NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0191n.06
No. 11-5144
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Feb 16, 2012
)
Plaintiff-Appellee, ) LEONARD GREEN, Clerk
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
BERNARD SHAW, ) THE WESTERN DISTRICT OF
) TENNESSEE
Defendant-Appellant. )
Before: MARTIN and McKEAGUE, Circuit Judges; CALDWELL, District Judge.*
PER CURIAM. Bernard Shaw pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g), to carjacking in violation of 18 U.S.C. § 2119, and to using or
carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c).
Shaw now challenges his sentence as being both procedurally and substantively unreasonable.
The district court adopted the United States Probation Office’s calculations in its amended
presentence report without objections from either party. Shaw’s total offense level under the United
States Sentencing Guidelines for the § 922(g) and § 2119 offenses was twenty-four, with a his
criminal history category of V, yielding an advisory guideline range of ninety-two to 115 months of
imprisonment. The § 924(c) offense carried a mandated consecutive sentence of seven years of
imprisonment. Shaw requested a sentence at the bottom of the guideline range, noting that he had
*
The Honorable Karen K. Caldwell, United States District Judge for the Eastern District
of Kentucky, sitting by designation.
No. 11-5144
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serious substance abuse and mental health problems. He also emphasized that he had a non-violent
criminal history.
The district court, after reviewing the statutory sentencing factors of 18 U.S.C. § 3553(a), the
details of the offenses, Shaw’s background, and his criminal history, imposed a sentence of 105
months of imprisonment for the § 922(g) and § 2119 counts, eighty-four months of imprisonment
for the § 924(c) count, resulting in a total of 189 months of imprisonment. This appeal followed.
We review sentences for procedural and substantive reasonableness. Gall v. United States,
552 U.S. 38, 51 (2007). First, we “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.” Id. If no procedural
error occurred, we “then consider the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.” Id. A sentence may be substantively unreasonable “if the district
court chooses the sentence arbitrarily, grounds the sentence on impermissible factors, or
unreasonably weighs a pertinent factor.” United States v. Brooks, 628 F.3d 791, 796 (6th Cir.), cert.
denied, 131 S. Ct. 3077 (2011). When a sentence falls within the applicable guideline range, we
afford it a rebuttable presumption of substantive reasonableness. Id.
Shaw argues that his sentence is procedurally unreasonable because the district court
erroneously found that his criminal history had “escalated” over time. According to Shaw, his
criminal history had actually de-escalated because, until the carjacking, his most recent offenses were
non-violent crimes such as forgery, identity theft, and shoplifting. Because Shaw did not raise this
issue after having been given the opportunity to do so by the district court, the issue is reviewed for
plain error. See id. at 796-97; United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir. 2004).
Upon review, we find no error, plain or otherwise. The district court accurately summarized
Shaw’s criminal history and recognized that his prior offenses did not involve a level of violence
comparable to the instant carjacking offense. Accordingly, there is no indication that the district
court relied on an erroneous factual finding in selecting its sentence.
No. 11-5144
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Shaw also argues that this error rendered his sentence substantively unreasonable because
the error caused the district court to place too much weight on his criminal history. This argument
is unavailing. As Shaw acknowledges, the district court recognized that he did not have a history
of violent offenses, and that the most likely explanation for the instant offense was his recent
substance abuse. The district court recognized, however, that the offense was extremely serious, and
its sentencing explanation neither failed to take into account any of the § 3553(a) factors, nor placed
too much weight on any particular factor or factors. Under these circumstances, Shaw cannot
overcome the presumption that his sentence is substantively reasonable.
For these reasons, we affirm the district court’s judgment.