NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0343n.06 No. 09-6177 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, P laintif f-App ellee,

v. GORDON POWEL L , Defendan t-Appellant.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF KENTUCKY

O P I N I O N

Before: M OORE an d WHIT E, Circuit Judges, and VARLAN, D istrictJudge. * THOMAS A. VARLAN, District Judge. Gordon Powell (“Powe ll”) pled guilty to the offe nse of devising and int ending to devise a scheme and artifice to defr aud, n amely , a scheme t o defr aud a person over whom he had a fiduciar y responsibility , for the pur pose of obtaining money and proper

ty by means of false and fra udulent prete nses, repr esentations, and promises. The district court sentenc ed Powell to thirty -six months o f i m p ri s o nment, to be followed by two y ear s of supervised r elea se, and imposed upon Powell a $10,000 f ine. On appea l, Powell argues that (1) the district court err ed in not considering rele vant evidenc e at sentenc ing, namely , cer tain seale d state-c ourt rec ords, which he asser ts would have shed light on the rela tionship betwee n Powell and the victim and provided ample rea son not to impose an upwar d varia nce from the Guidelines; (2) the thirty -six month sentenc e is substantively unrea sonable g iven

The Honora

ble Thomas A. Var lan, United States District J udg e for the Easter

n District of * Tenne ssee, sitting by

desig nation.No. 09-6177

United States v. Powell

the fa ct s of the case as well as Powell’s car e for the victim, lack of criminal history , ag e, and likelihood of rec idivism ; and (3) there was no evidenc e to support the imposit ion of a $10,000 fine. We conclude that the district court did not err in declining to consider the seale d state-c ourt rec ords, that, under the totality of the circ umstances, Powell’s sentenc e is substantively rea sonable, and that t h e d istrict court did not err in imposing a $10,000 fine. There fore , we AF F IRM the sentenc e imposed by

the district court. I. BACKG ROUND A. F actual Background In 2004, Powell moved to Ludlow, Kentucky

. An elder ly woman, Fa ith Hunter (“Hunter” ), lived down the street. Powell met Hunter and, afte r lear ning that Hunter had substantial wea lth, he befr iended he r. Shortly there afte r, Hunter came to live with Powell and his wife. Powell then preva iled upon Hunter to execute a Power of Attorney (“POA” ), g iving Powell authority ov er Hu n t er ’s financ ial aff airs. Powell used the P OA to liquidate some of Hunter’ s assets and cause d a portion of the proce eds to be deposited into bank acc ounts held in the name of Powell a nd his w ife. Powell used the funds for, among other things, paying persona l obliga tions that wer e in no way related to Hunter. B. Pr ocedural Background On May 28, 2005, the g overnme nt filed a one-c ount information ag ainst Powell in the United States District Court for the Easter n District of Kentucky , char g ing him with devising and intending to devise a scheme and artifice to defr aud, namely , a scheme to defr aud a person over whom he had

2No. 09-6177

United States v. Powell

a f i du ci ar y re s ponsibili ty , for the purpose of obtaining money and property by means of false and fra udulent prete nses, repr esentations, and promises. On the same day , Powell appea red befor e the district c ourt for his arra ignme nt and plea. Pursua nt to a written plea agree ment, Powell e ntere d a plea of guilty to the information. He w as re lease d on bond. Powell subsequently appea red befor e the district court for sentenc ing. During the sentenc ing hear ing, the g overnme nt introduced evidenc e that attempted to show that Powell abused his position of trust with Hunter and that he mistreated Hunter. In partic u l ar , the g overnme nt introduced the testimony of Hunter’ s car etake r, J ennife r Noe (“N oe”) , who testified that Powell phy sically abused and neg lected Hunter, who suffe red from dementia. Noe testified t h at Hu n ter’s living space in Powell’s home consisted of a single , baseme nt room with one small window and a door that locked from the outside, and that Hunter was kept almost exclusive l y i n h er room , was not allowed outdoors, and was not allowed to attend worship service s. Noe further testified that Powell ref used to allow Noe to purc hase pr oper clothing for Hunter or allow Hunter to rec eive medic al treatment despite plea s from Noe that Hunter’ s condition was worse ning. The g overnme nt also introduced the testimony of Br ian Huene feld (“ Huene feld” ), a postal inspector with the United States Postal Inspection Service , who initiated an investigation of Powell. Huene feld testified that he conducte d a financ ial analy sis of Powell’s bank acc ounts, and that afte r the POA was executed, six acc ounts wer e opened by Powell: three in the name of Powell and Hunter and three in the name of P owell and his wife. He further testified that when Hunter’s assets wer e liquidated, $275,000 out of $600,000 was transfe rre d into acc ounts held by Powell and his wife, and

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United States v. Powell

used for their benef

it. Huene feld also testified that, during the course of his investigation, he lear ned about Powel l ’s abuse of Hunter, including that Powell did not allow Hunter outside and did not allow Hunter to rec eiv e m ed ical car e. L ast, he testified that his investigation reve aled that funds from one of Powell’s persona l acc ounts wer e used to pay an attorney to deter mine Hunter’ s competenc y

to execute documents pe rtainingto her e state. Although Powell cross-e x amined Noe and Huene feld, Powell did not prese nt any witnesses of his own. Powell also did not addre ss the court himself. Rather, Powell’s attorney informed the court that he would be spea king f or Powell. Nea r the end of the sentenc ing hearing, the district court informed the parties that the court had rec eived cer

tain seale d state-c ourt rec ords and that the court was unawa re of who had cause d the

rec ords to be submitt ed, what the re co rd s we re , or why they wer e direc ted to the court. Powell’s attorney responde d that he had direc ted the rec ords to the district court and that, althoug h he had “no idea what the contents wer e,” he “g ot the impression that it was information that would be pertinent to [the sentenc ing] hear ing.” Sent. Tr. at 53. The district court declined to revie w the seale d statecourt recor ds, expl ainingthat it was “not g oing to c onsider the c ontents of what’s been forwa rded if neither side had revie wed it.” Id. at 53-54. The g overnme nt indica ted that it was “agree able” to the district court’s c ourse of action; neither Powell nor his attorney commented on the matter. Id. at 54. The district c ourt then stated that it would place the materials in the rec ord. A lt h o u gh Po w e ll ’ s Gu id e li n e s rang e was twenty -one to twenty -seve n months’ imprison me nt, the di strict court sente nced Powe ll to a term of i mprisonment of t hirty -six months, to be followed

4No. 09-6177

United States v. Powell by two y ear s of superv i s ed rele ase. The district court also imposed upon Powell a $10,000 fine, which wa s within the Guidelines rang e of $6,000 to $60,000. II. ANALYSIS A. The DistrictCourt’s F ailure to Consider the Sealed State -Court R ecor ds The g overnme nt argues that P o we l l waived his argument that the district court err ed in declining to consider the seale d state-c ourt rec ords beca use he rema ined silent afte r the district court informed the parties that it was not g oing to consider the rec ords and the g overnme nt agree d to that

course . Powell co unters that he did not waive this arg ument beca

use “[a]t no time did counsel indicate that he did not want the court to consi d er the documentation, or t hat he was withdrawing it from considera

tion.” Reply . Br . 1. During sentenc ing, the district court had the following exchang e with Mr. Helling s, counsel for Powell, and Mr . Dusing , counsel for the g overnme nt, reg ardingthe sea led state-c ourt rec ords: THE COURT: All rig ht. One question, Counsel, befor e we proce ed with allocution. Someone asked that cer

tain rec ords from the Kenton Circuit Court be direc ted to me. I ’m not sure who did that – MR. HEL L I

NGS: J udg e, that wa s my -- THE COURT: -- or

the re ason for

it. I ’m sorry ? MR. HEL L I

NGS: Idid that. I f I

could g ive the Court some bac kg round? THE COURT: Yes, sir. MR. HEL L I

NGS: J udg e, what happene d was this case initially started as a state court action, and I had hear d, based upon conver sations wi t h my clients, about this conver sation with Ms. Hunter a n d M s . Davis. I attempted to g et that conversation. Ms. Davis claimed privileg e. J udg e Sheehan, the circ uit j u d ge who had the case , order ed the matter be transcr ibed and seale d and put in his c hamber s. The case was ultimately dismiss ed, it’s bee n sitti ng there , I have no idea what the contents wer e, but I g ot the i m pression that it was information that would be pertinent to this hear ing. I don’t know what Ms. Hunter said or didn’t say , s o t h at’s why it was brought to the Court’s attention. 5No. 09-6177

United States v. Powell

THE COURT: All rig ht. So at this point, neither of the attorney s have revie wed what was for war ded to me by

the Kenton Circuit Court; is that corre ct? MR. HEL L I

NGS: As an off

icer of the Court, I

have not. MR. DUSI

NG: I have not, Your

Honor. THE COURT: Okay

. I ’m not g oing to consider it unless both sides h ave revie wed that. MR. DUSI

NG: I would be agree able to that. THE COURT: It will not be considered. So I will – I ’m g oing to g ive a c opy to the Clerk s o i t can be put in the rec ord, but I ’m not g oing to consider the contents of what’s been forwa

rded if neither side has re v i ew ed it. All rig ht. Thank you. L et’s proce ed with allocution in the case . I ’l l hear first from Mr. Helling s and also from Mr. Powell, if he would like to addre ss the Court, and then I ’ll hear from Mr. Dusing

. Sent. Tr. at 57-58. Powell and his attorney d i d n o t object afte r the district court informed the parties that it woul d not be considering the s eale d state-c ourt rec ords. Indeed, despite the opportuni ty to d o s o , at no point du ri n g t h e s en t encing hear ing did Powell or his attorney take issue with the district court’s decision not to consider the rec ords. It does not appea r from the rec ord, howeve r, that Powell took “af firmative steps to voluntarily waive hi s cl aim ,” or “intentionally relinquishe[d] or abandon[ed] a known rig ht.” United States v. Graham , 622 F.3d 445, 455 n.9 (6th Cir. 2009) (citing United States v. Goodman , 519 F.3d 310, 319 (6th Cir. 2008)) (interna l quotation marks omitted). Acc ording ly , we construe his arguments as forf eited rathe r than waived, and revie w for plain err or. See id. ; see also United States v. Vonner , 516 F.3d 382, 385 (6th Cir. 2008) (noting that a party who fails to make an objection “for feits the argument and may obtain relief on appea l only if the err or is ‘plain’ and ‘af

fec ts substantial rig hts’” (citing Fe d. R. Crim. P. 52(b)) ); United States v. Bailey , 488 F.3d 363, 367- 68 (6th Cir. 2007) (c itation omit ted).

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To establish plain err or, Powell must demonstrate “(1) err or, (2) that is p l ai n , an d (3) that aff ect[s] substantial rig hts and that (4) the err or seriously aff ect[s] the fairne ss, integrity , or public reputation of t he judi cial procee dings.” United St ates v. Brock, 5 0 1 F.3d 762, 773 (6th Cir. 2007) (citation an d internal quotation marks omi tted) (alterations i n orig inal). “Plain err or i s define d as

an egreg ious err or, one that direc tly leads to a miscarr iag e of justice.” United States v. Krimsky , 230 F.3d 855, 858 (6th Cir. 2000) (citation omitted). “Ge neral l y , an err or does not aff ect substantial ri g hts unless it is prejudicia l—in other words, the err or ‘must have aff ecte d the outcome of t h e district court procee dings.’ ” Bailey , 488 F.3d at 368 (citing United States v. Olano , 507 U.S. 725, 734 (1993)) . “[O]nl y

in e x ceptional circ umstances” will we find such err or, and the err or must be “so plain that the trial judge

. . . [was] dere lict in countena ncing it.” United States v. Gardiner , 463 F.3d 445, 459 ( 6th Cir. 2006) (citation omitted). On appea l, Powell sets forth three g rounds in support of his contention that the district court

err ed in not considering the rec ords: first, that the district court should have considere d the rec ords under 18 U.S.C. § 3661; second, that the district court could have considere d the rec ords under Rule 32 of the Fe dera l Ru l es o f Criminal Procedur e beca use that rule aff

ords defe ndants the rig ht to prese nt information in mitigation of punishment; and third, that the district court preve nted Powell from mee ting his burde n of produc tion as to mit iga tion. Wit h respe ct to Powe ll’s argument that the district court should have revie wed the r ecor ds beca use 18 U.S.C. § 3661 provides that “no limit ation shall be place d on the information conce rning the background, char acte r, and conduct of a person convicte d o f an offe nse which a court of the

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United States may rec eive and consider for the purpose of imposing a n a p p ropriate sentenc e,” Powell fails t o point to any case in this Circuit or e lsewher e that would have require d the di strict court to consider the rec ords under the statute. L ikewise, with respe ct to Powell’s arg ument reg arding Rule 32, Powell is corr ect that “Rule 32 ‘explicitl y aff ords the defe ndant two rig hts: to make a statement in his own behalf, and to prese nt any information i n mitigation of punishment.’” United States v. Sammons , 918 F.2d 592, 604 (6th Cir. 1990) (citation and internal quotation marks omitted). I f the district court invites the defe ndant to speak, howeve r, both rig hts are satisfied. Id. (citation omitted). Her e, the district court asked: “Would Mr. Powell like to addre ss the Court? ” and Powell’s attorney

re s p onded: “He does not, J udg e. He asked me to speak for him.” Sent. Tr. at 58. Fin al l y , wi t h respe ct to Powell’s argument that he was prec luded from meeting his burden of production, Powell

was able to prese nt the rec ords to the district court and never objected to the district cou rt n ot considering the rec ords. He also was aff orded the opportunity to p re s en t wi tnesses and other evidenc e, but he chose not to do so. Nor did Powell offe r the rec ords under either 18 U.S.C. § 3661 or Rule 32. More pe rtinent to Powell’s argument is “F eder al Rule of Criminal Procedur e 32(i)( 1)(C)[, which] states that, ‘[ a]t sentenc ing, t h e court .

. . must allow t he parties’ attorney s to comment on the probation officer ’s deter minations and other matters relating to an appropri ate sentenc e[.] ’” United States v. Bey , 384 F. App’x 486, 490-91 (6th Cir. 2010) (empha sis and altera tion in orig inal). The Six th Circuit has “re ad Rule 32(i)(1) (C) to require advanc e notice of any evidenc e to be relied upon at sentenc ing” beca

use “when undis closed evidence is fac tored int o the s entenc ing calculus,

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the parties are denied their opportunity to addre ss information g erma ne to the distric t c o u

rt’s ultimate decision.” Id. at 491 (citing United States v. Christman , 509 F.3 d 2 99, 304-09 (6th Cir. 2007); United States v. Patrick, 988 F.2d 641, 649 (6th Cir. 1993) (asse ssing whether a failure to disclose evidence d ep ri v ed the defe ndant of “a sufficie nt opportunity to challeng e [i t] ”); United States v. Rey noso , 254 F.3d 467, 473 (3d Cir. 2001) (“Were a court permitted to impose a sentenc e based in part on testimonial or other evidenc e from another proce eding not involving the defe ndant without gi v ing the defe ndant and the Gover nment advanc e notice, the defe ndant’s rig ht to comm en t meaning fully on all matters rele vant to the sentenc e would be seriously compromised.”) ). Despite the pref ere nce for inclusion of information at sentenc ing, see Bey , 384 F. App’x at 4 9 0, had the district court relied on the seale d state-c ourt rec ords without a specific re qu es t to do so from the defe ndant afte r the court observe d that neither party had revie wed them, the district court might have run af oul of Rule 32(i)(1) (C). He nce, w e find the district c ourt committed no err or. Even assuming that the district court committed err or in not considering the rec ords, Powell does not attempt to demonstrate that the failure aff ecte d the outcome of the sentenc ing hearing—he

mere ly surmises that it would. And g iven the district court’s conclus i o n s about Powell’s procur ement of an attorney to deter mine the competenc y of Hunter to execute documents perta ining to her estate, it seems doubtful that the rec ords, which transcribe that attorney ’s meeting with Hunter, would have a ffe cted Powell’s se ntence

. 1

The interview transcr ipt re ceive d on appea l appea rs incomplete. I f the district court was 1 provided an incomplete transcr ipt as well, it seems all the more unlikely that it would have aff ecte d Powell’s sentenc e. 9No. 09-6177

United States v. Powell

Powell also argues that we should rema nd so that the district court may conduct an in came ra revie w of the rec ords. In support of his argument, Powell relies on Pennsylv ania v. Ritchie , 480 U.S. 39 (1987). The Six th Circuit has su m m ar i z ed t he portion of Ritchie upon which Powell relies as follows: [ A] defe ndant charg ed with sexually abusing his daughter sought acc ess to h er Children and Youth Service s (C YS ) rec ords during pretria l discovery

. The state ref used acc ess, and the defe ndant char g ed that the state there by violated h i s Six th Amendment rig hts beca

use the rec ords could contain exculpatory evidenc e or leads to favor able witnesses. The Supreme Court c onstrued the defe ndant’s challeng e as a F ourtee nth Amendment Due Proc ess claim and a pplied the “c lear

framework” of Brady and its prog eny to assess the fundame ntal fa i rn es s of the defe ndant’s trial. There , the Court stated: At this stag e, of course , it is im p o s sible to say whether any information in the CYS rec ords may be rele vant to Ritchie’s claim of innocenc e, beca

use neither the prosec ution nor defe nse counsel has seen the information, an d the trial judge acknow ledg ed that he had not revie wed the full file. The Commonwealth, howeve r, argues that no mat eria lity inquiry is require d, beca use a statute rende rs the contents of the f

ile privileg ed. As a result, the Court found rema nd for in came ra revie w of the file appropr iate and nece ssary to the district court’s “dete rmin[ation] whether it contains information that probably would have chang ed the outcome of [t he defe ndant’s] trial.” Notably , the Court did not hold that the g overnme nt must g ive defe nse counsel unbridled acc ess to the information; only that the court be permitted to examine it. Acc ording ly , once a def endant “ establish[es] a basis for his claim t hat [ the records sought] contain [ ] materia l evidenc e,” even though he cannot articulate with specific ity the materia lity of those re cords, r emand f or in camera revie w may

be appr opriate. United States v. W

hite , 492 F.3d 380, 410 (6th Cir. 2007) (interna l citations omitted) (alter ations in orig inal) (re manding and order ing the distric t co u rt to conduct an in came ra revie w to deter mine whether a Brady violation occurr ed).

10No. 09-6177

United States v. Powell Assuming Ritchie provides authority for us to order a rema nd for in came ra revie w as Powell sug g ests, we decline to do so beca use Powell fails to establish a basis for his claim that the rec ords 2 contain materia l evidenc e that would aff ect the outcome of sentenc ing. Powell states that the rec ords descr ibe Hunter’ s circ umstances and the relationship betwee n Hunt er an d Powell. The rec ord, howeve r, demonstrates that the district court consider ed i nformation conce rning Hunter’ s circ umstances and the relationship betwee n Hunter and Powell from a varie ty of other source s, and,

as previously noted, it is doubtful that the rec ords would have chang ed the sentenc e selec ted by the district court. In sum, we find that the district court did not commit plain err or in not considering the seale d state-c ourt rec ords, and we do not f ind it nece ssary to r emand for in c amera revie w of the rec ords. B. Su bstantive Reasonableness of P owell’s S entence Powell argues that his sentenc e of thirty -six months of imprisonment , a sentenc e that exceeds the top of the Guidelines rang e by nine months, is substantively unrea sonable in light of the section 3553(a) fac tors. We revie w sentenc es imposed by the district court for rea sonablene ss. United States v. Collington , 461 F.3d 805, 807 (6th Cir. 2006) (c itation omit ted). A sentenc e outs ide t he Guidelines rang e “ca

rries with it no leg al presumption.” United States v. Vowell , 516 F.3d 503, 509 (6 t h C i r. 2008) (citing Rita v. United States , 551 U.S. 338, 355 (2007))

. Rather, “re g ardle s s o f

In discussing Ritchie , the Six th Circuit noted that “sister circ uits have signa led approva l of 2 rema nd for in came ra proce eding s to asce rtai n t h e m ateriality of the evidenc e soug ht in various ci rc u m s tance s.” W

hite , 492 F.3d at 410 n.14 (citations om itted). Those circumstance s, howeve r, are not fac tually

simil ar to this case

. 11No. 09-6177

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whether [a] sentenc e is within the Guidelines rang e or signific antly outside it,” we “must revie w 2ever y sentenc e that is fre e from proce dural err or under a defe rential abuse- of-discr etion standard.” Id. at 509 (c iting Gall v. United States , 552 U.S. 38, 51 (2007)). “A sentenc e may be considere d substantively unrea sonable when the district court ‘selec t[ s] the sentenc e ar

bitrarily , bas[es] t he sentenc e on impermissible f actor s, fail[s] to c onsider pertinent § 3553(a) fac tors[,] or g iv[ es] an unrea sonable amount of weight to any pertin ent fac tor.’” Colli ngton , 461 F.3d at 808 (quoting United States v. W ebb , 403 F. 3 d 3 7 3 , 385 (6th Cir. 2005)) (alter ations in orig inal). “We do not require a ‘mechanic al recitation of the § 3553(a) fac tors, but [we do require ] ‘an explanation of why the district court chose the sentenc e that it did.’” Vowell , 516 F.3d at 510 (citation omitted). When conducting our revie w, we take into acc ount the “totality of the circ umstances, including the extent of any varia nce from the Guidelines rang e.” Id. at 510-11 (citation omitted). In deter mining Powell’s sentenc e, the district court first outlined some of the information it relied upon in fa s h i oning Powell’s sentenc e. As noted, it did not consider the seale d state-c ourt

rec ords, but it did consider the sentenc ing memoranda , letters, materia ls attache d to the sentenc ing memoranda , i n cl u d ing an Adult Protective Service s repor t, which the court found contained a considera ble amount of hear say but nonetheless was sufficie ntly reliable , and the testimony of Noe and Hue nefe ld. The district co u rt conclude d that, althoug h Powell’s motives may have been altruistic to beg in with, they “did not end up that way .” Sent. Tr. at 66. In particula r, the district court found that

12No. 09-6177

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Powell assisted Hunter with her dementia at first , b u t afte r lear ning she had substantial assets, he exploi ted the situation a

nd used a substantial por

tion of her assets for his own be nefit. The district court also deter

mined that Powell neg lected and abused Hunter, and found that there was “a rea son” he paid a n attorney to determine the competenc y of Hunter

. Id. at 43-47, 67. I n an al y zing the section 3553(a) fac tors, the district court decla red that this was a “tra gi c

case .” Id. at 68. Although Powell did not have any criminal-history points, the district court noted that neither “his history [nor] his char acte ristics are something t h at I woul d be proud of if I wer e either him or a member of his family or a member of his churc h,” and the court compar ed Powell’s actions to the abuse of a small c hild. Id. at 68. The district c ourt stressed that it ne eded to impose

a sentenc e to provide adequa te deter renc e to Powell , but also to “other s that might be inclined to eng ag e in this con du ct i n t h e h opes of rec eiving a windfall under a will,” and that a withinGuidelines sentenc e would not be s u ff i ci en t t o do that. Id. at 67-68. The district court further considere d the need to avoid unwar rante d sentenc ing disparities, and found that the court had “not

run into a case that’s simil ar to this in which an old person—a n elder ly person suffe ring from some degree of dementia has been abused to the extent that this lady was abused and exploi ted. So there ’s

rea lly no one to compar e the situation with.” Id. at 70. Despite the district court’s analy sis, Powel l as s er ts three rea sons why his sentenc e is substantively unrea sonable. First, he argues that the distri ct co u rt d i d not consider the following mitigating fac tors: Powell’s family circ umstances and support; the support o f P o well’s friends despite their knowledg e of the offe nse; that Powell would have rec eived the funds in any event under

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the will; and Powell’s lack of criminal history and employ ment rec ord. Second, Powell argues that he did not exploi t Hunter, as the evidenc e showed that he “fe d her, clothed her, and provided war m comforta ble shelter for her for her rema ining year s.” Appe llant Br. 15- 16. Finally , Powell arg ues that the district court’s use of t h e d et err ence fac tor to incre ase Powell’s sentenc e was improper beca use Powell “wa s not likely to rec idivate in the future” g iven that his c riminal history cate g ory was I and he w as for

ty -six at the time of sente ncing

. Id. at 16. The district court did not abuse its discretion. As discussed, the district court considere d the section 3553(a) fac tors, and did so in more than a cursor y fashion. The district court also considere d Powell’s family circ umstances and the support of his friends and family , as well as Powell’s criminal history and employ

ment rec ord. T h e d i s t ri ct court further considere d Powell’s asser tion that he would have taken under the wil l and concluded t hat t here wer e questions surrounding the m ethod by which the will was p ro cu red, including that Powell paid an attorney to deter mine Hunter’ s competenc y . Moreove r, the district court considere d Powell’s contention that he did not exploi t Hunter but found that Powell’s intentions, whic h may have been “altruistic” to be g in w ith, did not end that way . Sent. Tr. at 66. The district court also did not consider the deter renc e fac tor solely as to Powell, as Powell sug g ests, but considere d g ener al deter renc e, which is appropr iate under section 3553(a)

. In addition, a re view of the rec ord indicate s that the district court did not g ive any fac tor any more weight than it did others. Instead, the district court fashioned Powell’s sentenc e based on the totality

of the c ircumstance s and var ied upwar d by nine months.

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United States v. Powell

We must g ive “due defe renc e to the [d] istrict [c] ourt’s rea soned and rea sonable decision that the § 3553(a) fac tors, on the whole, justified the sentenc e.” Vowell , 516 F.3d at 512 (citing Gall , 552 U.S. at 59- 60) (alter ations in or igina l). Acc ording ly , and in light of the discussion he rein, we find the district court’s se ntence of thirty -six months of imprisonment subst antively rea sonable. C. Im position of a $10,000 Fine Powel l ar gu es that the district court err ed in imposing a fine beca use the Presentenc e Investig ation Report (“PSR”) indicated that he could not pay a fine either prese ntly or in the future. Although Powell argues that we must review t h e imposit ion of the fine for abuse of discretion, a district court’s finding reg arding whether a defenda nt is able to p ay a fine is a factual finding that

we r eview f

or clea r err or. United States v. Thomas , 272 F. App’ x 479, 489 (6th Cir. 2008) (c iting United States v. Hic key , 917 F.3d 901, 906 ( 6th Cir. 1990)). Section 5E1.2 of the Guidelines states that “[t] he court shall impose a fine in all case s, except wher e the defe ndant establishes that he is unable to pay and is not likely to become able to pay any fine.” U.S. Sentencing Guidelines Manual § 5E1.2(a)

. “I n determ i n ing the ability of a defe ndant to pa y the fine, the district c ourt must assess ‘(1) the def endant’ s income and ear

ning capa city , (2) [hi s] financ ial resour ces, (3) the burden on t h e d ef en dant and [hi s] depende nts, (4) whether restitution is ordered a

nd the amount of restitution, ( 5) the need to deprive the defe ndant of illeg al g ains, and (6) the need to p ro m o t e respect for the law.’” Id. at 489 (citing United States v. Jack son-Randolph , 2 8 2 F.3d 369, 387 (6th Cir. 2002)). Although “[t] he Six th Circuit has not

res o lved the question of whether the district court must make expli cit finding s on the rec ord

15No. 09-6177

United States v. Powell

reg ardingits consideration of these fac tors,” id. (citation omitted), we have indicate d that detailed finding s are not nece ssary wher e it can be inferr ed that the district court considere d the defe ndant’s ability to pa

y and other fac tors require d by law, see United States v. Tosca , 18 F.3d 1352, 1354-55 (6th Cir. 1994). In deter mining that a f

ine should be imposed upon Powell, the district court stated: I also believe that a fine is appropr iate in this particula r case . I f, as has been repr esente d to the Court, and I have no rea son to doubt that, the Powells did rec eive the benef it or assets from the wi l l an d t es t ament of Ms. Hunter, then in those circ umstances there are cer tainly sufficie nt funds that would allow pay ment of a fine in this particular c ase. I

do believe justice demands it.

. . . . He will be f

ined in the amount of $10,000 for the re asons I

previously

stated[.] Sent. Tr. at 69-70, 71. On appeal, P owell ar gues that he did not, in fac t, benef it from Hunter’s wil l and that there

was no evidenc e of pay

ments from the will in the PSR repor t. He acc ording ly submits that there was

no evidenc e to support the contention that Powell actua lly rec eived fu n d s from probate

. Powell furth er ar gu es t h at the PSR indicated that he had no rea l estate, car s, or financ ial assets and had medical bills and cre dit car d debt totaling around $10,000, as well as that he was forty -six y ear s old at the time of sentenc ing, had no GED, had had his vehicle and house seized and forf eited as part of the ca se, and w as fa cinga leng thy prison sentenc e. Despite Powell’s arguments, evidenc e prese nted during sentenc ing established that Powell diverted approximately $275,000 of Ms. Hunter’ s money to himself, and Powell’s attorney argued

16No. 09-6177

United States v. Powell

that the Powells wer e to rec eive Hunter’ s estate. Powell has the b u rd en o f est ablishing that he is unable to pay a fine, Hicke y , 917 F.2d at 907 (citations omitted), and the rec ord indicates that Powell did not put forth evidenc e at sentenc ing that sug g ested he could not pay a fine or become able to pay

a fine. Indeed, during sentenc ing, the g overnme nt reque sted that the district court consider imposing

a fine based upon the fac t that the defe ndant took under Hunter’ s will and Powell never objected or attempted to inform the district c ourt otherwise. Although Powell makes much of the fac t that the PSR indicated that Powell did n o t h av e the ability to pay the fine, the district court “wa s not obligated to acc ept the pre sentenc e report rec ommendation.” United States v. Londono-Me jia , 86 F. App’ x 825, 826 (6th Cir. 2004). Acc ording ly , we find that the district court’s conclusion that Powell cou ld p a y a $10,000 fine, a fine at the low end of

the Guidelines ra

ng e, wa s not clear ly

err oneous. III. CONCLUSION For the re asons explained above, w e AF F IRM the sentenc e imposed by the district court.

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