NOT RECOMMENDED FOR PUBLICATION
File Name: 07a0510n.06
Filed: July 19, 2007
No. 06-1113
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
JOHN LYNN KAVO, ) WESTERN DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
) OPINION
Before: MOORE and GILMAN, Circuit Judges; and FORESTER, District Judge.*
RONALD LEE GILMAN, Circuit Judge. John Lynn Kavo, a Native American, pled
guilty to sexually assaulting his former girlfriend on an Indian reservation. On remand from a prior
appeal, the district court resentenced Kavo to 121 months of imprisonment, the same sentence that
he had originally received. He argues in this second appeal that his sentence is both procedurally
and substantively unreasonable because the district court gave too much weight to the Sentencing
Guidelines and failed to adequately take into account certain mitigating factors. For the reasons set
forth below, we AFFIRM the judgment of the district court.
I. BACKGROUND
*
The Honorable Karl S. Forester, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
No. 06-1113
United States v. Kavo
Kavo pled guilty in August of 2003 to sexually assaulting I.B., a former girlfriend of his, at
the Bay Mills Indian Community in Chippewa County, Michigan, in violation of 18 U.S.C.
§ 2241(a)(1). Because Kavo’s arguments address the underlying circumstances of the assault, and
because this court has already outlined the factual background in Kavo’s first appeal, we reiterate
our prior factual recitation here:
After spending the evening at a local casino with the parents of the victim in this case
(identified as “I.B.” in the indictment), the defendant was invited to come to their
home “for drinks.” I.B., described as the defendant’s “former girlfriend,” was also
at the casino with her parents and went to their home as well. At approximately
5:30 a.m., I.B. announced she was leaving the gathering. Kavo convinced her to give
him a ride to the residence he shared with his sister, but upon arriving at the home,
the defendant attempted to kiss and fondle I.B. against her will. When she began
honking the car horn to draw attention to the situation, Kavo forced himself into the
driver’s seat and backed the vehicle into the driveway.
Although the presentence report claims that Kavo then “forced” I.B. to get out of the
car and enter his house, the defendant denied using any physical force and, according
to the government, the victim “d[id] not recall how she got into the [defendant’s]
home.” In any event, Kavo’s and I.B.’s entrance into the residence awoke the
defendant's sister, who was sleeping in the living room. Once the sister returned to
her bed, Kavo closed the door to that room and began kissing I.B. I.B., however,
“started saying no, she wanted to go home.” At that point, the defendant picked up
I.B., carried her downstairs to his basement bedroom, and, against I.B.’s wishes,
removed the woman’s pants and underwear and digitally penetrated the victim’s
vagina before she was able to escape and report the assault.
Initially, Kavo told the authorities that the digital penetration was consensual. Two
weeks later, however, “[h]e admitted he was aware the victim did not want to have
sexual contact with him, but advised he did not think she would get as upset as she
did, based upon his intoxicated state and their past relationship.”
United States v. Kavo, 128 F. App’x 447, 449 (6th Cir. 2005).
At Kavo’s original pre-Booker sentencing hearing, the district court calculated his Guidelines
range to be between 121 and 151 months of imprisonment. Id. at 449. This range resulted from
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United States v. Kavo
Kavo’s criminal history category of I and his offense level of 32, which included a four-level
enhancement due to his abduction of I.B. Id. The court sentenced Kavo to 121 months of
imprisonment, the low end of Kavo’s then-mandatory Guidelines range. Id.
Kavo appealed the application of the four-level abduction enhancement, but this court
concluded that the enhancement properly applied. Id. at 451-52. In light of the intervening Supreme
Court holding in Booker, however, which rendered the Sentencing Guidelines advisory, Kavo’s case
was remanded to the district court for resentencing. Id. at 453.
On remand, the district court again sentenced Kavo to 121 months’ imprisonment. Kavo then
timely filed this second appeal, arguing that his sentence is both procedurally and substantively
unreasonable.
II. ANALYSIS
A. Standard of review
We review sentences for reasonableness. United States v. Collington, 461 F.3d 805, 807 (6th
Cir. 2006). This standard has two components: procedural reasonableness and substantive
reasonableness. Id. at 808. “A sentence may be procedurally unreasonable if the district judge fails
to consider the applicable Guidelines range or neglects to consider the other factors listed in 18
U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without
such required consideration.” Id. In addition, a sentence may be “substantively unreasonable when
the district court selects the sentence arbitrarily, bases the sentence on impermissible factors, fails
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United States v. Kavo
to consider pertinent § 3553(a) factors or gives an unreasonable amount of weight to any pertinent
factor.” Id. (brackets and quotation marks omitted).
B. Procedural reasonableness
We note at the outset that the district court resentenced Kavo to 121 months’ imprisonment,
the low end of his sentencing range under the advisory Guidelines. Kavo does not challenge the
district court’s Guidelines calculation and we find no error in it, so the sentence carries a rebuttable
presumption of reasonableness. See Rita v. United States, No. 06-5754, 2007 WL 1772146, at *6
(U.S. June 21, 2007) (approving the Fourth Circuit’s application of a nonbinding, rebuttable
presumption of reasonableness for a within-Guidelines sentence, and noting that “in the mine run
of cases, it is probable that the [within-Guidelines] sentence is reasonable”); United States v.
Williams, 436 F.3d 706, 708 (6th Cir. 2006) (affording a rebuttable presumption of reasonableness
to a within-Guidelines sentence). Kavo attempts to rebut this presumption with three distinct
procedural arguments. Specifically, Kavo claims that the district court (1) failed to address his
mitigation arguments, (2) failed to consider his request for a variance, and (3) gave unreasonable
weight to the Guidelines in determining his sentence.
Regarding Kavo’s first argument, the transcript of his second sentencing hearing reveals that
several related mitigation arguments were raised before the district court. Kavo argued that his
offense did not, in fact, result in serious bodily injury to I.B.; that, because no serious injury resulted,
the court should consider a departure for aberrant behavior; that the sexual act he perpetrated
involved digital rather than penile penetration; that his criminal history is “fairly limited”; that the
victim was abducted only a “short distance”; and that “little force” was used in the offense.
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United States v. Kavo
In fact, the district court explicitly acknowledged nearly all of these mitigating factors before
sentencing Kavo. The court explained:
I recognize that Mr. Kavo did not engage in behavior that resulted in lasting serious
injuries to the victim. I recognize that his criminal background is all tied up with
alcohol abuse. And I recognize that there are other ways to imagine an abduction
precedent to a sexual assault occurring that would involve more danger, more
likelihood of injury than the way in which this abduction factor present [sic]
involved.
After calculating Kavo’s proper Guidelines sentence, the district court again emphasized the “lack
of serious lasting physical injury” involved in Kavo’s offense. Nevertheless, the court ultimately
held that 121 months of imprisonment was “sufficient to provide for punishment and deterrence,”
yet also “fair” and “not disproportionate.”
These statements by the district court demonstrate that it explicitly took Kavo’s mitigation
arguments into account in sentencing him to a prison term at the low end of his Guidelines range.
This court has held that “[w]hen a district court adequately explains why it imposed a particular
sentence, especially one within the advisory Guidelines range, we do not further require that it
exhaustively explain the obverse—why an alternative sentence was not selected—in every instance.”
United States v. Gale, 468 F.3d 929, 940 (6th Cir. 2006) (emphasis omitted).
Kavo next contends that the district court failed to take into account his argument for a
departure or variance on the basis of aberrant behavior. Under the Guidelines, a defendant may
qualify for an aberrant-behavior departure where he is charged with a single criminal offense that
was committed without significant planning, was of limited duration, and represents a marked
deviation from an otherwise law-abiding life. U.S.S.G. § 5K2.20. Kavo’s counsel properly
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conceded at the resentencing hearing, however, that the Guidelines specifically preclude departing
on the basis of aberrant behavior in the case of sexual assaults such as Kavo’s. This is because
Kavo’s conviction under § 2241(a)(1) is deemed by the Guidelines to have involved “serious bodily
injury,” a circumstance under which the departure is unavailable. See U.S.S.G. §§ 5K2.20(c)(1) and
1B1.1 cmt. n.1(L). Although the district court did not state for the record that it considered a
variance on the basis of aberrant behavior, it explicitly took into account Kavo’s supporting
arguments that his crime involved little planning, that the victim did not sustain serious physical
injuries, and that Kavo’s criminal background was not extensive. No procedural error, therefore,
resulted.
Kavo’s final procedural argument asserts that the methodology by which the district court
determined his sentence assigned too much weight to the Guidelines. This argument is refuted by
the district court’s express acknowledgment that
the guidelines are advisory as calculated, and that the factors under Title 18, 3553(a)
one through seven are to be adequately taken into account as well by a sentencing
court in its discretion in imposing a sentence.
The court went on to explain its post-Booker sentencing methodology, which the court described as
calling for it
to at least begin with consideration of a correctly calculated guideline range; then to
determine whether there are any reasons under the guidelines themselves to depart
either upward or downward. . . . And if there are to do it and further to try to
examine whether there are any reasons to vary . . . from the . . . guidelines range for
reasons that are contained in 3553 one through seven. And if there are to do it,
whether it’s to vary up or to vary down from the . . . guideline range.
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Contrary to Kavo’s argument, this court has endorsed a methodology akin to that which the
district court employed here—using the Guidelines range as a “starting point” of analysis and then
proceeding to take the other § 3553(a) factors into account. See, e.g., United States v. Ferguson, 456
F.3d 660, 667 (6th Cir. 2006) (approving as reasonable a sentencing procedure in which the district
court “started with the Guidelines calculation” and then applied the other § 3553(a) factors). To the
extent that Kavo faults the district court for beginning its determination specifically at the middle
(rather than the bottom) of his applicable Guidelines range, this created no procedural error because
the court plainly took the entire range as well as the other § 3553(a) factors into account.
Other § 3553(a) factors specifically addressed by the district court include Kavo’s history of
alcohol abuse, the nature and circumstances of his crime, the need to provide Kavo with treatment
for his alcohol abuse, and the need to provide adequate but not excessive punishment and deterrence.
The district court’s methodology thus fulfilled the procedural requirement of correctly calculating
Kavo’s Guidelines range and then “balanc[ing] that calculation against the other § 3553(a) factors.”
United States v. Borho, 485 F.3d 904, 908 (6th Cir. 2007). We therefore conclude that Kavo’s
sentence is procedurally reasonable.
C. Substantive reasonableness
Kavo argues that, due to the same mitigating factors mentioned above, his sentence exceeds
that which could be characterized as “sufficient, but not greater than necessary” to fulfill the goals
of sentencing. 18 U.S.C. § 3553(a). He cites no caselaw, however, in which this court has ever
overturned as substantively unreasonable a procedurally sound sentence imposed at the bottom end
of the applicable Guidelines range. Moreover, Kavo’s argument that his abduction of and sexual
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assault on I.B. was not as bad as it might otherwise have been does not compel a finding of
unreasonableness here, particularly where at least part of that fortuity may be credited to I.B.’s timely
escape. Kavo’s mitigation arguments, in sum, fail to persuade us that his within-Guidelines sentence
is substantively unreasonable.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.
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