NOT RECOMMENDED FOR PUBLICATION
File Name: 16a0010n.06
No. 14-6334 FILED
Jan 07, 2016
DEBORAH S. HUNT, Clerk
UNITED STATES COURTS OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
MATTHEW HORTON ) DISTRICT OF TENNESSEE
)
Defendant-Appellant. ) OPINION
)
)
BEFORE: BATCHELDER and STRANCH, Circuit Judges; HOOD, District Judge.*
STRANCH, Circuit Judge. Matthew Horton argues that his 50-month sentence for
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), is substantively
unreasonable. The district court imposed an upward variance of 13 months above the applicable
advisory guideline range, citing Horton’s extensive history of similar offenses, including some
committed while a juvenile, as well as the need to deter such conduct in the future. Finding that
the district court did not abuse its discretion, we AFFIRM Horton’s sentence.
I. FACTS
On August 29, 2013, the Memphis Police Department received a complaint that two
individuals were following a man and appeared to intend to hurt him. When officers arrived at
*
The Honorable Denise Page Hood, United States District Judge for the Eastern District
of Michigan, sitting by designation.
No. 14-6334
United States of America v. Matthew Horton
the scene, the complainant identified Horton and a companion as the men who had been trailing
him. When the officers attempted to detain them, Horton fled, but after a short pursuit the
officers were able to detain him. As they arrested him, the officers discovered a loaded Jimenez
Arms, Model JA-9, 9 mm pistol in his waistband. The other individual was released.
Horton was indicted by a federal grand jury and charged with being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g). He eventually pled guilty without a plea
agreement. The Presentence Investigation Report (PSR) prepared for Horton determined that his
Base Offense Level was 20, pursuant to USSG §2K2.1(a)(4)(A), because he had committed the
offense after sustaining a felony conviction for a crime of violence. Horton’s Total Offense
Level then was adjusted downward to 17, as he had accepted responsibility for his actions. The
PSR determined that Horton’s criminal history category was III, and therefore calculated his
advisory guidelines imprisonment range to be 30 to 37 months. The PSR also noted that this
offense was the seventh occasion on which Horton had been in possession of a firearm, citing
three instances of possessing a weapon when he was a juvenile (14,1 15 and 17); one adult
conviction for unlawful possession of a weapon; and three charges for aggravated burglary and
robbery as well as aggravated assault, incidents which also allegedly involved the use of a
handgun but for which Horton had not been prosecuted.
During the sentencing hearing, the court noted Horton’s offense level and criminal
history as well as the advisory guidelines range of 30 to 37 months imprisonment, but put Horton
on notice that it was considering an upward variance. The government submitted the issue of
1
The PSR erroneously characterized Horton as having two juvenile convictions for
possession of a weapon at age 15. In fact, Horton was found with a knife in his pocket when he
was 14, which had not been brandished during a prior argument with a fellow student. When he
was 15, however, Horton was found to be in unlawful possession of a loaded .380 caliber
handgun.
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United States of America v. Matthew Horton
sentencing to the court, while Horton’s counsel argued for a downward variance to time served,
citing Horton’s low criminal history score and a leg injury he had received during the course of
his arrest. Horton also testified, denying any plans to commit a crime but admitting that he ran
from police because he knew that he should not have a weapon.
The court then considered the 18 U.S.C. § 3553(a) factors, including: Horton’s criminal
history dating from a young age, which often involved firearms; his personal history, including
employment and education; the need to promote respect for the law; and the need to deter such
conduct in the future. The court denied Horton’s request for a downward variance and imposed
a 50-month sentence. Horton’s counsel objected to the sentence, arguing that the court’s reliance
on three juvenile convictions to justify the upward variance was unreasonable. Horton timely
appealed the issue to this court.
II. STANDARD OF REVIEW
We review criminal sentences for procedural and substantive reasonableness using a
deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 46, 51 (2007);
United States v. Robinson, 778 F.3d 515, 518 (6th Cir. 2015). A district court should begin
sentencing proceedings with a correct calculation of the applicable Guidelines range, then
consider all of the § 3553(a) factors. Gall, 552 U.S. at 49–50. In doing so, the court “may not
presume that the Guidelines range is reasonable,” but instead must make an “individualized
assessment based on the facts presented.” Id. at 50; Robinson, 778 F.3d at 519. The court
should “impose a sentence sufficient, but not greater than necessary, to comply with” the
purposes of § 3553(a). United States v. Rita, 551 U.S. 338, 348 (2007) (quoting 18 U.S.C.
§ 3553(a)).
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Reviewing for procedural unreasonableness involves determining if a court has “fail[ed]
to calculate (or improperly calculate[ed]) the Guidelines range, treat[ed] the Guidelines as
mandatory, fail[ed] to consider the § 3553(a) factors, select[ed] a sentence based on clearly
erroneous facts, or fail[ed] to adequately explain the chosen sentence—including an explanation
for any deviation from the Guidelines range.” Gall, 552 U.S. at 51. In order for a sentence to be
substantively reasonable, it must be “proportionate to the seriousness of the circumstances of the
offense and offender, and sufficient but not greater than necessary, to comply with the purposes
of § 3553(a).” Robinson, 778 F.3d at 519 (quoting United States v. Vowell, 516 F.3d 503, 512
(6th Cir. 2008)). “A sentence may be considered substantively unreasonable when the district
court selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider
relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.”
United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008).
If the sentence imposed is outside of the Guidelines range, we may not presume it to be
unreasonable; rather, 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.” Gall, 552 U.S. at 51. “‘[E]xtraordinary’ circumstances” are not necessary to justify a
sentence beyond the Guidelines range, nor is proportional review appropriate. Id. at 47. Our
reasonable determination that a different sentence is appropriate is insufficient grounds upon
which to justify reversing the district court. Id. at 51.
III. ANALYSIS
The essence of Horton’s argument is that his sentence is unreasonable because the district
court should not, as a matter of policy, have used his juvenile convictions in order to justify an
upward variance of 13 months. Horton cites no case law to support the claim that the use of
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United States of America v. Matthew Horton
juvenile adjudications is improper in calculating upward variances—rather, he concedes that this
court has found that juvenile adjudications can be used to justify an upward departure pursuant to
USSG §4A1.3 (“Departures Based on Inadequacy of Criminal History Category”). United States
v. Barber, 200 F.3d 908, 912–13 (6th Cir. 2000). Instead, Horton argues that recent Supreme
Court cases such as Roper v. Simmons, 543 U.S. 551 (2005), Graham v. Florida, 560 U.S. 48
(2010), and Miller v. Alabama, 132 S. Ct. 2455 (2012), collectively suggest that juvenile
offenders have distinct characteristics, including immaturity and malleability, that not only
should preclude them from punishment equivalent to that meted out to adults, but also should
undermine assumptions about recidivism based on juvenile offenses.
Although these arguments are certainly compelling, they do not alter the fact that our
precedent permits juvenile offenses to be considered in sentencing, whether in the context of an
upward departure or, analogously, an upward variance. See Barber, 200 F.3d at 912–13. Indeed,
the 50-month sentence here is the same result that would have been reached had the court
determined that Horton was eligible for a criminal history category of V rather than III, pursuant
to USSG §4A1.3—an upward departure like that permitted in Barber. Id.; see United States
Sentencing Commission, Guidelines Manual, Sentencing Table (2013).
Moreover, the district court’s analysis otherwise comports with our standards for
procedural and substantive reasonableness. The court adopted the findings of the PSR,
acknowledged the advisory Guidelines range, and then considered the pertinent § 3553(a)
factors, first hearing argument from both parties and then explaining its reasons for the upward
variance. The court specifically referenced Horton’s juvenile record in combination with his
adult record, noting with concern that Horton “has a criminal history that dates back to just a
very young age, and much of it involves firearms and violence.” (R. 34, Sentencing Tr., Page ID
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United States of America v. Matthew Horton
64.) The court then listed three juvenile and one adult charge that involved a weapon, as well as
two other juvenile charges. The court then described Horton’s other criminal conduct, which
included charges for “assault, theft of property, aggravated burglary, aggravated robbery,
aggravated assault, domestic assault resulting in bodily harm,” as well as the current offense.
(Id. at 65.) During its deliberations, the court emphasized the risk of recidivism and lack of
respect for the law, informing Horton that it appeared “we are not getting your attention. You
haven’t understood that you can’t possess a firearm. It’s just that simple. And you’ve had at
least three or four prior convictions for possession of a firearm.” (Id. at 67.) The court denied
the request for a downward variance and applied an upward variance, citing “the need to promote
respect for the law, Mr. Horton’s history and characteristics and the likelihood that he will re-
offend in the future.” (Id. at 68.) In light of these facts and given the deference we must pay to
the district court’s consideration of the § 3553(a) factors, we cannot find that the court abused its
discretion in imposing an upward variance of 13 months.
IV. CONCLUSION
For the foregoing reasons, Horton’s sentence is AFFIRMED.
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