United States v. Sims, 012920 FED6, 18-3837

Docket Nº:18-3837
Opinion Judge:SILER, CIRCUIT JUDGE
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DONALD SIMS, Defendant-Appellant.
Judge Panel:BEFORE: SILER, STRANCH, and NALBANDIAN, Circuit Judges. JANE B. STRANCH, Circuit Judge, dissenting.
Case Date:January 29, 2020
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

DONALD SIMS, Defendant-Appellant.

No. 18-3837

United States Court of Appeals, Sixth Circuit

January 29, 2020

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

BEFORE: SILER, STRANCH, and NALBANDIAN, Circuit Judges.

SILER, CIRCUIT JUDGE

In 2016, Donald Sims-a convicted felon-sold a firearm and ammunition to a confidential informant ("CI") in violation of 18 U.S.C. § 922(g)(1), his second felony possession offense. Sims was arrested and indicted for the offense, and pleaded guilty without a plea agreement. The district court at sentencing emphasized Sims's prior 34-month sentence for his first felony possession conviction, and the additional 10-month sentence he served for violating his supervised release in the prior case. The district court then varied upward from the Sentencing Guidelines' recommended 27- to 33-month sentence and imposed a sentence of 48 months' imprisonment. Sims now appeals the substantive reasonableness of his sentence. We AFFIRM.

I.

In 2010, Sims was convicted of being a felon in possession of ammunition and sentenced to 34 months' imprisonment followed by a three-year term of supervised release. While serving his term of supervised release, he twice tested positive for marijuana use, failed to submit a report to his probation officer, and absconded from supervision. In 2014, the district court revoked Sims's supervised release and imposed a 10-month sentence of imprisonment for his violations.

Then, in 2016, Sims sold a firearm and ammunition to a CI and was subsequently indicted for unlawful possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1). He later pleaded guilty to the charge without a plea agreement.

At his sentencing hearing, the district court applied a base offense level of 14, and gave a 2-level reduction for acceptance of responsibility for a total offense level of 12. Based on Sims's criminal history category of V, the resulting Sentencing Guidelines range was 27-33 months.

Defense counsel, arguing for a below or low-end Guideline sentence, noted Sims's "difficult childhood." Defense counsel also noted that in the two-year period between his offense and arrest, Sims had married and was helping raise his wife's grandchild, was actively involved with his own children, and had lived in the community without incident. The defense submitted eleven letters of support substantiating the changes he had made. Sims's landlord, also his employer, submitted a letter indicating Sims was "a very hard worker" with "excellent attendance" and "very impressive work skills," and that he intended to re-hire Sims when he was released. Defense counsel pointed out that Sims had "maintained employment" and had taken a substance abuse class to address his prior marijuana use. While acknowledging the court's concern over Sims's criminal record, defense counsel also noted that Sims had committed only traffic offenses since the time of the instant offense, had readily admitted his conduct when confronted by law enforcement prior to his indictment, and contended that his prior convictions included minor misdemeanors for marijuana possession and disorderly conduct.

The district court emphasized Sims's prior 34-month sentence for his first felon-in-possession conviction, and his further 10-month sentence for violating his supervised release in that case. The court explained that it was considering varying above the Guidelines range because Sims was "not a defendant who [didn't] know that [he was] facing a federal prosecution for possessing a gun and ammunition" but rather he went "out and [did] it again," despite knowing "what the consequences would be here in federal court." Accordingly, since his prior term of imprisonment had failed to "send [Sims] a message," the court found it necessary to "remove him from society so that he understands he cannot go out and get guns and then put them in the hands of other people, many times people that can't have them." The court noted that Sims's positive interactions in the community in the two-year gap between his offense and arrest were factors that would "count as I decide how much the upward variance will be because I don't think the guidelines are sufficient for individuals who spent 34 months on one gun case and another ten on a violation." It further noted that Sims's juvenile record included "another firearm offense . . . which is serious, as well."

For his part, Sims admitted that his decision to cease his marijuana use occurred during his incarceration, and that he had been using marijuana when he was arrested in March 2018. Sims stated that he took "full responsibility for my offense conduct."

In discussing the applicable § 3553(a) factors, the court stated that it had "carefully considered the matter," including "review[ing] the sentencing memorandum submitted by the defendant, the letters that were submitted in support and the certificates" in deciding "an appropriate sentence in the matter." It noted Sims's continued contact with his three minor children, and that he planned to live "with his wife and two grandchildren . . . upon his release from custody in this case." As to the offense conduct, the court noted that Sims "did not just sell the gun, but he also sold the ammunition to . . . make certain the firearm could be utilized." It noted Sims's juvenile record and "14 adult convictions ranging from no operator's license to burglary." The court acknowledged Sims's difficult upbringing and prior substance abuse, including "test[ing] positive for drugs at the time of his appearance through pretrial services" and Sims's belief that "he could benefit from substance abuse counseling."

The court also acknowledged that although an upward variance might result in "some disparity between defendants with similar records and similar past[s]," it believed that a Guidelines sentence would be "insufficient . . . because of the defendant's prior record and history." The court explained that Sims had "been involved with the law since the age of 16" and despite being incarcerated and placed on probation previously, none of his past "sanctions ha[d] deterred him from being involved with guns," including his "prior felon in possession conviction in our district" that resulted in a 34-month sentence, violation of his supervised release, and additional 10-month sentence. Despite these prior convictions, the court noted that Sims "continue[d] to possess firearms knowing he's unable to do so," thus posing "a risk to the community by possessing and selling firearms." It concluded that since Sims's prior 34- and 10-month sentences were insufficient "to get the defendant's attention, to understand he can't have a gun, then the 27- to 33-month range isn't sufficient." The court indicated that it had planned to vary upward to a 60-month sentence, representing half the applicable statutory maximum penalty, but had instead decided to apply a less substantial upward variance, and imposed a 48-month sentence, based on the defense's mitigating arguments.

Defense counsel objected to the upward variance as unwarranted, arguing that the court had placed too much weight on the defendant's record, as opposed to the sentencing factors raised by the defense. The court again explained its sentence, and emphasized its prior intention to impose a 60-month sentence, before the defense's mitigating arguments, "reread[ing] your briefing," and considering that Sims had "readily admitted his conduct." Sims now appeals the substantive reasonableness of his above-Guidelines sentence.

II.

We review a district court's sentencing decision "under a deferential abuse-of-discretion standard" and "take into account the totality of the circumstances" in determining a sentence's substantive reasonableness. Gall v. United States, 552 U.S. 38, 41, 51 (2007).1 "An abuse of discretion is established where the reviewing court is left with a definite and firm conviction that the district court committed a clear error of judgment." Coach, Inc. v. Goodfellow, 717 F.3d 498, 505 (6th Cir. 2013).

"A sentence will be found to be substantively unreasonable when the district court selects the sentence arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent § 3553(a) factors[, ] or gives an unreasonable amount of weight to any pertinent factor." United States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008) (internal quotation marks and citation omitted). "The essence of a substantive-reasonableness claim is whether the length of the sentence is greater than necessary to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a)." United States v. Tristan-Madrigal, 601 F.3d 629, 632-33 (6th Cir. 2010) (internal quotation marks omitted). On review, 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. The fact that the appellate court 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; see United States v. Vasquez, 560 F.3d 461, 473 (6th Cir. 2009) (noting that the court "give[s] due deference to the district court's application of the guideline to the facts." (internal quotation marks and citation omitted)).

Sims argues that at sentencing, the district court "did not explain how the facts and circumstances of Sims's offense and his personal and criminal history removed this case from the 'heartland' of felon-in-possession cases," and "gave an unreasonable amount of weight to...

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