NOT RECOMMENDED FOR FULL

- TEXT PUBLICATION File Name: 16a0605n.06
No. 15

- 2391

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff

- Appellee ,

v. FRED DENNIS HALL, Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

BEFORE: DAUGHTREY, ROGERS, COOK, Circuit Judges. MARTHA CRAIG DAUGHTREY, Circuit Judge. Following defendant Fred Hall’s guilty plea to a charge of being a felon in possession of a firearm, the district court sentenced Hall to 96 months in prison, a sentence that represented an upward departure from the advisory Guidelines range of 51 to 63 mo nths. Hall now challenges both the procedural and substantive reasonableness of that sentence, contending that the district court erred in concluding that the defendant had stolen the firearm later found in his possession, erred in denying Hall a reductio n in his sentence for his acceptance of criminal responsibility, and erred in departing upward from the applicable Guidelines range. We find no merit to any of Hall’s allegations of error and affirm. FACTUAL AND PROCEDURAL BACKGROUND In early August 2014 , Brad Bench reported to law enforcement authorities that someone had broken into his barn and had stolen some of his hunting equipment. Among the missingNo. 15

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items were a Charles Daly pump

- action shotgun, the case and shells for that firearm, a pair of Barsk a binoculars, and three trail cameras. Approximately three months later, the authorities learned that defendant Hall had approached Joshua Helenhouse and tried to sell him a shotgun and three trail cameras. Although Helenhouse declined the offers, H all l oaned the gun to Helenhouse so that Helenhouse’s son could use the weapon during deer

- hunting season.
E xamination of the shotgun revealed that it s make, model, and serial number matched those of the shotgun stolen from Brad Bench. Moreover, the gun case in which Hall transported the shotgun to Helenhouse contained 18 yellow shotgun shells, the same type of shells Bench claimed he had stored in the pocket of the case before the gun was taken from his barn

. As part of the investigation into Hall’s connecti on with the theft of Bench’s hunting equipment, authorities received consent from Beverly Evans, Hall’s girlfriend , to search her residence , where Hall stored some of his belongings. During the search of the premises , authorities found personal papers of Hall’s , cell ular phones, three trail cameras, two pairs of binoculars, and a tree stand. One of th e recovered binoculars was manufactured by Barska and matched the model and size of the binoculars that Bench had reported stolen. In fact, when Bench was s hown a photograph of the binoculars , he stated, “[T]hey look like mine.” However, the other items found during the search , including the three trail cameras, were not Bench’s , but later were identified as items stolen from other individuals who lived near Hall or near women with whom Hall was romantically involved. In light of the uncontroverted evidence that Hall was seen in possession of the stolen shotgun and previously had been convicted of numerous felonies , he plead ed guilty to the felon

in

- posses sion charge

. At his sentencing hearing, however, Hall objected to the recommendation in the presentence report that his base offense level be increased four levels due to his allegedNo. 15

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involvement in the theft of Bench’s shotgun . He also argued before the district court that he should be given credit for his acceptance of responsibility for the offense with which he was charged

. Despite those arguments, the district court concluded that the government had established, by a preponderance of the evidence, th at Hall had taken possession of Bench’s shotgun during a burglary of Bench’s barn. In addition , the district court noted that Hall’s continued denial of his role in obtaining the stolen property belied his claim that he was entitled to a reduction in sent encing for acceptance of responsibility. G iven Hall’s extensive criminal record and his failure to conform his conduct to societal standards, the district court then departed upward from the applicable Guidelines sentencing range and sentenced Hall to 96 months in prison

— the same sentence Hall had received for a n earlier, 2004 felon

- in

- possession conviction. Hall now appeals the district court’s sentencing rulings

.
DISCUSSION

Standard of Review “W e review a district court’s sentencing determination, under a deferential abuse

- of

discretion standard, for reasonableness.” United States v. Pearce , 531 F.3d 374, 384 (6th Cir. 2008) (citation and internal quotation marks omitted). R easonableness review of a sentence “has both a procedural and a substantive component.” United States v. Erpenbeck , 532 F.3d 423, 430 (6th Cir. 2008) (citing Gall v. United States , 552 U.S. 38, 51 (2007)). Procedural errors include “failing to calculate (or improperly calcu lating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence

— including an explanation for any deviation from the Guidelines range.” Gall , 552 U.S. at 51. AppellateNo. 15

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review of the substantive reasonableness of a sentence “will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guid elines range.” Id. “A sentence is substantively unreasonable if the sentencing court arbitrarily selected the sentence, based the sentence on impermissible factors, failed to consider pertinent [18 U.S.C.] § 3553(a) factors, or gave an unreasonable amoun t of weight to any pertinent factor.” United States v. Cunningham , 669 F.3d 723, 733 (6th Cir. 2012) (citation omitted). Although we “may apply a rebuttable presumption of reasonableness to sentences within the Guidelines,” Pearce , 531 F.3d at 384 (citin g Gall , 552 U.S. at 51), the fact that a sentence imposed by a district court is outside the Guidelines range does not mean that we may apply a presumption that the sentence is unreasonable. Gall , 552 U.S. at 51.
Challenge to the § 2K2.1(b)(6)(B) Enhancem ent Upon Hall’s conviction for being a felon in possession of a firearm, the United States Probation Office recommended assign ing the defendant a Guidelines base offense level of 14 and adding two additional levels because the firearm possessed during the offense had been reported stolen

. See USSG § 2K2.1(a)(6)(A) ; (b)(4)(A)

. T he district court agreed not only with th ose initial calculation s , but also with th e probation office ’s recommendation that Hall’s offense level be increased another four levels because the defendant “used or possessed any firearm or ammunition in connection with another felony offense.” USSG § 2K2.1(b)(6)(B). P ursuant to the provisions of the commentary to USSG § 2K2.1(b)(6)(B) , the four

- level increase

“ appl[ies]

. . . in a case in which a defendant who, during the course of a burglary, finds and takes a firearm, even if the defendant did not engage in any other conduct with that firearm during the course of the burglary.” USSG § 2K2.1, comment. (n.14(B)(i)). Altho ugh he readily admits that he possessed a firearm and that he was a convicted felon, Hall objects to theNo. 15

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application of the four additional levels in calculating his Guidelines sentencing range because, he submits, there is insufficient evidence to conclud e that he was involved in the burglary of Brad Bench’s barn. In fact, Hall insists that the stolen shotgun was given to him by another individual and that he merely was attempting to sell the gun as a favor to that friend. In the district court, “ [t] he b urden is on the government to prove, by a preponderance of the evidence, that a particular sentencing enhancement applies.” United States v. Dupree , 323 F.3d 480, 491 (6th Cir. 2003). We have held that proof by a “preponderance of the evidence” may be de fined as “such evidence as, when considered and compared with that opposed to it, has more convincing force and produces in [the mind of the finder of fact] belief that what is sought to be proved is more likely true than not true.” Williams v. Eau Claire Pub. Sch. , 397 F.3d 441, 446 (6th Cir. 2005). We then review the district court’s conclusion that the preponderance

- of

- the

- evidence standard has been met for clear error, according due deference to the district court’s determinations. See, e.g. , United States v. Taylor , 648 F.3d 417, 432 (6th Cir. 2011). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committe d.” United States v. U.S. Gypsum Co. , 333 U.S. 364, 395 (1948).
I t is true that no direct evidence ties Hall to the burglary of Bench’s barn and to the theft of the Charles Daly pump

- action shotgun. But Hall’s later possession of the stolen gun was hardly his only tie to the burglary of the barn. However, other information before the district court supports its conclusion that what the government sought to prove “is more likely true than not true.” Williams , 397 F.3d at 446. In addition to Hall’s admitted possession of the stolen gun, the district court was aware of the defendant’s record of prior thefts and of the fact that items of hunting equipment stolen from other individuals who lived in close proximity to residences usedNo. 15

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by the defendant als o were found in Hall’s constructive possession. Furthermore, the district court heard testimony that a pair of Barska binoculars were found among Hall’s possessions, that Brad Bench claimed that those binoculars appeared to be his, and that Barska binocul ars were not commonly used by hunters in that area. Our review of the appellate record leads us to the inescapable conclusion that the district court did not commit clear error in determining that the evidence made it more likely true than not that Hal l was involved in the theft of items from Bench’s barn. As a result, there is no merit to the defendant’s challenge to the application of the § 2K2.1(b)(6)(B) enhancement to his sentence calculation.
Challenge to the Denial of a Sentence Reduction for A cceptance of Responsibility

The district court also refused to grant Hall’s request for a reduction in his Guidelines offense level for accepting responsibility and admitting his guilt of the felon

- in

- possession charge. In doing so, t he district court determined that such a reduction would be improper because Hall continued to deny his involvement in the burglary of Bench’s barn and the theft of the shotgun. “ We review the district court’s de termination that a defendant has not accept e d responsibility for the offense for clear error. ” United States v. Kamper , 748 F.3d 728, 744 (6th Cir.), cert. denied , 135 S. Ct. 882 (2014). The commentary to § 3E1.1 of the Guidelines provides that “a defendant who falsely denies, or frivolously co ntests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility.” USSG § 3E1.1, comment. (n.1(A)) (emphasis added)

. Because, as discussed above, the district court did not err in finding , by a preponderance of the evidence, that Hall indeed was involved in the burglary that resulted in the theft of Bench’s shotgun and binoculars , Hall’s continued denials of his involvement in thatNo. 15

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crime means that the district court did not commit clear er ror in denying the defendant a sentence reduction for acceptance of responsibility

. Challenge to the Propriety of the Decision to Depart Upward in Sentencing Even though Hall’s advisory Guidelines range called f or a prison sentence between 51 and 63 month s, the district court departed upward and imposed a 96

- month sentence upon the defendant. Hall contends that such a lengthy sentence was substantively unreasonable. In its initial calculations , the probation office assigned Hall a criminal history catego ry of IV, based upon the defendant’s numerous prior criminal convictions. The district court recognized, however, that even criminal history category IV “substantially underrepresent[ed] the seriousness of the defendant’s criminal history or the likelihoo d that

. . . the defendant will commit other crimes

. ” According to the district court, a number of Hall’s prior convictions no longer were counted in calculating the total number of the defendant’s criminal history points due to the age of those earlier crimes. However, those prior crimes were felonies , not “multiple misdemeanors or something of lesser importance than the offenses, which are not being counted here.” Moreover, as explained by the district court: This defendant has four

— count them

— four pr ior convictions for felon in possession of a firearm. Three in state court, and one in the Western District of Michigan Federal Court, for which he received a 96 month sentence, fr om one of my colleagues last decade. Criminal History Category IV does not adequately score the seriousness of that criminal hi story. When “reliable information indicates that the defendant’s criminal history category substantially underrepresents the seriousness of the defendant’s criminal history or the likelihood that the d efendant will commit other crimes, an upward departure may be warranted.” USSG § 4A1.3(a)(1). Here, the district court did determine that criminal history category IV indeed underrepresent ed the seriousness of Hall’s criminal history

— if for no reason oth er than the factNo. 15

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that some of his prior convictions were not counted simply because they had “aged out” while Hall served other prison sentences . T he district court thus departed upward and placed the defendant in criminal history category VI, the crimina l history category in which Hall fell during his sentencing for his earlier, 2004 felon

- in

- possession conviction. As a result, Hall was subject, as a criminal

- history

- category

- VI, level

- 20 offender, to a prison term of 70 to 87 months. Even then, the dis trict court did not feel that the available range of sentences would provide adequate punish ment for Hall. Thus, pursuant to the directives o f USSG § 4A1.3(a)(4)(B), the district court “structure[d] the departure by moving incrementally down the sentencin g table to the next higher offense level in Criminal History Category VI

. . .,” to the 77

- to

- 96

- month range appropriate for a criminal

- history

- category

- VI, level

- 21 offender. Having settled on a Guidelines range that it felt was appropriate, the district court stated: And for protection [of] the public, because this defendant is a serial offender, and he is a serial offender involving weapons, which in the Court’s judgment is extremely serious. And also for purposes of specific deterrence of Mr. Hall, it seems a non

- starter to give him a sentence which is lower than the 96 month sentence for purposes of just punishment and for specific deterrence of Mr. Hall, it’s a non

- starter to give him a sent ence less than he received by my colleague approximately ten years ago. So for that reason, for specific deterrence and as well as general deterrence of others who might contemplate similar activity after rolling up the criminal history that Mr. Hall h as [rolled] up, a further departure of one level down is appropriate, the resulting advisory g uideline range is 77 to 96 months. Mr. Hall just doesn’t get it. He cannot conform his conduct to the requirements of the law. He was on supervised release for a very short period of time and, of course, [a] supervised release

. . . violation is a violation of trust, which is separate and apart from further violations of the federal or state criminal law. But the Court gave Mr. Hall an opportunity to perform and m easured a certain amount of leniency for Mr. Hall, but for whatever reason Mr. Hall jus t couldn’t stay away from violating the criminal law. I think just punishment for this offense in light of all of the factors which are attendant to the case calls for a sentence at the upper end of the g uideline range as I have found in in this particular case.No. 15

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Accordingly, it’s the judgment of the Court the defendant is committed to the custody of the Bureau of Prisons to be imprisoned for a term of 96 months. This sentence is not substantively unreasonable. First, there is no question that the 96

- month prison term was not selected arbitrarily. Rather, the district court recognized that Hall had been given a 96

- month sentence in 2004 for a prior conviction for bein g a felon in possession of a firearm. It would make little logical sense to impose a more lenient sentence for a subsequent violation of the same federal criminal law simply because the inexorable passage of time rendered some prior convictions too remote to be considered in the Guidelines calculation of the defendant’s criminal history category. Given the recidivist tendencies exhibited by Hall, t he district court’s sentence would not have been arbitrary even if it had been harsher than , rather than mere ly equal to, the 2004 sentence imposed by another district judge for the same offense

. Second, the district court did not base its sentence on impermissible factors. Instead, the district court considered Hall’s criminal history, the seriousness of the o ffense, the need to deter Hall from future misconduct, the need to dissuade other individuals from similar criminal conduct, and the need to protect the public from further crimes of the defendant. Thus, the court did not fail to consider any of the relev ant factors listed in 18 U.S.C. § 3553(a) and did not give undue weight to any of those considerations. The above

- Guidelines

- range sentence imposed by the district court was , therefore, both justified and reasonable. The judgment of the district court is AFFIRMED.