NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0487n.06 No. 11-5628 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. CL EO DAL E, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF TEN

NESSEE

BEF ORE: BOG GS and GRI FF I N, Circuit J udg es; BA RZIL AY, Judge. *

PER CURI AM. De fe n d an t Cleo Dale appea ls his sentenc e imposed by the district court following his g uilty plea to char g es of being a felon in possession of a firea rm and possession with intent to dist ribute marijuana

. A p resentence repor

t was prepa

red, which showed that Dale, a man in his fifties, h ad committed sever al serious crimes while appar ently dealing with a coca ine addiction. Howeve r, for

more than ten y ear s since his last imprisonment, Dale had no further arr ests or convictions and had been working at more than one job. Neve rtheless, a sear ch of his apar tment reve aled that Dale was in poss es s i o n of a loaded pistol, which he stated that he found, as well as a larg e quantity of marijuana , packa g ed in individual bag g ies. The sentenc ing g uidelines rang e was calc ulated at 110

The Honora

ble J udith M. Ba

rzilay , Senior J udg e for the United States Court of International * Trade , sitti ng by

desig nation.No. 11-5628

United States v. Dale to 137 months, with 120 months being the statutory maxi mum on the ch ar ge of being a felon in possession of a fir ear

m. At the sentenc ing he aring , counsel for Dale a rgued that a se ntence in the rang e of 41 to 51 months of imprisonment would be rea sonab l e. C o u nsel argued that Dale’ s criminal history was

overr epre sented because all of hi s previous convictio n s we re due to a cocaine addiction that Dale had overc ome. The district co u rt acknow ledg ed Dale’ s rec ent law-a biding lifestyle prior to this

arr est, b u t n evertheless not ed that the crimes wer e serious ones and that it was bound to impose a sentenc e that would deter simil ar crimes. The court sentenc ed Dale to 68 months of imprisonment. Dale a rgues on appe al that his sentence is unreasona ble beca use the district c ourt overe mphasized some sentenc ing f

actor s and g ave too little weight to other fac tors. W e re view a sentenc e for proce dural and substantive rea sonablene ss under an abuse- o fdiscretion standard. Gall v. United States , 552 U.S. 38, 51 (2007). Dale arg ues that the district court abused its discretion by g iving too littl e weig ht to his ag e, citing United States v. Holt , 486 F.3d 997, 1004 (7th Cir. 2007), wher e a below-g uidelines sentenc e based on the defe ndant’s ag e was upheld. Howeve r, this argument is una vailing here beca

use the district court g ave Dale a below-g uidelines sentenc e and specific ally stated t hat t he result would have been differe nt h ad Dale been y oung er. Dale has also cited United States v. Robertson , 662 F.3d 871, 878 (7th Cir. 2011), for the proposition t h at the district court here g ave too littl e weig ht to Dale’ s reha bilitative eff

orts. Robertson is distinguishable, howeve r, beca use that case involved a defe ndant whom the g overnme nt had delayed in char g ing and who re h abilitated himself afte r committing the crime for which he was being sentenc ed. The Seventh Circuit upheld the judgme nt of the district court in the fac e of a challeng e -2-No. 11-5628

United States v. Dale by the g overnme nt. That case is no authority for overturning a district court’s judgme nt that simply chose not to vary below the g uideline rang e by as much as the defe ndant desired. In addition, Dale’ s counsel point s t o Da l e’s reha bilitation following his ear lier convictions, but that argument is underc ut by

Dale’ s commission of the instant offenses. We g ive defe renc e to sentenc ing decisions due to trial judge s’ experience in sentencing. United States v. Poynter , 495 F.3d 349, 351-52 (6th Cir. 2007)

. The fac t that the court could have imposed a shorter sentenc e does not demonstrate unrea sonablene ss. United States v. Smith , 516 F.3d 473, 478 (6th Cir. 2008). Her e, no abuse of discretion in the consideration of the sentenc ing fac tors has been demonstrated. Def endant would have pref

err ed a sentenc e in the rang e of 41 to 51 months, but the district court’s substantia l ly below-guidelines sentenc e of 68 months is rea sonable. Acc ording ly , we a ffirm the district c ourt’s judg ment.

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