United States v. Nicholas Nunley

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name:

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

┐
UNITED STATES OF AMERICA,
│
Plaintiff-Appellee, │
> No. 21-5471
│
v. │
│
NICHOLAS NUNLEY, │
Defendant-Appellant. │
┘

Appeal from the United States District Court
for the Eastern District of Tennessee at Chattanooga.
No. 1:19-cr-00122-1—Travis Randall McDonough, District Judge.

Decided and Filed:

Before: GILMAN, STRANCH, and NALBANDIAN, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Brandon Douglas Raulston, Chattanooga, Tennessee, for Appellant. Brian
Samuelson, UNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.

_________________

OPINION
_________________

RONALD LEE GILMAN, Circuit Judge. Nicholas Nunley pleaded guilty to one count
of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and was
sentenced to 112 months in prison. He now challenges both the procedural and substantive
reasonableness of his below-Guidelines sentence. For the reasons set forth below, we AFFIRM
the judgment of the district court.
 No. 21-5471 United States v. Nicholas Nunley Page 2

I. BACKGROUND

Nunley’s indictment stems from an incident that occurred in May 2019. His brother
Basil learned that Nunley had taken a firearm from their father’s vehicle, so Basil went to
Nunley’s residence to persuade him to “get rid” of it. According to Basil’s subsequent statement
to law-enforcement officers, Nunley then threatened to shoot Basil, which caused Basil to hit
Nunley with a piece of wood as Basil fled the scene. Nunley used the firearm to fire seven shots
at his brother, but Nunley was fortunately not a good shot. Basil was able to get in his car and
leave unharmed.

McMinn County Sheriff’s officers responded to a call of shots being fired and arrived
soon thereafter. They encountered Nunley in a car along the roadway outside his residence.
Nunley pointed the firearm at one of the officers before driving away, leading the officers on a
high-speed chase. Nunley eventually drove into a field, abandoned his car, and started running
on foot. After a lengthy pursuit, Nunley turned and fired one shot at the officers chasing him.
He then barricaded himself in a building located next to the field. The responding officers
attempted unsuccessfully to convince Nunley to surrender before eventually using an armored
truck to breach the building, at which point the officers were able to take Nunley into custody.
During the entry, the officers heard another gunshot, also believed to have been fired from
Nunley’s firearm.

Nunley was found in possession of a Hi-Point 9 millimeter pistol. He told the officers
that he had taken the gun from his father’s vehicle one week prior to the incident. Three days
after the incident, agents from the Bureau of Alcohol, Tobacco, and Firearms interviewed
Nunley, who admitted to them that he was a convicted felon.

Nunley pleaded guilty to possessing a firearm as a felon, in violation of
18 U.S.C. § 922(g)(1). In its Presentence Report, the Probation Office calculated a base offense
level of 20 and recommended the following two enhancements: (1) a four-level “Additional
Felony” enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for a defendant who “used or possessed
any firearm or ammunition in connection with another felony offense,” and (2) a six-level
 No. 21-5471 United States v. Nicholas Nunley Page 3

“Official Victim” enhancement under U.S.S.G. § 3A1.2(c)(1) for assaulting a law-enforcement
officer “during the course of the offense or immediate flight therefrom.”

Nunley objected at his sentencing hearing to the application of both enhancements on the
ground that they would amount to impermissible double counting because the enhancements
punished the same conduct—i.e., his shooting at the officers. He conceded during the hearing
that the Official Victim enhancement was applicable, but he contended that no other felony
offense was committed apart from his interaction with the officers. For that reason, he argued,
the Additional Felony enhancement should not apply.

As for the earlier shooting at his brother Basil, his brother testified at the sentencing
hearing that the aggressor was in fact Basil himself. Nunley therefore argued that his shooting at
Basil was done in self-defense, which would be a complete defense to the crime and preclude
that act from being a separate “assault” that would otherwise justify the Additional Felony
enhancement under U.S.S.G. § 2K2.1(b)(6)(B). And because the shooting at the officers was the
basis for the Official Victim enhancement under U.S.S.G. § 3A1.2(c)(1), Nunley argued that that
firing could not also form the basis for the Additional Felony enhancement.

The district court overruled Nunley’s objection, explaining that the Additional Felony
enhancement applied because Nunley pointed the gun at the first officer on the scene and
because he had used the gun to commit an aggravated assault against his brother. As to the latter
assault, the court was unconvinced by Basil’s testimony at the sentencing hearing. It concluded
that Nunley had acted as described in the Presentence Report, which was based on the initial
statements by Basil to the officers.

In the alternative, the court held that the application of both enhancements was proper
even if based solely on Nunley’s interactions with the officers. The court relied on United States
v. Barnes, 791 F. App’x 512 (6th Cir. 2019), which held that the “cumulative application of the
Additional Felony and Official Victim enhancements under §§ 2K2.1(b)(6)(B) and 3A1.2(c)(1)
is not impermissible double counting.” Id. at 518.

Application of the two enhancements yielded a total offense level of 30. After three
levels were deducted for the acceptance of responsibility, Nunley’s final offense level was 27.
 No. 21-5471 United States v. Nicholas Nunley Page 4

This was combined with his criminal-history category of V, resulting in a Guidelines range of
120 to 150 months of imprisonment. The Guidelines range, however, was compressed by a 120-
month statutory maximum sentence for the offense to which he pleaded guilty.

Nunley moved for a downward departure or variance, arguing that his extreme substance
addiction to a variety of substances was a primary factor in the commission of his offense. He
also contended that his acceptance of responsibility was not adequately reflected in the
Guidelines because he pleaded guilty even though his Guidelines range was higher than the
statutory maximum sentence.

The district court ultimately sentenced Nunley to 112 months of imprisonment, which
was 8 months below his Guidelines range. In explaining the sentence, the court detailed the
nature and circumstances of the crimes, calling them “very concerning, very serious, but also
accounted for in the guidelines.” The court also noted that Nunley was fortunate that he “didn’t
kill somebody . . . or more [] than one person in this interaction[,]” which he “could easily have
done.” Nunley’s long criminal history suggested to the court that Nunley had a “lack of respect
for the law,” which the court explained “should be a serious consideration in crafting th[e]
sentence,” especially since Nunley’s prior prison terms “ha[d] not gotten [his] attention to the
degree that the community and society demands.” This led the court to conclude that just
punishment required “a significant sentence of incarceration.”

The district court also took into account Nunley’s history and personal characteristics,
noting that Nunley had a “long history of drug abuse” and “mental health issues.” On the other
hand, the court commented on Nunley’s “history of using guns aggressively and dangerously.”

Two factors convinced the district court to impose a below-Guidelines sentence. First,
Nunley accepted responsibility for his actions. The court stated that it had listened to Nunley’s
allocution, in which Nunley detailed his extensive history of substance abuse, and found “parts
of it . . . compelling.” This convinced the court that Nunley understood “what [he’d] done” and
“why [he’d] done it,” even if he was not “strong enough yet to overcome those [] forces.” The
second factor was the relative consequences of Nunley’s crime. As bad as the court said that his
crime was— “and it was really bad”—the court could “imagine other felon-in-possession cases
 No. 21-5471 United States v. Nicholas Nunley Page 5

that could be worse.” The court therefore concluded that, “despite all the things that [it had] said
about consideration of the [18 U.S.C. §] 3553(a) factors,” a below-Guidelines sentence of 112
months was appropriate.

When asked if either party had any objections to the sentence that had not already been
raised, both Nunley and the government said that they did not. This timely appeal followed.

II. ANALYSIS

A. Standard of review

Nunley challenges both the procedural and substantive reasonableness of his sentence. A
sentence is procedurally unreasonable if, among other things, the district court “improperly
calculates the Guidelines range . . . or fails to adequately explain the chosen sentence.” United
States v. Davis, 751 F.3d 769, 773 (6th Cir. 2014) (internal parentheses and alterations omitted)
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). Substantive reasonableness, on the other
hand, concerns “whether the sentencing court gave reasonable weight to each relevant factor”
under 18 U.S.C. § 3553(a). United States v. Boucher, 937 F.3d 702, 707 (6th Cir. 2019)
(emphasis in original). This inquiry, at bottom, addresses “a claim that a sentence is too long.”
United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018).

We generally review both aspects of a district court’s sentencing decision under the
abuse-of-discretion standard. Gall, 552 U.S. at 51. In so doing, the court’s legal conclusions—
including its interpretation of the Guidelines—are reviewed de novo, and its factual findings are
reviewed under the clear-error standard. United States v. Battaglia, 624 F.3d 348, 351 (6th Cir.
2010). But where a defendant fails to appropriately preserve a procedural-reasonableness
argument, we review the argument under the more exacting plain-error standard. United States
v. Herrera-Zuniga, 571 F.3d 568, 579-80 (6th Cir. 2009). Substantive reasonableness
arguments, in contrast, “‘do not need to be raised before the district court to be preserved for
appeal,’ and so we apply abuse of discretion review even where such arguments were not raised
below.” United States v. Sherrill, 972 F.3d 752, 769 (6th Cir. 2020) (quoting United States v.
Lanning, 633 F.3d 469, 473 (6th Cir. 2011)).
 No. 21-5471 United States v. Nicholas Nunley Page 6

B. Procedural reasonableness

Nunley makes two arguments regarding his claim of procedural unreasonableness. He
first argues that the cumulative application of the Additional Felony and Official Victim
enhancements is impermissible double counting. Second, he argues that the district court did not
provide a sufficiently clear explanation for the chosen sentence.

1. The district court properly applied both the Additional Felony and Official
Victim enhancements

Impermissible double counting is a procedural error that “occurs when precisely the same
aspect of the defendant’s conduct factors into his sentence in two separate ways.” Battaglia, 624
F.3d at 351 (citation omitted). “But no double counting occurs if the defendant is punished for
distinct aspects of his conduct.” Id. In other words, district courts “may impose two
enhancements arising from the same conduct, provided the enhancements ‘penalize . . . distinct
harms.’” United States v. Sweet, 776 F.3d 447, 451 (6th Cir. 2015) (quoting United States v.
Smith, 516 F.3d 473, 476 (6th Cir. 2008)). Moreover, this court has “recognize[d] that the
Sentencing Guidelines expressly mandate double counting under some circumstances through
the cumulative application of sentencing adjustments.” United States v. Fleischer, 971 F.3d 559,
570 (6th Cir. 2020) (quoting United States v. Farrow, 198 F.3d 179, 194 (6th Cir. 1999)).

This court has previously held in an unpublished opinion that the application of the
Additional Felony and Official Victim enhancements, under U.S.S.G. §§ 2K2.1(b)(6)(B) and
U.S.S.G. § 3A1.2(c)(1), respectively, did not constitute impermissible double counting. United
States v. Barnes, 791 F. App’x 512, 518 (6th Cir. 2019). We find no reason to depart from that
holding in the present case.

First, as the district court pointed out, Nunley’s shooting at Basil and his pointing the
firearm at the first officer to respond to the scene were each actions that could independently
serve as the basis for the Additional Felony enhancement, apart from Nunley’s later shooting at
the officers who pursued him on foot. See Tenn. Code Ann. § 39-13-101(a)(2) (assault occurs
where a person “[i]ntentionally or knowingly causes another to reasonably fear imminent bodily
injury”); see also Tenn. Code Ann. § 39-13-102(a)(1)(A)(iii) (aggravated assault occurs where a
 No. 21-5471 United States v. Nicholas Nunley Page 7

person “[i]ntentionally or knowingly commits an assault” and the assault “[i]nvolved the use or
display of a deadly weapon”).

Although Basil testified to a different version of events at sentencing, we find no basis to
hold that the district court committed a clear error in relying on Basil’s initial statements to the
officers rather than his subsequent testimony at sentencing. See United States v. Wooten, 689
F.3d 570, 573 n.1 (6th Cir. 2012) (“The ‘clearly erroneous’ standard is deferential, and factual
findings derived from credibility determinations are entitled to particular deference in our court.
Where, as here, there are two permissible views of the evidence, the factfinder’s choice between
them cannot be clearly erroneous.” (internal citation and quotation marks omitted)).

The district court also correctly concluded that there would be no impermissible double
counting even if the two enhancements were both applied solely because of Nunley’s shooting at
the pursuing officers. That is because these enhancements, even when based on the same
conduct, address distinct aspects of that conduct. “[T]he Additional Felony enhancement
addresses [Nunley]’s use of a firearm in connection with a felony, and the Official Victim
enhancement concerns the victim’s status as a police officer.” Barnes, 791 F. App’x at 518; see
also United States v. Hampton, 628 F.3d 654, 664 (4th Cir. 2010) (“The § 2K2.1 enhancement
addresses the connection between a felony and use of a firearm, whereas the § 3A1.2 adjustment
concerns the identity of the victim of [the defendant]’s assaultive conduct.” (quoting United
States v. Hill, 583 F.3d 1075, 1081 (8th Cir. 2009)).

Distinguishing between enhancements based on the characteristics of the defendant or his
actions, versus enhancements based on the characteristics of the defendant’s victim, is often
critical in a double-counting analysis. In United States v. Volkman, 797 F.3d 377 (6th Cir. 2015),
for example, a doctor received both a “special skill” enhancement and a “vulnerable victims”
enhancement when he unlawfully distributed controlled substances to his drug-addicted patients.
Id. at 398-99. This court held that the application of both enhancements did not constitute
impermissible double counting because “[t]he two enhancements at issue focus on different
aspects of the case.” Id. at 399.
 No. 21-5471 United States v. Nicholas Nunley Page 8

The “special skill” enhancement at issue in Volkman is applied when the defendant uses
“a skill not possessed by members of the general public and usually requiring substantial
education, training or licensing” to facilitate a crime. Id. (quoting U.S.S.G. § 3B1.3, cmt. n.4).
“In contrast[,] . . . the vulnerable-victim enhancement focuses on the nature of the victim, as
opposed to the offender[,]” and that enhancement may not be applied solely because a defendant
is a doctor and his victim a patient. Id. (emphasis in original) (noting that the vulnerable-victim
enhancement requires that a person be “unusually vulnerable due to . . . mental condition”)
(quoting U.S.S.G. § 3A1.1(b) cmt. n.2).

So too here. The Official Victim enhancement addresses the nature of the victim and
may be applied regardless of whether the defendant uses a firearm in connection with another
felony offense, as is necessary to apply the Additional Felony enhancement. If a defendant uses
a gun to assault an ordinary citizen, the Additional Felony enhancement would be applied, but
the Official Victim enhancement would not. Alternatively, if a suspect fleeing arrest assaults a
police officer with a knife instead of a firearm, the Official Victim enhancement would apply,
but not the Additional Felony enhancement. But in cases such as the one before us—when a
defendant uses a firearm to assault officers trying to arrest him—both enhancements apply
because distinct harms are present.

The Guidelines themselves evince a clear intent to have both enhancements apply
cumulatively. As the Tenth Circuit has explained,

we find guidance, at least by negative inference, in the commentary to § 3A1.2.
That commentary directs courts not to apply the § 3A1.2 official victim
adjustment “if the offense guideline specifically incorporates this factor.” U.S.
Sentencing Guidelines Manual § 3A1.2 cmt. n. 2 (2002). In other words,
§ 3A1.2(b)(1) may not be applied if the offense conduct outlined in Chapter 2
specifically addresses whether the defendant assaulted a law enforcement officer
and created a substantial risk of serious bodily injury to such officer, knowing (or
with reasonable cause to believe) the victim's official status, in the course of the
offense or immediate flight therefrom. . . . By implication, then, applying
§ 3A1.2 along with Chapter Two enhancements which do not “specifically
incorporate” the victim’s status as an officer is permitted.

United States v. Coldren, 359 F.3d 1253, 1256 (10th Cir. 2004) (emphasis in original) (footnote
omitted). We agree with the Tenth Circuit’s conclusion that “the guidelines demonstrate a clear
 No. 21-5471 United States v. Nicholas Nunley Page 9

intent to punish a convicted felon who uses a gun in connection with another felony to assault a
police officer more severely than a convicted felon who uses a gun in connection with another
felony without assaulting a police officer.” Id. at 1257.

In sum, Nunley’s conduct triggered both the Additional Felony and the Official Victim
enhancements by firing at the officers in his attempt to evade arrest. Because the enhancements
punish different aspects of Nunley’s conduct, the district court did not engage in impermissible
double counting by applying both enhancements.

2. The district court adequately explained the basis for Nunley’s sentence

We now turn to Nunley’s second procedural-reasonableness challenge. Under the rule
that this court adopted in United States v. Bostic, 371 F.3d 865 (6th Cir. 2004), district courts are
required, after announcing the defendant’s sentence, to “ask the parties whether they have any
objections to the sentence . . . that have not previously been raised.” Id. at 872. If the district
court complies with this procedure, then any procedural errors not objected to but subsequently
challenged on appeal are limited to a review under the plain-error standard. United States v.
Herrera-Zuniga, 571 F.3d 568, 578-79 (6th Cir. 2009). This includes challenges to the adequacy
of a district court’s explanation of a sentence. United States v. Penaloza, 648 F. App’x 508, 536
(6th Cir. 2016) (“Although a defendant need not mention issues that were ‘previously raised’ in
response to the Bostic question, an objection must be made to ‘the adequacy of the court’s
explanation for the sentence,’ which ‘becomes apparent as soon as the court finishes announcing
its proposed sentence.’” (internal alterations and citations omitted) (quoting United States v.
Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc))).

Here, the district court complied with Bostic by asking the parties, after it had announced
the sentence, if they had any objections to the sentence that they had not already raised. Neither
Nunley nor the government had any objections. We therefore review Nunley’s challenge to the
adequacy of the explanation given by employing the plain-error standard, which requires Nunley
to show (1) an “error” (2) that “was obvious or clear,” (3) that “affected defendant’s substantial
rights” and (4) that “seriously affected the fairness, integrity, or public reputation of the judicial
proceedings.” United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006) (citation omitted).
 No. 21-5471 United States v. Nicholas Nunley Page 10

Generally, an adequate explanation of a sentence should “set forth enough to satisfy the
appellate court that [the sentencing judge] has considered the parties’ arguments and has a
reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United States,
551 U.S. 338, 356 (2007). The question is whether “the record makes clear that the sentencing
judge listened to each argument, considered the supporting evidence, was fully aware of the
defendant’s circumstances and took them into account in sentencing him.” Vonner, 516 F.3d at
387 (citation and internal quotation marks omitted).

Nunley has failed to identify any error, plain or otherwise, in the district court’s
explanation of his sentence. As explained in more detail above, the district court began by
recalling the details of Nunley’s offense, then described his criminal history and “lack of respect
for the law,” and, finally, discussed the need for “a sentence that protects the public.” The court
also demonstrated that it had considered Nunley’s arguments for leniency by discussing his
acceptance of responsibility and his history of drug abuse and mental-health issues, which were
the focus of Nunley’s allocution.

Ultimately, the district court concluded that, despite the serious nature of the offense, a
below-Guidelines sentence was appropriate because Nunley had accepted responsibility for his
conduct and the court could imagine felon-in-possession cases “that could be worse.” Just
before announcing the sentence, the court also stated that it had “considered the nature and
circumstances of the offense, the history and characteristics of the defendant, and the advisory
guideline range, as well as the other factors listed in Title 18 U.S.C. Section 3553(a).”

The above explanation was more than sufficient to provide a reasoned basis for the
district court’s decision. For example, this court has affirmed a sentencing explanation as
reasonable under “either standard of review” where “[t]he district court specifically noted that
[the defendant]’s continued unlawful conduct showed that he does not take his obligations
seriously when it comes to penalties and sanctions imposed by courts,” and the court “identified
[the defendant’s] action, the seriousness of the offense, [and] the need to promote respect for the
law” as reasons for the sentence. United States v. Washington, 766 F. App’x 313, 322 (6th Cir.
2019) (internal quotation marks omitted). And this court has affirmed far less thorough
explanations under the plain-error standard of review. See Vonner, 516 F.3d at 386-88 (finding
 No. 21-5471 United States v. Nicholas Nunley Page 11

no plain error where the district court’s explanation, which “[n]o one would call . . . ideal,” stated
that it had considered the Guidelines range and the 18 U.S.C. § 3553(a) factors, but “did not
specifically address all of Vonner’s arguments for leniency”).

The district court’s explanation of Nunley’s sentence ensured that Nunley, the public, and
this court understood why the district court picked the sentence that it did. For that reason, the
sentence was procedurally reasonable.

C. Substantive reasonableness

Nunley next attacks the substantive reasonableness of his sentence, arguing that he is
entitled to an even larger downward variance than the one that he received because, in his view,
the district court gave too little weight to his request for leniency, acceptance of responsibility,
and his struggle with alcoholism and drug addiction. A sentence is substantively unreasonable
“if it is selected arbitrarily, if it is based on impermissible factors, if it fails to consider a relevant
sentencing factor, or if it gives an unreasonable amount of weight to any pertinent factor.”
United States v. Massey, 663 F.3d 852, 857 (6th Cir. 2011) (citation omitted). We must also
“consider whether the length of the sentence is sufficient, but not greater than necessary, to
comply with the purposes of sentencing in light of the § 3553(a) factors.” Id. at 860 (citation and
internal quotation marks omitted).

The challenge here is to a sentence already below Nunley’s Guidelines range. Because of
that circumstance, “rather than asking whether considerations based upon § 3553(a) are
sufficiently compelling to justify the sentence, this court must determine whether the
considerations based upon § 3553(a) are so compelling as to necessitate a shorter sentence.”
United States v. Kirchhof, 505 F.3d 409, 414-15 (6th Cir. 2007). “Although it is not impossible
to succeed on a substantive-reasonableness challenge to a below-guidelines sentence, defendants
who seek to do so bear a heavy burden.” United States v. Greco, 734 F.3d 441, 450 (6th Cir.
2013).

Nunley fails to meet that heavy burden. Contrary to Nunley’s assertions, the district
court explicitly considered and accounted for Nunley’s acceptance-of-responsibility and
substance-abuse arguments, but those factors had to be weighed against the serious nature of
 No. 21-5471 United States v. Nicholas Nunley Page 12

Nunley’s crime and his lengthy criminal history. See, e.g., United States v. Jones, 784 F. App’x
358, 365 (6th Cir. 2019) (concluding that the district court properly weighed the defendant’s
mental-health and substance-abuse problems where the court “acknowledged these issues and
discussed them at length, but ultimately determined that the protection of the community and
reflecting the seriousness of the offense outweighs the need for a downward variance” (internal
alteration and quotation marks omitted)). That delicate balance is appropriately left to district
courts so long as the decision is reasonable, which is the case here. See United States v.
Phinazee, 515 F.3d 511, 521 (6th Cir. 2008) (explaining that this court’s role is not to “decide
afresh whether [the defendant]’s circumstances warrant a larger variance or whether the sentence
is reasonable”).

The record before us shows that “the district court listened to [Nunley]’s arguments for a
lower sentence” and “found them convincing[,] but only to a point.” See United States v. Head,
845 F. App’x 421, 427 (6th Cir. 2021) (per curiam) (affirming a below-Guidelines sentence
where “the district court considered and accounted for [the defendant]’s vulnerabilities” (citation
and internal alterations omitted)). Because Nunley has identified no basis “so compelling as to
necessitate a shorter sentence,” see Kirchhof, 505 F.3d at 414-15, his sentence was substantively
reasonable.

III. CONCLUSION

For the reasons set forth above, we AFFIRM the judgment of the district court.