United States v. Joseph Weir

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0767n.06

No. 13-5643

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Oct 07, 2014
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) On Appeal from the United States
v. ) District Court for the Eastern
) District of Kentucky
JOSEPH A. WEIR, )
)
Defendant-Appellant. )
)
_________________________________/ )

BEFORE: GUY, ROGERS, and DONALD, Circuit Judges.

RALPH B. GUY, JR., Circuit Judge. In December of 2012, a jury convicted

Joseph Weir of kidnapping in violation of 18 U.S.C. § 1201(a) and brandishing a firearm

in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Later

that month, a jury convicted Weir of armed bank robbery under 18 U.S.C. § 2113(a) &

(d) and another count of possessing a firearm in furtherance of a crime of violence under

18 U.S.C. § 924(c)(1)(C)(i). Weir was sentenced to 711 months of imprisonment. In this

direct appeal, Weir claims numerous errors at trial and sentencing. We find no merit to

Weir’s claims and AFFIRM his conviction and sentence.
Case No. 13-5643 2
United States v. Weir

I.

On May 31, 2011, Weir approached Ann Ernst, a 75-year-old woman, while she

was sitting in her car at a mall in Crestview Hills, Kentucky. He ordered her – while

displaying a gun and knife – to move to the passenger seat of the car. He then drove

them in her car into Ohio while demanding that she disclose the PIN to her bank account.

Ernst never disclosed that information. Weir eventually took Ernst to a secluded area

where he gagged and tied her to a tree while he drove away in her car with her purse. He

later abandoned the car after taking a small amount of cash from Ernst’s wallet and some

of her personal belongings. Weir used Ernst’s bankcard to purchase a carton of cigarettes

and some gas.

On December 5, 2011, Weir entered the Huntington National Bank in Covington,

Kentucky where he handed the teller a note that read, “I want your 100s and 50s. I will

shot [sic] you.” The teller complied and Weir made off with $900 in cash. Weir never

displayed a gun during the robbery, but the teller believed Weir was pointing a gun at her

through his jacket pocket. Weir took the money and note before leaving the bank.

On January 31, 2012, Detective Jim West with the Covington police department

received a tip that Weir committed the December 5th bank robbery. Weir was brought in

for questioning on February 5, 2012. After being read his Miranda rights, Weir

confessed to both the bank robbery and the kidnapping. Weir shared extensive and

accurate details about both crimes, while also disclosing that he used a loaded revolver

during the kidnapping and an unloaded black semi-automatic .380 caliber handgun during
Case No. 13-5643 3
United States v. Weir

the bank robbery. The confession was recorded and a redacted portion of it was entered

into evidence at Weir’s later trials. Weir later testified at the kidnapping trial that he had

lied in his confession when he told Detective West that he had a loaded gun during the

kidnapping – Weir claimed that he had actually used a toy pellet gun that he had painted

to look like a “.357.”

Prior to his trials, Weir filed a motion to suppress his February 5th confession.

The court denied his motion.

On December 3, 2012, Weir was tried for kidnapping (Count 1) and brandishing a

firearm in furtherance of a crime of violence (Count 2). A jury convicted him of both

counts. On December 18, 2012, Weir was tried for armed bank robbery (Count 3) and

another count of possessing a firearm in furtherance of a crime of violence (Count 4).

Once again, the jury convicted him of both counts. The same judge that presided over

both trials sentenced Weir to 711 months of imprisonment. Weir filed this timely appeal

where he alleges several claims of error. We address each in turn.

II.

A. Miranda Waiver

Weir argues that the district court erred in denying his motion to suppress his

February 5, 2012 confession because he never affirmatively waived his Miranda rights

and instead made an ambiguous request for an attorney. He also argues that he was under

the influence of drugs and alcohol at the time of his confession, making any waiver

invalid. Finally, Weir makes a general argument that his confession was not voluntary.
Case No. 13-5643 4
United States v. Weir

“[A] suspect may waive his Miranda rights ‘provided the waiver is made

voluntarily, knowingly, and intelligently.’” Daoud v. Davis, 618 F.3d 525, 529 (6th Cir.

2010) (citing Miranda v. Arizona, 384 U.S. 436, 444 (1966)). “When reviewing the

denial of a motion to suppress a statement allegedly taken in violation of a defendant's

Miranda rights, we review the district court’s factual findings for clear error and its legal

conclusions de novo.” United States v. Lawrence, 735 F.3d 385, 436 (6th Cir. 2013),

petition for cert. filed, (U.S. July 1, 2014) (No. 14-5064).

i. Waiver

Weir first claims that although he expressed that he understood his Miranda rights,

he never affirmatively waived such rights.1 The district court correctly rejected this

argument.

[Miranda v. Arizona] does not impose a formalistic waiver procedure that a
suspect must follow to relinquish [his] rights. As a general proposition, the
law can presume that an individual who, with a full understanding of his or
her rights, acts in a manner inconsistent with their exercise has made a
deliberate choice to relinquish the protection those rights afford.

Berghuis v. Thompkins, 560 U.S. 370, 385 (2010); see also United States v. Adams, 583

F.3d 457, 467 (6th Cir. 2009) (internal quotation marks omitted) (“[W]aiver may be

clearly inferred . . . when a defendant, after being properly informed of his rights and

indicating that he understands them, nevertheless does nothing to invoke those rights and

speaks.”).

1
The government does not contest Weir’s claim that he was in police custody and entitled to a Miranda
warning.
Case No. 13-5643 5
United States v. Weir

Weir implicitly waived his rights. He was read a Miranda warning and he

acknowledged that he understood it.2 Weir then proceeded to answer Detective West’s

questions about his living situation, livelihood, arrest history, and prior drug use – all

without an attorney present. Assuming Weir’s statements were not coerced (a question

we resolve below), they establish an implied waiver of his Miranda rights. See Berghuis,

560 U.S. at 384 (“Where the prosecution shows that a Miranda warning was given and

that it was understood by the accused, an accused's uncoerced statement establishes an

implied waiver of the right to remain silent.”).

It was only after answering West’s questions for about ten minutes that Weir

stated, “I’m honestly undecisive, you know, I’m undecided . . . of making a statement,

without [a lawyer] . . . I’m not saying, you know, hey I want an attorney, I’m not saying

the word.” Weir argues that West was required to stop questioning at this point to

resolve whether Weir did in fact want an attorney.

As the district court correctly held, Weir’s statement was not ambiguous; Weir

made clear that he was not requesting an attorney. What is more, his statement that, “I

am honestly . . . undecided . . . of making a statement without [a lawyer],” establishes that

he knew he had the right to request an attorney and he was not yet prepared to make that

request.

2
When Detective West asked Weir, “do you understand each of these rights that I’ve explained to you?”
Weir nods and says “Uh-huh, yes.” West then reminds Weir that he can “stop questioning at any time.”
Weir states, “Okay, I understand, I can invoke my rights.” West asks, “What’s that?” and Weir repeats, “I
said, I understand, I can invoke my rights. And plead the fifth or whatever. I know.”
Case No. 13-5643 6
United States v. Weir

ii. Weir’s Sobriety and the Voluntariness of His Confession

Weir contends that his sobriety at the time of his February 5, 2012 confession was

“severely compromised,” making his waiver invalid. In support of his argument, Weir

notes that he vomited three times during the interrogation, was sweating “profusely,” and

argues that he had been using heroin, marijuana, and percocets in the days preceding the

interrogation. The district court rejected these arguments, as do we.

The district court found that Weir was alert, cooperative, able to form questions

while in police custody, did not slur his speech, showed no signs of intoxication, was able

to recall personal information, and relayed specific details of the crimes he committed.

After reviewing Weir’s video-recorded confession, we cannot say that such findings were

clearly erroneous. Based on these findings, we agree with the district court’s conclusion

that Weir was sufficiently sober to knowingly and intelligently waive his Miranda rights.

Weir argues that because he had previously ingested heroin, his confession was

not voluntary. We disagree. First, police coercion is a necessary predicate to a finding

that Weir’s confession was not voluntary. See Colorado v. Connelly, 479 U.S. 157, 167

(1986). We have outlined three requirements to find “that a confession was involuntary

due to police coercion: (i) the police activity was objectively coercive; (ii) the coercion in

question was sufficient to overbear the defendant's will; and (iii) the alleged police

misconduct was the crucial motivating factor in the defendant's decision to offer the

statement.” United States v. Mahan, 190 F.3d 416, 422 (6th Cir. 1999).
Case No. 13-5643 7
United States v. Weir

The only police coercion Weir can point to is the following statement by Detective

West:

. . . you have this, I, what I’m going to say is this opportunity won’t come
back at you because you know you’re going to be arrested today and then
you already know what an attorney is going to tell you, don’t say
anything… That’s just what they say. No matter who you are, what the
crime is, what has ever occurred, that’s just what they tell you, because they
want to deal with me rather than you. So, the chance isn’t going to come
back at you is what I’m saying.

Far from being “objectively coercive,” such assessment seems reasonable given the

circumstances.

Second, the district court found that there was nothing to alert Detective West to

the fact that Weir could be under the influence of drugs or alcohol. Weir told Detective

West that his vomiting was due to a “bug” and the stress of the situation. That finding, in

addition to the district court’s finding that Weir did not exhibit signs of intoxication, is

not clearly erroneous. Given that West did not know of Weir’s alleged intoxication, we

cannot say that his confession was coerced. See Hill v. Anderson, 300 F.3d 679, 682 (6th

Cir. 2002) (noting that a lesser quantum of coercion is necessary to find a confession

involuntary where the interrogating officer knows the defendant is intoxicated).

B. Juror #340

Weir next argues that the district court erred when it did not disqualify Juror #340

from the kidnapping trial because of her relationship with the victim, Ann Ernst.

Specifically, Juror #340’s sister’s husband’s brother had been married to Ernst’s

daughter. Ernst’s daughter was also a godparent to one of Juror #340’s nephews. Juror
Case No. 13-5643 8
United States v. Weir

#340 realized and disclosed this fact to the court after Ernst testified; she told the court

that the relationship would not impact her ability to be objective. The court accepted the

juror’s statement and allowed her to remain on the jury. Weir then moved for a mistrial,

which the court denied.

We review the court’s denial of Weir’s motion for a mistrial for an abuse of

discretion. See United States v. Moore, 917 F.2d 215, 220 (6th Cir. 1990). We presume

that the court’s finding that Juror #340 could remain impartial was correct, “rebuttable

only upon a showing of clear and convincing evidence.” Dennis v. Mitchell, 354 F.3d

511, 520 (6th Cir. 2003).

Weir fails to point to any clear and convincing evidence of Juror #340’s bias.

Instead, he argues that Juror #340’s relationship with Ernst resulted in an “implied bias,”

which deprived him of his right to a jury trial by a panel of impartial jurors. Weir cites

Justice O’Connor’s concurring opinion in Smith v. Phillips for the proposition that

implied bias remains a viable ground for juror disqualification, including the situation

where the juror is a “close relative of one of the participants in the trial or the criminal

transaction.” 455 U.S. 209, 222 (1982). We have questioned the continued viability of

the “implied bias” doctrine since Smith v. Phillips. See Johnson v. Luoma, 425 F.3d 318,

326 (6th Cir. 2005). Even assuming implied bias is still a basis for juror disqualification

(a question we do not answer), the relationship at issue in this case (where the juror’s

sister’s husband’s brother had been married to the victim’s daughter) is not sufficiently
Case No. 13-5643 9
United States v. Weir

close to warrant the doctrine’s application. Accordingly, there was no abuse of discretion

in the trial court’s denial of Weir’s motion for a mistrial.

C. Application of Alleyne v. United States

At his kidnapping trial, Weir was convicted under 18 U.S.C. § 924(c)(1)(A)(ii) for

brandishing a firearm in furtherance of a crime of violence. At his bank robbery trial,

Weir was once again convicted under 18 U.S.C. § 924(c). Although the jury did not find

beyond a reasonable doubt that this was Weir’s second conviction under § 924(c), that

fact led the court to impose a mandatory minimum term of imprisonment of 25 years on

Weir’s sentence. 18 U.S.C. § 924(c)(1)(C)(i). Weir argues that under the Supreme

Court’s recent holding in Alleyne v. United States, 133 S. Ct. 2151 (2013), the

government was required to prove beyond a reasonable doubt that this was Weir’s second

conviction under § 924(c). We do not agree.

In Alleyne, the Supreme Court held that any fact that increases the defendant’s

mandatory minimum sentence “is an ‘element’ that must be submitted to the jury.”

Alleyne v. United States, 133 S. Ct. at 2155. The Court made clear that its holding in

Alleyne did not apply to prior convictions. Id. at 2160, n.1 (“In Almendarez-Torres v.

United States, 523 U.S. 224 (1998), we recognized a narrow exception to this general rule

for the fact of a prior conviction. Because the parties do not contest that decision's

vitality, we do not revisit it for purposes of our decision today.”).

Weir argues that Almendarez-Torres is no longer binding on our Court in light of

Alleyne. We have already considered this argument and rejected it. See United States v.
Case No. 13-5643 10
United States v. Weir

Nagy, 13-4151, 2014 WL 3632362, at *3 (6th Cir. July 24, 2014) (“Nagy frames ‘the

seminal question’ in his case as, ‘is Almendarez-Torres still good law based on the

Supreme Court cases over the last fifteen years [?]’ The most recent of those precedents,

Alleyne, leaves no doubt that it is.”). There is no error on this point.

D. Sufficiency of the Evidence

Weir challenges the sufficiency of the evidence for both his kidnapping and two

firearm convictions. When we review such challenges, “the relevant question is whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). Weir preserved

this issue for appeal when he moved for judgment of acquittal in both trials at the close of

the government’s case and his case. The district court denied those motions. We review

that decision de novo. United States v. Algee, 599 F.3d 506, 512 (6th Cir. 2010).

i. Sufficiency of the Evidence – Kidnapping

For the kidnapping charge, Weir claims that the government failed to prove that he

had the specific intent to commit the kidnapping because he was intoxicated and,

additionally, because he took Ernst to get her money from the ATM, which was

“collateral to a theft and not a kidnapping.” We find no merit to either argument.

Viewing the evidence in the light most favorable to the prosecution, a rational trier

of fact could have determined that Weir was not sufficiently intoxicated to lack the

requisite intent to commit the kidnapping. The jury heard evidence that Weir drove Ernst
Case No. 13-5643 11
United States v. Weir

from Kentucky to Ohio, repeatedly demanding her PIN so he could access the funds in

her bank account, and eventually locating a secluded location to tie her up to ensure he

could avoid capture. All of these actions support the jury’s finding that Weir had the

specific intent to kidnap Ernst and willfully transport her across state lines. See 18

U.S.C. § 1201(a)(1). And Weir’s taking of Ernst in an effort to coerce her into giving

him her PIN satisfies 18 U.S.C. § 1201’s requirement that he held Ernst “for ransom or

reward or otherwise.” See Gooch v. United States, 297 U.S. 124, 128 (1936) (noting that

kidnapping an individual with the purpose of securing money satisfies this requirement).

Weir next challenges the sufficiency of the evidence to support his § 924(c)

conviction. That conviction is supported by the record. Ernst testified that Weir used a

real gun during the kidnapping. She based this assessment on her past experience with

and exposure to firearms. Ernst’s description of Weir’s gun matched the description that

Weir gave during his February 5th confession. Viewing this evidence in the light most

favorable to the prosecution, a rational trier of fact could have found that Weir used a

firearm in the course of the kidnapping and that such firearm was designed to discharge

ammunition by way of explosion. See 18 U.S.C. § 921(a)(3).

ii. Sufficiency of the Evidence – Bank Robbery

Weir also challenges the sufficiency of the evidence to support his § 924(c)

conviction in connection with the bank robbery. It is undisputed that during the course of

the robbery, Weir never brandished a gun. But during his confession, Weir admitted that

he carried a semi-automatic handgun in his jacket during the robbery. The government
Case No. 13-5643 12
United States v. Weir

also called witnesses who testified that Weir had access to such a handgun prior to the

bank robbery. Viewing the evidence in the light most favorable to the prosecution, a

rational trier of fact could have found that Weir possessed the handgun during the bank

robbery.

Weir argues that his motion for judgment of acquittal should have been granted

because his § 924(c) conviction is based solely on his uncorroborated admission that he

used a handgun during the bank robbery. Weir’s argument fails because there was

independent evidence that bolstered Weir’s confession “and thereby prove[d] the offense

‘through’ the statements of the accused.” United States v. Brown, 617 F.3d 857, 863 (6th

Cir. 2010) (citing Smith v. United States, 348 U.S. 147, 156 (1954)). Specifically,

Samuel Carr, Weir’s roommate prior to the robbery, testified that Weir had access to

Carr’s black .380 handgun prior to the offense. Another witness, Adeniyi Giwa, testified

that he saw Weir in possession of a black .380 handgun in June of 2011. Such testimony

bolstered Weir’s confession to provide sufficient corroboration for purposes of the

corroboration rule. See United States v. Davis, 459 F.2d 167, 171 (6th Cir. 1972)

(internal quotation marks omitted) (“[C]orroborative evidence does not have to prove the

offense beyond a reasonable doubt, or even by a preponderance, as long as there is

substantial independent evidence that the offense has been committed, and the evidence

as a whole proves beyond a reasonable doubt that defendant is guilty.”) There was also

independent corroborating evidence that Weir robbed the bank, which provides sufficient

evidence to corroborate his confession. See Brown, 617 F.3d at 863 (“If, for example, a
Case No. 13-5643 13
United States v. Weir

defendant admits that he drove a car that had an illegal sawed-off shotgun in its trunk, it

is sufficient for the independent corroborating evidence to show that he drove that

particular car.”).

E. Jury Instruction

Weir requested that the following jury instruction be given during his bank

robbery trial: “You may not convict the Defendant based solely upon his uncorroborated

statement or admission.” The court gave that instruction, but added the following

language to it:

However, one available mode of corroboration is for the independent
evidence to bolster the confession itself, and thereby prove the offense
through the statements of the Defendant. So long as portions of the
Defendant’s statement are corroborated by substantial, independent
evidence that tends to establish the trustworthiness of the statement, then
the elements of the crimes may be established by the Defendant’s statement.

(Emphasis added).

We review a district court’s decision to deny a jury instruction for an abuse of

discretion. See U.S. v. Adams, 583 F.3d at 468-69. We “will reverse a jury verdict on

account of an instructional error only in situations where the instruction, viewed as a

whole, is confusing, misleading, and prejudicial.” Id. at 469 (internal quotation marks

and brackets omitted). Although Weir claims that the emphasized portion of this

instruction was incorrect, it restates the rule noted in United States v. Ramirez, 635 F.3d

249, 257 (6th Cir. 2011). Given that the jury instruction correctly stated the law, there is

no basis to say that the judge abused his discretion in denying Weir’s jury instruction

request.
Case No. 13-5643 14
United States v. Weir

F. Sentence

The court imposed a within-Guidelines sentence of 711 months of imprisonment.

In arriving at this sentence, Counts 2 and 4 for possessing a firearm in furtherance of a

crime of violence carried mandatory minimum sentences of 84 months and 300 months,

respectively. 18 U.S.C. § 924(c)(1). Pursuant to 18 U.S.C. § 924(c)(1)(D)(ii), those

sentences had to run consecutively. For Count 1 (kidnapping) and Count 3 (bank

robbery), the court imposed a sentence of 327 months, which was at the high-end of the

Guidelines range. In arriving at the 327-month sentence, the court applied a two-point

enhancement under U.S.S.G. § 3C1.1 (discussed below).

i. Two-Point Enhancement under § 3C1.1

Weir claims that the sentencing court committed a procedural error in applying a

two-point enhancement to his base offense level pursuant to U.S.S.G. § 3C1.1 for

obstruction. The district court applied this enhancement because it determined that Weir

perjured himself at the kidnapping trial when he claimed that he did not use an actual

handgun when he kidnapped Ernst. Section 3C1.1 mandates a two-level increase to the

defendant’s offense level if “the defendant willfully obstructed or impeded, or attempted

to obstruct or impede, the administration of justice,” and such conduct related to the

defendant’s offense. Perjury can form the basis for this section’s application. See U.S.

SENTENCING GUIDELINES MANUAL § 3C1.1 cmt. n.4(B) (2013).

When reviewing a sentencing court’s application of an enhancement under

§ 3C1.1, “[w]e review the district court's factual findings for clear error and its
Case No. 13-5643 15
United States v. Weir

determination that [the defendant’s] conduct constituted obstruction of justice—as well

[as] its application of the two-level enhancement—de novo.” United States v. Watkins,

691 F.3d 841, 851 (6th Cir. 2012) (citing United States v. Camejo, 333 F.3d 669, 674-75

(6th Cir. 2003)).

Weir challenges the district court’s factual determination that he made a false

statement at the kidnapping trial when he testified that the gun he used during the

kidnapping “was, in fact, a pellet gun that looked like a .357,” which he had painted to

look like a real gun. The court credited Ernst’s testimony that Weir used an actual

handgun in the course of the kidnapping, noting that Ernst observed the firearm and had

knowledge of weapons based on past experiences. The court did not find Weir’s

testimony that the weapon was actually a pellet gun that he had painted credible, and

found that his testimony met the other elements of perjury. 3 This factual finding was not

clearly erroneous and the obstruction enhancement was not in error.

ii. Procedural Reasonableness

Weir also claims that the court’s sentence was not procedurally reasonable

because it failed to grant him a downward departure pursuant to: (1) U.S.S.G. § 5H1.3

based on his attention deficit disorder, bipolar disorder, and manic depression; and

(2) U.S.S.G. § 5H1.4 based on his drug abuse. At sentencing, Weir asked the court to

consider his mental health and substance abuse issues as variances and not as departures.

The court complied with Weir’s request and therefore there was no error on this point.

3
A defendant commits the offense of perjury when he: “(1) [makes] a false statement under oath
(2) concerning a material matter (3) with the willful intent to provide false testimony.” U.S. v. Watkins,
691 F.3d at 851 (citing United States v. Dunnigan, 507 U.S. 87, 94 (1993)).
Case No. 13-5643 16
United States v. Weir

Weir next argues that the court committed procedural error in failing to grant a

variance based on his mental health and substance abuse issues. We review a sentence

for procedural reasonableness to:

ensure that the district court committed no significant procedural error,
such as failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence-including an explanation for any
deviation from the Guidelines range.

United States v. Vowell, 516 F.3d 503, 509-10 (6th Cir. 2008) (citing Gall v. United

States, 552 U.S. 38, 51 (2007)). Here there was no procedural error. Weir does not

allege that the court erred in its calculation of the Guidelines range, that the court treated

the Guidelines as mandatory, based its sentence on clearly erroneous facts, or failed to

adequately explain its sentence. A review of the record reveals that the court considered

all of the pertinent § 3553(a) factors, taking into account Weir’s mental health and

substance abuse issues, but determined that if the court were to grant a variance, the facts

supported an upward rather than a downward variance. There was no error on this point

and the court adequately explained the reasons behind its chosen sentence.

iii. Substantive Reasonableness

Weir’s final argument is that his sentence is not substantively reasonable. Because

Weir’s sentence was a within-Guidelines sentence, we presume it is substantively

reasonable. United States v. Garcia, 758 F.3d 714, 724 (6th Cir. 2014). In assessing the

substantive reasonableness of his sentence, “we look to whether the district court chose

the sentence arbitrarily, based its sentence on impermissible factors, or gave unreasonable
Case No. 13-5643 17
United States v. Weir

weight to one of the § 3553(a) factors.” Id. We review the sentence for an abuse of

discretion. Id.

Weir makes a general argument that the sentence was greater than necessary to

accomplish the goals of Congress and the Sentencing Commission. The court explicitly

considered this question and decided that a sentence at the top of the Guidelines range

was necessary to accomplish Congressional goals. The court noted, “Congress has seen

fit to increase punishment for individuals who are convicted of offenses involving

guns . . . I believe this case demonstrates that we have adequate gun laws on the books if

we’re willing to enforce those laws. And this Court is willing to do that.”

The court went on to consider all of the various § 3553(a) factors in determining

that a sentence at the top of the Guidelines range was appropriate. The court considered

Weir’s extensive criminal history, noting numerous thefts, assaults, and drug crimes.

Although Weir argues that the court gave too much weight to his criminal history because

the majority of his crimes were non-violent thefts and drug offenses, the court was

concerned with Weir’s violent crimes towards women, the number of crimes Weir

committed, and Weir’s tendency to become confrontational with authority. The court

was also concerned that Weir’s mental health issues and problems with drug abuse made

him more likely to reoffend.4 We find no abuse of discretion in the court’s consideration

of the § 3553(a) factors.

4
Weir also cites the case of United States v. DeMonte for the proposition that because the DeMonte
sentencing judge granted the defendant a downward departure for cooperating with the government, the
court was compelled to grant Weir a downward variance because he disclosed to authorities that he was
Case No. 13-5643 18
United States v. Weir

Finally, Weir argues that the court should have considered the disparity between

the time he will serve in federal prison and the time he may have served if he had been

sentenced in state court and then granted parole. We have previously held that “it is

impermissible for a district court to consider the defendant's likely state court sentence as

a factor in determining his federal sentence.” United States v. Malone, 503 F.3d 481, 486

(6th Cir. 2007). There is no error on this point.

AFFIRMED.

carrying a gun during the bank robbery. 25 F.3d 343 (6th Cir. 1994). The case is inapposite and the
sentencing court did not abuse its discretion in its decision not to vary downward.