dealt firearms, oxycodone, or cocaine on a regular basis or in large

quantities, blaming his conviction on having been “repeatedly prodded by the [confidential

informant].” Id. at 15. In response, the district court explained that “[t]hese offenses were not

manufactured as much as they were the providing of opportunities for the Defendant to commit

crimes. And there’s very little that the Court feels it should do” in response. R. 68 (Sent. Tr. at


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United States v. Tincher


20–21). The district court took that factor “into consideration to some extent but the Court c[ould

]not avoid the fact that a predisposition existed in this case to a high degree.” Id. at 21. Putting aside

the parties’ dispute about the extent of Tincher’s involvement in other crimes, the district court

adequately explained its conclusion that Tincher was predisposed to commit the crimes to which he

pleaded guilty.

        The district court also considered the three other factors that Tincher finds important, despite

recounting them in less detail than Tincher would have preferred. First, the district court observed

that Tincher’s history of drug use included “[a]lcohol, marijuana, cocaine, methamphetamine, [and]

OxyContin.” R. 68 (Sent. Tr. at 20). Tincher supplements these facts by noting that his drug use

started at a young age. He has used marijuana and alcohol regularly since age 11 and cocaine since

age 14. Second, the district court noted that Tincher received only six years of formal education,

although it also observed that “[h]e’s far more intelligent than his formal education would indicate.”

Id. Tincher adds that his childhood involved financial difficulties and little adult supervision. Third,

the district court noted that “a host of medical issues” afflict Tincher. Id. It did not explain the

nuances of Tincher’s partially untreated brain damage, which was caused by a suicide attempt that

left Tincher in a coma for three months.

        Because the district court considered each of Tincher’s arguments and took them into account

when crafting Tincher’s sentence, we find that Tincher’s sentence is procedurally reasonable. While

it is always possible for a district judge to have recited the defendant’s arguments in more detail, this

is not a case in which “we are unable to answer the simple question of why the district judge decided


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No. 09-4189
United States v. Tincher


to impose” the sentence that he did. United States v. Wallace, 597 F.3d 794, 803 (6th Cir. 2010).

Nor is this a case in which “[t]he district judge . . . did not make even a cursory mention” of the

disputed issues. Id. at 804. Instead, “‘the record makes clear that the sentencing judge listened to

each argument.’” Id. (quoting Rita, 551 U.S. at 358).

       Tincher’s final objection to the procedural reasonableness of his sentence is that public safety

is not a legitimate basis for imposing long sentences for drug crimes. According to Tincher, drug

crimes are victimless and incarceration for drug offenses has not lowered the rates of violent crime.

The district court, however, seems to have used the phrase “public safety” to refer to 18 U.S.C.

§ 3553(a)(2)(B–C). Those subsections explain “the need for the sentence imposed . . . to afford

adequate deterrence to criminal conduct” and “to protect the public from further crimes of the

defendant.” Regardless of Tincher’s views about the merits of federal drug policy, Tincher’s actions

were criminal. Tincher’s sentence functions as a deterrent to the commission of drug crimes. His

incapacitation protects the public from Tincher’s drug sales for the duration of his incarceration.

Moreover, two of the crimes to which Tincher pleaded guilty were firearms offenses, not drug

offenses. The district court, then, did not procedurally err by considering “public safety.”

       Because the district court listened to each of Tincher’s arguments and explained why each

factor affected or did not affect Tincher’s sentence, Tincher’s sentence is procedurally reasonable.

B. Substantive Reasonableness

       For similar reasons, we conclude that Tincher’s sentence is substantively reasonable. “A

sentence is substantively unreasonable if the district court selects a sentence arbitrarily, bases the


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United States v. Tincher


sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an

unreasonable amount of weight to any pertinent factor.” United States v. Lapsins, 570 F.3d 758, 772

(6th Cir. 2009) (internal quotation marks omitted). Our circuit presumes, subject to rebuttal, that a

sentence is substantively reasonable when it falls within the Guidelines range. Vonner, 516 F.3d at

389–90. As explained above, the factors that the district court considered were permissible, and the

district court did not fail to consider any relevant sentencing factors. That the district court found

public safety to be the predominant concern is not proof that the district court gave public safety

unreasonable weight, nor is it proof that the district court ignored the defendant’s personal history.

Tincher has not overcome the presumption that his within-Guidelines sentence is substantively

reasonable.

                                       III. CONCLUSION

       The district court did not abuse its discretion when it imposed a within-Guidelines sentence

on Tincher. Because we have determined that Tincher’s sentence is both procedurally and

substantively reasonable, we AFFIRM Tincher’s sentence.




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