                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 18a0387n.06

                                        Case No. 17-4192

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                 FILED
                                                                           Aug 03, 2018
UNITED STATES OF AMERICA,                          )                   DEBORAH S. HUNT, Clerk
                                                   )
          Plaintiff-Appellee,                      )
                                                   )       ON APPEAL FROM THE UNITED
v.                                                 )       STATES DISTRICT COURT FOR
                                                   )       THE NORTHERN DISTRICT OF
JERRY HUBBARD,                                     )       OHIO
                                                   )
          Defendant-Appellant.                     )
                                                   )
                                                   )


BEFORE: SILER, MOORE, and GRIFFIN, Circuit Judges.

          SILER, Circuit Judge. Jerry Hubbard appeals his sentence of 100 months’ imprisonment

for attempted possession of cocaine, arguing that it is substantively unreasonable. For the

following reasons, we affirm.

                       FACTUAL AND PROCEDURAL BACKGROUND

          In April 2017, the U.S. Postal Inspector Service found a quantity of cocaine in two

packages sent from Las Vegas to Hubbard in Akron, Ohio. Hubbard was arrested and admitted

that he had agreed to receive the packages, which he knew contained controlled substances, in

order to pay off a drug debt. Police then searched Hubbard’s home and found two handguns, 47.33

grams of cocaine base, and 7.41 grams of fentanyl. Hubbard admitted that these items belonged

to him.
Case No. 17-4192, United States v. Hubbard


       Hubbard pled guilty to attempted possession with intent to distribute approximately

2 kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). With a total offense

level of 25 and a criminal history category of III, Hubbard’s guidelines range was 70 to 87 months’

imprisonment.    The government moved for a four-level downward departure pursuant to

USSG § 5K1.1 and 18 U.S.C. § 3553(e) based on Hubbard’s substantial assistance, which the

court granted. Consequently, Hubbard’s new offense level was 21, and his guidelines range was

46 to 57 months. During a meeting in chambers before the sentencing hearing, the district judge

stated that he was “contemplating a substantial upward variance in this case based upon the history

and characteristics of the defendant and the nature and circumstance of the offense.” The district

judge asserted that he was considering an above-guidelines sentence partially based on “recent

media accounts,” which he provided to counsel.           This news article from Cleveland.com

“incorporate[d] recent reports from the State of Ohio and the Cuyahoga County medical examiner

about the devastating [e]ffect[] that . . . cocaine, fentanyl, [and] other drugs are having [on the]

community.”

       After returning to the courtroom, the district court stated that Hubbard’s range needed to

be corrected in order to account for the statutory mandatory minimum sentence of 120 months’

imprisonment. Thus, the appropriate guidelines range was 63 to 78 months, based on an offense

level of 24. Hubbard’s counsel then argued in favor of a sentence within the original range of 46

to 57 months’ imprisonment, contending that Hubbard had a long history of substance abuse and

that the guidelines took into account the need to avoid recidivism. The government also requested

a sentence within the range of 46 to 57 months, noting that Hubbard “was at the lower end of this

organization.”




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Case No. 17-4192, United States v. Hubbard


       The district court found that an upward variance was just and necessary. The district court

noted that investigators located handguns, fentanyl, and crack in Hubbard’s residence. It then

examined Hubbard’s criminal history, which was “replete with drug trafficking activity” involving

firearms. Hubbard was convicted of drug trafficking offenses in 1996, 2004, and 2016. In light

of these prior convictions and the nature of the current offense conduct, the district court found

that Hubbard’s pattern of recidivism supported an increased sentence. As to Hubbard’s claimed

drug addiction, the district court was not convinced that he had abuse problems—but even if he

did, Hubbard had earlier opportunities to receive treatment.

       Finally, the district court highlighted the community’s opioid and cocaine epidemic. The

district court specifically stated, “Cocaine is increasingly being used with fentanyl and other

opiates. Last year, according to the media account I provided from Cleveland.com, The Plain

Dealer, last year over 1,100 people died of cocaine overdoses, up 61.9 percent from 2015.” Taking

into account this drug epidemic, the district court found that Hubbard, who continued to deal and

had failed “to learn from prior federal convictions,” should receive an above-guidelines sentence

in order “to protect the public, reflect the seriousness of the offense, improve the offender’s

conduct and condition.” It then sentenced Hubbard to 100 months’ imprisonment—22 months

above his guidelines range.

       Hubbard argues on appeal that the district court imposed a substantively unreasonable

sentence by giving undue weight to his criminal history and Ohio’s drug epidemic. He notes that

he only had three prior drug convictions, which were factored into his guidelines range. The

government responds that the district court was entirely within its discretion to impose the above-

guidelines sentence. The court thoroughly considered Hubbard’s criminal history, past recidivism,

and the nature of his offense conduct—factors properly examined under § 3553(a).



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Case No. 17-4192, United States v. Hubbard


                                    STANDARD OF REVIEW

       “The question of whether a sentence is reasonable is determined using the abuse-of-

discretion standard of review,” United States v. Carter, 510 F.3d 593, 600 (6th Cir. 2007), and

“[t]he defendant shoulders the burden of showing substantive unreasonableness,” United States v.

Woodard, 638 F.3d 506, 510 (6th Cir. 2011).

                                           DISCUSSION

       “[A] sentence may [be] substantively unreasonable where the district court [1] select[ed]

the sentence arbitrarily, [2] bas[ed] the sentence on impermissible factors, [3] fail[ed] to consider

pertinent § 3553(a) factors or [4] [gave] an unreasonable amount of weight to any pertinent factor.”

United States v. Jones, 489 F.3d 243, 252 (6th Cir. 2007) (first two alterations in original) (internal

citation and quotation marks omitted).        In determining whether a sentence is substantively

reasonable, we consider whether the length of the sentence imposed is “greater than necessary” to

achieve the sentencing goals of 18 U.S.C. § 3553(a). United States v. Tristan-Madrigal, 601 F.3d

629, 632–33 (6th Cir. 2010). When the district court imposes an above-guidelines sentence, we

“may not apply a presumption of unreasonableness.” Gall v. United States, 552 U.S. 38, 51 (2007).

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.” Id.

       Here, in support of the upward variance, the district court cited two main justifications:

(1) Hubbard’s criminal history; and (2) the ongoing opioid crisis in Ohio. With regard to the first

rationalization, the district court closely examined Hubbard’s three prior drug convictions. The

district court had discretion to consider Hubbard’s criminal history when determining an

appropriate sentence. See United States v. Lanning, 633 F.3d 469, 474–75 (6th Cir. 2011). Indeed,

under § 3553(a), district courts “shall consider . . . the history and characteristics of the defendant”



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Case No. 17-4192, United States v. Hubbard


and “the need for the sentence imposed . . . to afford adequate deterrence to criminal conduct.” 18

U.S.C. § 3553(a)(1), (a)(2)(B). Although Hubbard argued that his criminal history largely resulted

from his drug addiction, the district court considered this argument and rejected it. Hubbard has

not carried his burden of demonstrating that the district court abused its discretion in considering

Hubbard’s criminal history and pattern of recidivism when imposing an above-guidelines

sentence. This factor was pertinent, and Hubbard has not proven that the district court gave it “an

unreasonable amount of weight.” Jones, 489 F.3d at 252.

       Second, the district court discussed harm to the community resulting from drug trafficking.

The district court stated that cocaine “is as deadly as, in many ways, as the heroin and opioids that

[are] ravaging our community. But this defendant not only has cocaine, he also has fentanyl which

is killing people in the streets. He has it all. He has crack. He has fentanyl. He has cocaine.

Large quantities.” The district court had discretion to vary from the guidelines on policy grounds.

See Spears v. United States, 555 U.S. 261, 265–66 (2009) (per curiam); United States v. Herrera-

Zuniga, 571 F.3d 568, 585 (6th Cir. 2009) (“[T]he authority of district courts to reject the

Guidelines on policy grounds follows inexorably from the Court’s holding in Booker that the

Guidelines are advisory only.”). The district court, therefore, was permitted to partially rely upon

the need “to protect the public from further crimes of the defendant,” 18 U.S.C. § 3553(a)(2)(C),

in light of the community’s serious drug epidemic.

       According to Hubbard, this factor—weighed heavily by the district court—was not

“directly related” to his conduct. Although the Cleveland.com article cited by the district court

mainly dealt with opiate trafficking, it also reported on the rate of cocaine overdoses involving

opioids. Hubbard only pled guilty to possession with intent to distribute cocaine, but his offense

conduct involved the possession of fentanyl, a synthetic opioid. The district court, therefore, did



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Case No. 17-4192, United States v. Hubbard


not abuse its discretion in considering this factor as part of the “the nature and circumstances of

the offense.” 18 U.S.C. § 3553(a)(1).

       Because the district court provided copies of the news article to counsel prior to sentencing,

the current matter is unlike United States v. Fleming, 894 F.3d 764 (6th Cir. 2018), in which this

court found that the same district court imposed the defendant’s sentence in a procedurally

unreasonable manner because it did not mention the article, or the possibility of an upward

variance, until the sentencing hearing. Id. at 766–67. Rather, this case resembles United States v.

Robinson, 892 F.3d 209 (6th Cir. 2018). In Robinson, this court ruled that the defendant’s above-

guidelines sentence was not substantively unreasonable. The same district court had, like in this

case, “stressed as significant factors [the defendant]’s criminal and recidivist history, and the need

to deter him from committing more crimes, and thus protect the public.” Id. at 214. The district

court had also provided copies of two reports about overdose deaths from heroin, fentanyl, and

other drugs in the local area to counsel before sentencing and relied upon information from those

reports when imposing the defendant’s sentence. Id. at 215. This court concluded that “[t]he

district court did not abuse its discretion in considering the effect of the opioid epidemic in Ohio.”

Id. In short, the court found “no abuse of the district court’s sentencing discretion.” Id. at 217.

       In sum, the factors cited by the district court—including Hubbard’s criminal history and

pattern of recidivism, as well as the drug epidemic “ravaging” the Northern District of Ohio—

justify the extent of the upward variance. Gall, 552 U.S. at 51; see United States v. Grossman,

513 F.3d 592, 596 (6th Cir. 2008) (stating that the court “must give due deference to the district

court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance”).

Consequently, the fact that we “might reasonably have concluded that a different sentence was

appropriate is insufficient to justify reversal of the district court.” Gall, 552 U.S. at 51. Hubbard



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Case No. 17-4192, United States v. Hubbard


has failed to demonstrate that the district court abused its discretion and imposed a substantively

unreasonable sentence.

       AFFIRMED.




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