NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0725n.06
No. 09-3714
FILED
UNITED STATES COURT OF APPEALS Oct 26, 2011
FOR THE SIXTH CIRCUIT
LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
DAVID F. MAYS, ) OHIO
)
Defendant-Appellant. )
Before: NORRIS, SUTTON, and GRIFFIN, Circuit Judges.
PER CURIAM. David F. Mays appeals the district court’s judgment of conviction and
sentence.
A jury found Mays guilty of RICO conspiracy, in violation of 18 U.S.C. § 1962(d), and
conspiracy to use or carry a firearm during and in relation to a drug trafficking crime or crime of
violence, in violation of 18 U.S.C. § 924(o). The district court sentenced him to respective prison
terms of 121 and 120 months, to be served consecutively. This court affirmed Mays’s convictions,
but remanded for resentencing. United States v. Mays, 285 F. App’x 269 (6th Cir. 2008). On
remand, the district court determined that Mays’s base offense level was 28 and, after adding four
levels because the victim sustained permanent or life-threatening injuries, that his total offense level
was 32. Based on the total offense level of 32 and a criminal history category of II, the district court
calculated Mays’s guidelines range of imprisonment to be 135 to 168 months. The court varied
upward, however, and sentenced Mays to concurrent prison terms of 192 months.
No. 09-3714
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On appeal, Mays argues that his sentence was unreasonable in several ways: (1) the district
court improperly applied the four-level enhancement under USSG § 2A2.1(b)(1)(A) for causing
permanent or life-threatening injuries to the victim; (2) the court failed to adequately explain its
conclusion that Mays’s criminal history category underrepresented his true criminal history; (3) the
court failed to adequately explain its rejection of Mays’s argument that he should be given a lesser
sentence based on time that he spent in state prison on related charges; and (4) the court improperly
varied upward from the guidelines and failed to adequately explain its decision to do so.
We review sentences for both procedural and substantive reasonableness using an abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). To determine whether a sentence
is procedurally reasonable, we must “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 [18 U.S.C.] § 3553(a) factors, selecting
a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.”
Id. “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).” United States v. Vowell, 516 F.3d 503, 512 (6th Cir. 2008) (internal
quotation marks omitted); see, e.g., United States v. Woodard, 638 F.3d 506, 510 (6th Cir. 2011)
(“touchstone” for review of above-guidelines sentence is “whether the length of the sentence is
reasonable in light of the § 3553(a) factors” (citation omitted)). “A sentence may be substantively
unreasonable if the district court selects the sentence arbitrarily, bases the sentence on impermissible
factors, fails to consider pertinent § 3553(a) factors or gives an unreasonable amount of weight to
any pertinent factor.” Vowell, 516 F.3d at 510 (internal quotation marks and alterations omitted).
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The district court did not abuse its discretion in imposing Mays’s sentence. The court
properly applied the four-level enhancement under § 2A2.1(b)(1)(A) in light of the victim’s
testimony “that he suffered four bullet wounds in the left side of his back and two collapsed lungs.”
Mays, 285 F. App’x at 274. The court gave proper consideration to the relevant § 3553(a) factors,
explaining that an upward variance was warranted by “the seriousness of the offense,” the nature of
the criminal behavior in which Mays and “the entire enterprise was engaged,” and the court’s
determination that Mays’s criminal history “underrepresents the threat of recidivism.” Contrary to
Mays’s argument, moreover, the court indicated that it considered his state prison time in fashioning
an appropriate sentence.
Accordingly, we affirm the district court’s judgment.