NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0470n.06
No. 08-5998 FILED
Aug 03, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
ONNIE NESBITT, aka OMIE NESBITT, ) WESTERN DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
______________________________ ) OPINION
)
Before: GILMAN and WHITE, Circuit Judges; and WATSON District Judge.*
HELENE N. WHITE, Circuit Judge. Defendant Onnie Nesbitt (Nesbitt) appeals his 235-
month sentence, imposed after he pleaded guilty of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g), asserting that it is both procedurally and substantively unreasonable.
We disagree, and AFFIRM.
The presentence report (PSR) stated regarding the instant offense:
4. At approximately 9:35 p.m. on May 22, 2003, Milan Police Department (MPD)
Lt. Terry Jones was advised by the MPD dispatcher that the defendant, Omie (Onnie)
Nesbitt, a previously convicted felon, had been at the home of his ex-wife, Evie
Nesbitt . . . in violation of an Order of Protection. Lt. Jones was further advised that
Mr. Nesbitt was in possession of a firearm and that he had fired one or more shots
inside the residence of Mrs. Nesbitt. Since the shot was fired, the defendant had fled
the aforementioned residence in a gray Mazda car driven by his brother, Kenneth
Nesbitt.
*
The Honorable Michael H. Watson, United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 08-5998
United States v. Nesbitt
5. Shortly after receiving the aforementioned report, Lt. Jones observed a vehicle
matching the description provided by Evie Nesbitt. . . . According to Lt. Jones[’]
report, Omie Nesbitt exited the suspect vehicle and started advancing towards him.
Lt. Jones then drew his weapon and ordered the defendant to get on the ground. Mr.
Nesbitt refused to comply . . . and instead began walking backwards, in the direction
of a small patch of woods . . . A short time later, Mr. Nesbitt did return to the scene
of the vehicle stop, at which time he was placed under arrest. A search of the
defendant’s person yielded two (2) live rounds of .38 caliber ammunition and one (1)
fired .38 caliber shell casing. A search of the area into which Mr. Nesbitt had
retreated on foot resulted in the discovery of two (2) firearms, . . . one (1) Arminius,
Model HW38, .38 caliber revolver, . . . and one (1) Smith & Wesson, Model 10-8,
.38 caliber revolver . . . .
6. [T]he defendant voluntarily admitted ownership of the firearms . . . .
7. Shortly after Mr. Nesbitt’s arrest . . . . Evie Nesbitt provided a sworn statement
. . . [and] advised that Omie Nesbitt, against whom she had recently taken out an
Order of Protection, had entered her home, while holding a firearm . . . pointed the
weapon . . . and held it on her, while repeatedly telling her that he was going to kill
her that night. Mr. Nesbitt refused to let her leave the residence. At one point, Mr.
Nesbitt did fire one (1) shot . . . not [] in the direction of Evie Nesbitt. . . .
....
9. Eventually . . . Kenneth Nesbitt [knocked on the door], instructed Omie to let go
of Evie and to leave the residence with him. Omie complied . . . As he left the
residence, Omie informed Evie Nesbitt that he would be back. Moments after . . .
Evie Nesbitt called 911, ultimately resulting in the above-described vehicle stop and
arrest. [PSR prepared June 3, 2008, at 4-6.]
The PSR categorized Nesbitt as an armed career criminal, as defined in U.S.S.G. § 4B1.4, and
calculated a total offense level of 31. PSR Worksheet C listed 17 prior convictions, resulting in 26
total criminal history points, which placed Nesbitt in criminal history category VI. Nesbitt’s
Guidelines range was 188 to 235 months of imprisonment.
The PSR stated that Nesbitt has an 8th grade education, and that he and his three siblings grew
up in “an extremely dysfunctional home environment, which included frequent spouse abuse by their
chronically-alcoholic father.” Regarding his mental and emotional health, the PSR stated that
No. 08-5998
United States v. Nesbitt
extensive court-ordered psychological evaluation at the Federal Bureau of Prisons (BOP) in July
2004 revealed that Nesbitt “was in the extremely low range of intellectual functioning as compared
to his age peers, with an IQ of 51,” and that he was diagnosed with schizoaffective disorder, alcohol
abuse, and adult antisocial behavior. The PSR noted that before his current federal detention, Nesbitt
was committed to a mental health institution five times between January 28, 2003 and January 20,
2004, and that during the first four of those hospitalizations he suffered “command auditory
hallucinations, visual hallucinations, paranoid delusions, and suicidal and homicidal ideations.”
The district court adopted the PSR’s Guidelines range calculation and sentenced Nesbitt to
235 months’ imprisonment, followed by 5 years of supervised release. The court declined defense
counsel’s request that it order Nesbitt be placed in a federal medical facility. This appeal ensued.
“[A]ppellate review of sentencing decisions is limited to determining whether they are
‘reasonable.’” Gall v. United States, 552 U.S. 38, 46 (2007). “[C]ourts of appeals must review all
sentences . . . under a deferential abuse-of-discretion standard.” Id. at 41; United States v.
Grossman, 513 F.3d 592, 595 (6th Cir. 2008). The review is two-tiered: we must review for both
procedural and substantive error. Gall, 552 U.S. at 51.
In this circuit, a sentence that falls within the Guidelines enjoys “a rebuttable presumption
of reasonableness.” United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006). Nevertheless, a
sentencing court must still “explain to the parties and the reviewing court its reasons for imposing
a particular sentence.” United States v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006).
I. Procedural Reasonableness
No. 08-5998
United States v. Nesbitt
Nesbitt asserts that his sentence is procedurally unreasonable because the district court either
failed to consider his severe mental health issues, or failed to adequately explain how its
consideration of the issue entered into its decision to sentence him at the high end of the Guidelines
range.
Under Gall, procedural errors include “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a)
factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence . . .” Gall, 552 U.S. at 51.
Nesbitt’s position paper objecting to the PSR argued that his serious mental health conditions
were factors warranting a departure:
Given the fact that Defendant suffers from multiple serious mental health
impairments as shown in the presentence report, a sentence within the recommended
range is greater than necessary to address the statutory concerns. Defendant is in
need of ongoing mental health treatment and should be housed in a mental health
facility [hospital]. An extended incarceration by itself, will not address Defendant’s
serious ongoing medical needs. All it will do is warehouse Defendant for that period
of time. It is unlikely that Defendant will be able to take advantage of nor benefit
from the programs offered by the Bureau of Prisons, given his mental retardation.
....
Defendant requests that he be recommended for placement in a Bureau of
Prisons medical facility or hospital. [R. 84.]
Nonetheless, the Government is correct that Nesbitt’s counsel did not object to the court’s
calculation of Nesbitt’s sentence at the conclusion of the sentencing hearing, when the district court
asked counsel whether there were “any other issues that have been raised that I’ve not yet ruled upon
or any issues now presented that need ruling upon?” We thus review Nesbitt’s claim of procedural
unreasonableness for plain error. See United States v. Vonner, 516 F.3d 382, 385-86 (6th Cir. 2008)
No. 08-5998
United States v. Nesbitt
(en banc) (applying plain-error review because the defendant, after having been given opportunity
to object, had not expressly objected to the adequacy of the court’s explanation for the sentence at
the sentencing hearing).
After hearing from counsel at sentencing, the district court noted its agreement with the
probation officer’s calculation of the Guidelines range, heard from Nesbitt, and then stated:
THE COURT: Mr. Nesbitt, your case is an unusual one. What makes it unusual is
that it’s perhaps the longest pending criminal case this court has ever had. Your case
started in 2003 and here we are in 2008 and we’re still working on your case. That
has been brought about as a result of numerous evaluations that we’ve had. You are
probably the most evaluated defendant that this court has ever seen. I think there
were at least three major evaluations. All those evaluations, Mr. Nesbitt, lead the
court to conclude that you have some serious mental issues that have contributed to
your life of crime. But the record before this court is that you are competent to
proceed and were sane, or at least not insane, at the time of this offense. So that’s the
only evidence this court has to proceed on.
In deciding your sentence I have to look at several issues. One . . . factor I
have to look at is the guideline range, and the guidelines in your case suggest that I
should sentence you somewhere to a term of imprisonment of 188 to 235 months.
But that’s not the only factor. I have to look at other factors.
I have to look at the nature of this offense, and this was a serious crime, Mr.
Nesbitt. It’s fortunate that someone wasn’t killed or seriously injured the night of
this incident. Holding someone against their will in their house at gunpoint – or in
a house at gunpoint is a serious crime.
I also have to consider the history and characteristics of you, and you have a
long and troubled history. You have 26 criminal history points, and I think that’s
among the top two or three that I have ever seen. You may be the highest criminal
history that this court has dealt with. Perhaps you’re not the top defendant, but
you’re near the top. In addition, you have some 19 convictions that didn’t result in
any criminal history points. So you’ve really got a lot more criminal history than 26
points, but 19 of them didn’t result in any points. So you have a long, long history
of criminal behavior.
But what troubles me about yours is the nature of your criminal history. Now,
a lot of your criminal history are disorderly conduct and public drunkenness and DUI,
No. 08-5998
United States v. Nesbitt
but you have perhaps more assaults and batteries and aggravated offenses than this
court has ever seen. You have been a very violent person. And it appears fortunate
to me, Mr. Nesbitt, that someone hasn’t been more seriously injured or killed as a
result of all your assaultive behavior. You are a very dangerous person.
Now, it may be that you’re dangerous when you aren’t medicated, but when
you’re out on the streets, you obviously are not being medicated because you have
perhaps the most . . . lengthy violent history this court has seen in years. I have to
take that into account in deciding what your sentence should be.
I have to consider the availability of alternative sentences, and there are none
in this case that would protect society and appropriately punish you other than
incarceration.
I have to consider the need to give you a sentence similar to that received by
other people who have committed various offenses with similar backgrounds. It’s
hard to do in your case, Mr. Nesbitt, because I haven’t seen many people with a
similar background. But I don’t want to give you more time than they would get nor
do I want to give you less time.
I have to consider the need to protect society. And quite frankly, Mr. Nesbitt,
the only way I can protect society is to keep you away from society.
I have to send a message to other people that want to possess firearms after
they’re convicted of a felony, and the message is that there’s a serious penalty
attached to that.
I am also going to take into account the fact that you have had a long history
of mental illness, and that will be considered in the sentence as well.
So taking all those factors into consideration, Mr. Nesbitt, given your long
and unbroken chain of criminal activity, it’s my conclusion that a sentence of 235
months in the custody of the Bureau of Prisons is the only thing that will protect
society and appropriately punish you for this offense, which is enhanced by your long
and violent history.
Upon release from prison you’ll be placed on supervised release for five
years.
....
While you’re on supervised release . . . [y]ou’ll comply with . . . the following
additional conditions:
....
No. 08-5998
United States v. Nesbitt
That you participate in a program for mental health treatment as directed by
the probation officer, including outpatient or inpatient, whatever is necessary.
You’ll comply with all treatment conditions and/or recommendations as set
forth by the approved mental health treatment provider, to include strict adherence
to any prescribed medication regimen.
....
I’m not going to make a specific recommendation about a hospital
environment. The BOP knows Mr. Nesbitt’s background probably better than any
inmate in the institutional set up. They have complete records on Mr. Nesbitt. The
Bureau of Prisons will make the determination as to what type of incarceration or
what level of supervision Mr. Nesbitt needs. [R. 94 at 42-47.]
As the above-quoted sentencing colloquy demonstrates, the district court acknowledged and
clearly took into account Nesbitt’s long history of mental illness, his multiple evaluations, and his
need for medication, contrary to Nesbitt’s contention that the court failed to consider his severe
mental health issues. And the district court adequately explained how its consideration of those
issues played into its decision to sentence him at the high end of the Guidelines range. In doing so,
the district court noted that given Nesbitt’s protracted and extensive criminal history – which
included a number of assaultive and aggravated offenses – a sentence at the top of the Guidelines
range was needed to assure society’s protection, deter others, and appropriately punish him, while
also noting that it was taking into account his long history of mental illness.
The district court fulfilled its obligation to “ adequately explain the chosen sentence to allow
for meaningful appellate review and to promote the perception of fair sentencing.” Gall, 552 U.S.
at 50. Nesbitt has not shown that any procedural error, plain or otherwise, occurred in the district
court’s imposition of the 235-month within-the-Guidelines sentence, so his procedural
unreasonableness claim fails.
II. Substantive Reasonableness
No. 08-5998
United States v. Nesbitt
Nesbitt also contends that his sentence is substantively unreasonable because the district
court “failed to truly consider” his history and characteristics, and because the sentence, which will
likely warehouse him for 24 1/2 years without access to needed mental health treatment, will not
address his mental illness. He asserts that “a shorter sentence, or one that involved serious mental
health treatment, would be a more adequate sentence,” and that a 235-month sentence is greater than
necessary to comply with the § 3553(a) factors.
If the district court’s sentencing decision is procedurally sound, this court proceeds to
consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard. Gall, 552 U.S. at 51. “A sentence may be substantively unreasonable where the district
court ‘select[s] the sentence arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to
consider pertinent § 3553(a) factors or giv[es] an unreasonable amount of weight to any pertinent
factor.’” United States v. Collington, 461 F.3d 805, 808 (6th Cir. 2006) (quoting United States v.
Webb, 403 F.3d 373, 383 (6th Cir. 2005)). “The touchstone for our review [for substantive
reasonableness] is whether the length of the sentence is reasonable in light of the § 3553(a) factors.”
United States v. Tate, 516 F.3d 459, 469 (6th Cir. 2008).
Nesbitt does not argue that the district court selected his sentence arbitrarily or based the
sentence on impermissible factors. His argument as we understand it is that the court failed to give
enough weight to his mental health history and characteristics, while giving too much weight to his
criminal history.
Although the district court declined Nesbitt’s counsel’s request to order Nesbitt placed in a
federal medical facility, it left the placement decision to the BOP because the BOP was most familiar
No. 08-5998
United States v. Nesbitt
with Nesbitt’s extensive mental health evaluations and treatment while in custody. Nesbitt cites no
authority to support the proposition that a sentence is substantively unreasonable by virtue of a
district court declining to order placement in a medical facility.
After considering the parties’ arguments, hearing from Nesbitt, and considering the PSR, the
district court provided an analysis of the § 3553(a) factors, and set forth the reasoning behind its
determination to sentence Nesbitt at the high end of the Guidelines range. See colloquy, quoted
supra. As mentioned, the district court noted that given Nesbitt’s protracted and extensive criminal
history – which included a number of assaultive and aggravated offenses – a sentence at the top of
the Guidelines range was needed to assure society’s protection, deter others, and appropriately
punish him, while also noting that it was taking into account his serious mental health problems.
“We do not require a rote recitation of § 3553(a) factors but rather an explanation of why the
district chose the sentence it did.” United States v. Smith, 474 F.3d 888, 892 (6th Cir. 2007). The
district court more than adequately explained why it chose the 235-month sentence.
We conclude that the length of the sentence is reasonable in light of the § 3553(a) factors,
see Tate, 516 F.3d at 469, and that Nesbitt’s substantive unreasonableness claim thus fails.
For the foregoing reasons, we AFFIRM.