NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0097n.06
No. 10-3860
FILED
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT Jan 26, 2012
LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE NORTHERN
) DISTRICT OF OHIO
HERSIE WESSON, )
)
Defendant-Appellant. )
)
BEFORE: CLAY, ROGERS, and DONALD, Circuit Judges.
ROGERS, Circuit Judge. Defendant Hersie Wesson appeals the 60-month sentence he
received after pleading guilty to being a felon in possession of a firearm. Wesson challenges his
sentence on two grounds: (1) that the district court miscalculated his criminal history and, therefore,
the applicable guidelines range, and (2) that his sentence was substantively unreasonable. Both
claims lack merit. First, the district court did not miscalculate Wesson’s criminal history. Second,
Wesson has failed to rebut the presumption that his within-guidelines sentence was substantively
reasonable.
In December 2009, Cleveland police officers stopped a car with expired license plates. As
the officers approached the car, Wesson exited the passenger side and ran. During the ensuing chase,
Wesson pulled a gun from his pocket and threw it onto the ground. Wesson was eventually
apprehended and the officers recovered the gun, as well as ammunition which Wesson had dropped
while running.
No. 10-3860
United States v. Hersie Wesson
In January 2010, a federal grand jury indicted Wesson, charging him with being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g). Wesson, who had a prior state felony
conviction for drug trafficking, pled guilty to the charge without a plea agreement.
The Presentence Report (PSR) recommended a total offense level of 17 and a criminal history
category of VI based on 13 criminal history points. The PSR’s recommended guidelines range was
51 to 63 months’ imprisonment.
Wesson objected to this range and argued that the probation officer who prepared the PSR
made two mistakes in calculating his criminal history. First, Wesson argued that the probation
officer erroneously assessed two criminal history points to each of his three sentences for juvenile
crimes committed in 2005, for a total of six points. Wesson argued that since he was sentenced for
these crimes on the same day, the probation officer should have counted the sentences as a single
prior sentence worth two points, rather than separate sentences totaling six points. Second, Wesson
argued that the probation officer should not have assessed one criminal history point to either of his
two 2010 drug convictions because he had not yet been sentenced for either crime. Wesson also
filed a sentencing memorandum and motion for a downward departure and/or variance, requesting
a sentence of 37 months’ imprisonment.
At the sentencing hearing, the district court began by overruling Wesson’s objections to the
PSR. First, the district court found that the probation officer properly assessed two criminal history
points to each of Wesson’s three sentences for juvenile crimes committed in 2005, for a total of six
points, because each crime was separated by an intervening arrest and, therefore, the sentences for
these crimes should be counted separately. Second, the district court found that the probation officer
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United States v. Hersie Wesson
properly assessed one criminal history point to each of Wesson’s two 2010 drug convictions because
Wesson had already pled guilty to both crimes and, under the federal sentencing guidelines, these
convictions counted as if they constituted prior sentences.
The district court then noted that the probation officer had not identified any factors
warranting a downward departure or variance and proceeded to consider the § 3553(a) factors in
order to fashion a sentence that was “sufficient but not greater than necessary to comply with the
purposes set forth in 3553(a).” The district court discussed, at length, the nature and circumstances
of the offense; Wesson’s history and characteristics; the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, to provide just punishment for the offense,
to afford adequate deterrence to criminal conduct, to protect the public from further crimes of
Wesson, and to provide Wesson with needed treatment; and the need to avoid unwarranted sentence
disparities. The district court then sentenced Wesson to 60 months’ imprisonment.
Wesson filed a timely notice of appeal.
Wesson’s sentence was procedurally reasonable. Contrary to Wesson’s arguments, the
district court did not miscalculate his criminal history and, therefore, the applicable guidelines range.
First, the district court properly assessed two criminal history points to each of Wesson’s three
sentences for juvenile crimes committed in 2005, for a total of six points, because the three crimes
were each separated by an intervening arrest. As Wesson acknowledges, he was arrested on March
1, 2005 for the unauthorized use of a motor vehicle, was arrested again on April 20, 2005 for the
unauthorized use of another motor vehicle, and was arrested yet again on September 6, 2005 for
aggravated robbery. Although Wesson was sentenced for all three crimes on the same
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United States v. Hersie Wesson
day—December 16, 2005—the sentencing guidelines clearly state that “[p]rior sentences always are
counted separately if the sentences were imposed for offenses that were separated by an intervening
arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense).”
U.S.S.G. § 4A1.2(a)(2). The district court carefully considered Wesson’s arguments, but followed
the plain language of the sentencing guidelines and correctly found that Wesson’s three sentences
in 2005 should be counted separately when assessing criminal history points.
Second, the district court properly assessed one criminal history point to each of Wesson’s
two 2010 state drug convictions. Wesson is correct that, at the time of his federal sentencing in this
case, he had not yet been sentenced for either crime. The sentencing guidelines, however,
unambiguously state that “[w]here a defendant has been convicted of an offense, but not yet
sentenced, such conviction shall be counted as if it constituted a prior sentence.” U.S.S.G. §
4A1.2(a)(4). This statement includes guilt established by a plea of guilty. Id. Since Wesson
concedes that, at the time of his federal sentencing in this case, he had already pled guilty to both
drug crimes, the district court properly assessed one criminal history point to each crime. See also
United States v. Fisher, 27 F. App’x 558, 562 (6th Cir. 2001).
Wesson’s sentence was also substantively reasonable. This court affords Wesson’s 60-month
sentence a presumption of reasonableness because it falls within the applicable guidelines range.
See Rita v. United States, 551 U.S. 338, 347 (2007). Wesson has failed to rebut this presumption.
First, Wesson’s argument that the district court gave an unreasonable amount of weight to
his criminal history is without merit. It is true that the district court repeatedly discussed Wesson’s
lengthy and alarming criminal history, including his convictions for attempted robbery, unauthorized
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United States v. Hersie Wesson
use of a motor vehicle, aggravated robbery, trafficking in drugs, disorderly conduct, and attempted
trafficking in drugs. But this court has recognized that a defendant’s criminal history “may bear
upon more than one of the section 3553(a) factors.” United States v. Gunter, 620 F.3d 642, 647 (6th
Cir. 2010). Here, the district court acted squarely within its discretion by finding that Wesson’s
criminal history was relevant to multiple § 3553(a) factors, including his history and characteristics,
the need for the sentence imposed to reflect the seriousness of the offense, the need to provide just
punishment for the offense, the need for specific deterrence of future criminal conduct by Wesson,
and the need to protect the public from Wesson’s recidivist tendencies. See id. Therefore, the
district court did not place too much weight on Wesson’s criminal history.
Second, Wesson’s argument that the district court did not meaningfully address the
mitigating factors raised in his motion for a downward departure and/or variance is also baseless.
Wesson cited his youth/immaturity and the support of his family and friends as justifications for a
sentence below the applicable guidelines range. The district court expressly considered these factors,
noting that Wesson was only 22 years old at the time of sentencing, had not finished high school, and
had a criminal record that included four juvenile offenses. The district court also acknowledged that
Wesson grew up in a stable household, is close to his family, and is welcome to live with his family
after being released from prison. Nevertheless, after balancing all of the applicable § 3553(a)
factors, the district court found that a sentence within the guidelines range was appropriate. This was
not an abuse of discretion. See United States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008).
Lastly, Wesson’s argument that the district court “impermissibly considered the allegation
of gang affiliation made in the presentence report” is also unavailing. At the sentencing hearing, the
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United States v. Hersie Wesson
district court simply asked Wesson whether he belonged to a gang, as alleged in the PSR, and
Wesson responded that he did not. The district court’s question was appropriate, especially since
“[n]o limitation shall be placed on the information concerning the background, character, and
conduct of a person convicted of an offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661. There is also no
indication that Wesson’s answer affected his sentence, one way or another. Therefore, Wesson’s
claim that the district court based his sentence on an impermissible factor is unfounded.
For the foregoing reasons, we affirm Wesson’s sentence.
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