NOT RECOMMENDED FOR FULL

- TEXT PUBLICATION File Name: 15a0209n.06
No. 14

- 5700
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v.
DAVID D. CROSS , Defendant

- Appellant

. _________________________________/ ) ) ) ) ) ) ) ) ) ) On Appeal from the United States District Court for the Eastern District of Tennessee

B efore : GUY, COOK, and M c KEAGUE, Circuit Judges.
PER CURIAM. D efendant David Cross pleaded guilty to one count each of aiding and abetting aggravated bank robbery and discharging a firearm during that robbery. See 18 U.S.C. § § 2113(a) and (d), 2, and 9 24(c)(1)(A)(iii). Cross admitted in his plea agreement that he entered a federally insured bank armed with a .45 caliber semi

- automatic pisto l; fired several shots, two of which struck the bank manager; and took $20,775.00 in cash before fleeing in a waiting car occupied by his two codefendants. Defendant’s appeal challenges only the
substantive reasonableness of his within

- Guidelines sentence , arguing that the district court failed to give proper weigh t to his personal characteristics

. We affirm. We review the substantive reasonableness of a sentence for abuse of discretion. Gall v. United States , 552 U.S. 38, 51 (2007). A sentence may be substantively unreasonable “when theCase No. 14

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United States of America v. David Cross 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). The properly calculated advisory Guidelines range provides the “starting point and initial benchmark” for a substantively
reasonable sentence. Gall , 552 U.S. at 3 9; see also United States v. H aj

- Hamed , 549 F.3d 1020, 1025 (6th Cir. 2008). On appeal, this court applies a rebuttable presumption of substantive reasonableness to a within

- Guidelines sentence. United States v. Vonner , 516 F.3d 382, 389 (6th Cir. 20 08 ). Defendant did not object to the presentence report or the calculation of the advisory Guidelines range. A fter a three

- level reduction for acceptance of responsibility, the total offense level for the bank robbery conviction was 24. That offense level, coupled with a criminal histor y category of I, resulted in a Guidelines range of 51 to 63 months of imprisonment. However, b ecause the firearm conviction mandated a consecutive sentence of at least ten years of imprisonment, the effective Guidelines range became 171 to 183 months of i mprisonment. Imposing sentence at the top of that range, the district court sentenced Cross to a 63

- month term of imprisonment for the bank robbery conviction, to be followed by a consecutive 120

- month term of imprisonment for the firearm conviction.
C ross has failed to rebut the presumption that his within

- Guidelines sentence is substantively reasonable. The district court had before it the arguments made for mitigation based on Cross’s borderline to low

- average intelligence and uncontrolled diabetes that resulted in renal failure and possibly impacted his cognit ive abilities. Defense counsel urged a within

Guidelines sentence for several reasons, including that Cross was remorseful, had not intended to hurt anyone, and had acted out of desperation an d poor judgment given his low intellectualCase No. 14

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United States of America v. David Cross functioning. The record reflects that the district court considered but was not persuaded that a lower sentence was warranted based on defendant’s claims that he did not intend for anyone to get hurt and did not understand that he could have robbed the bank without a firearm . The district court considered and weighed the relevant sentencing factors , i ncluding the seriousness of the offense, the defendant’s characteristics, and the need to impose a sentence that would provide just punishment, afford adequate deterrence, and protect the public. Nothing in the record suggests that the district court’s w eighing of th e relevant factors was unreasonable . The district court did not abuse its discretion i n determining that the 18 U.S.C. § 3553(a) factors, as a whole, justified the sentence imposed. Gall , 552 U.S. at 59

- 60. AFFIRMED

.