NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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.

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On Appeal from the United States 

District Court for the Eastern District 

of Tennessee

Before: GUY, COOK, and McKEAGUE, Circuit Judges.

PER CURIAM. Defendant 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 924(c)(1)(A)(iii). Cross admitted in his plea agreement that 

he entered a federally insured bank armed with a .45 caliber semi-automatic pistol; 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 weight 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 the 
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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 39; see also United States v. Haj-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. 2008).

Defendant did not object to the presentence report or the calculation of the advisory 

Guidelines range. After 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 history 

category of I, resulted in a Guidelines range of 51 to 63 months of imprisonment. However, 

because the firearm conviction mandated a consecutive sentence of at least ten years of 

imprisonment, the effective Guidelines range became 171 to 183 months of imprisonment. 

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. 

Cross 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 cognitive abilities. Defense counsel urged a withinGuidelines sentence for several reasons, including that Cross was remorseful, had not intended to 

hurt anyone, and had acted out of desperation and poor judgment given his low intellectual 
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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, including 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 weighing of the relevant factors was unreasonable. The 

district court did not abuse its discretion in 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.