IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION
UNITED STATES OF AME RICA , Plaintiff, ) ) ) ) ) ) ) ) ) CASE NO.: 2:15

- MJ

- 605
JUDGE NORA M. KING

v. SHANNON WAYNE HARROL D , Defendant

. MEMORANDUM SUPPORTING PROBABLE CAUSE

T he United States of America, by and through its undersigned counsel , herein submits this memorandum in response to the Court’s concern about whether the acts of SHANNON WAYNE HARROLD (the “Defendant”), as alleged in the Complaint and the preliminary hearing, constitute disposal. It is the Government ’ position that there is probable cause to believe that the D efendant ’s actions at Roses Discount Store (“Roses”) , o n August 25, 2015, in conjunction with other actions by the De fendant,
constitute “the course of disposal ”

. The Government provides the follow ing in support of this position. Summary Of Clean Air Act Requirements The Clean Air Act, 42 U.S.C. § 7401 et seq ., and regulations promulgated by the United States Environmental Protection Agency (“ U.S. EPA ”) establish that it is illegal in the course of maintaining, servicing, repairing, or disposing of an appliance to knowingly vent, release, or dispose a Class I or II substance, which was used as a refrigerant, in such Case: 2:15-mj-00605-NMK Doc #: 11 Filed: 10/16/15 Page: 1 of 8 PAGEID #: 312 a manner that permitted the Class I or II substance to enter the environment. See 42 U.S.C. § 7671g and 40 C.F.R. § 82.15 4(a)

. Defense counsel and the Court agreed that all the elements of the violation had been established by the Government, but for the concerns raised about whether the Defendant’s actions sh ould be considered in the course
of disposal. The term “d isposal” is defined at 40 C.F.R. § 82.152 as the process leading to and including: 1) t he discharge, deposit, dumping or placing of any discarded appliance into or on any land or water; 2) t he disassembly of any appliance for discharge, deposit, dumping or placing of its discarded component parts into or on any land or water; or , 3)

t he disassembly of any appliance for reuse of its component parts. Summary Of Facts From The Preliminary Hearing On August 25, 2015, City of Whitehall Police Officer K.S. J acobs was dispatc hed
to Roses’ , located at 4632 East Main Street Whitehall, Ohio, to investigate an attempted theft of an air conditioning unit. Employees of Roses told the Officer Jacobs that a male approached a Roses’ employee and stated he was there to work on the roof top air conditioning unit, including changing the filters on the unit. The male has been clearly identified as the Defendant. The Defendant was wearing a work shirt with a logo for “Eagle Heating and Cooling.” Eagle Heating and Cooling is the company contracted by Roses to perform maintenance on their air conditioning equipment. Shortly after the Defendant was granted access to the roof, a Roses’ employee contacted Eagle Heating and Cooling. The Roses’ employee was told that no employee Case: 2:15-mj-00605-NMK Doc #: 11 Filed: 10/16/15 Page: 2 of 8 PAGEID #: 323 from Eagle Hea ting and Cooling was scheduled to perform service or maintenance at the

store. A Roses employee confronted the Defendant on the roof and the Defendant said the paperwork for this job was in his vehicle. When the Defendant reached his vehicle, he did not p roduce any paperwork but fled the scene. Upon returning to the roof, the Roses’ employees found that one of the air conditioner units had been vented. Specifically, the tubing on the air conditioner unit’s condenser was cut using an electrical saw, releas ing the refrigerant from the unit into the atmosphere. The Defendant is a former employee Eagle Heating and Cooling. The cost

to repair/replacement the damage d one the destroyed unit was over $20,000. This includes replacement of the refrigerant wh ich w as vented by the Defendant.
Prior to the Defendant’s venting and destruction of the air conditioning unit at Roses the Defendant sold a total of 24 1 air conditioning components to A

- Z Recycling Incorporated (“A

- Z”) and New World Recycling LLC (“New World”)

. Both A

- Z and New World own and operate a scrap metal recycling facilities in Columbus, Ohio. In fact, A

- Z and New World are located next to one another and share scale for the weighing of scrap metal. A

- Z and World Recycling purchase air conditioners and air conditioner parts, such as coils and compressors, f rom walk

- up customers f or recycling.

1 Upon closer examin ation of the scrap sales, the Defendant sold a total of 24 air conditioner components and 13 undescribed metal objects to A

- Z and New World o ver a 30 day period. Because a complete description of the metal objects is not included in the scrap sales documentation, it is unclear whether or not the 13 metal objects are components from an air conditioner. Case: 2:15-mj-00605-NMK Doc #: 11 Filed: 10/16/15 Page: 3 of 8 PAGEID #: 334 The sales by the Defendant started on or about the beginning of August 2015, and continued for the next 30 day s . O n September 18, 2015 , the Defendant fled from Gahanna Police attempting to conduct a routine traffic stop on a black Ford Taurus. The Defendant fled from the Gahanna officer at a high rate of speed, in excess of 90 M.P.H., and during the pursuit he repeatedly disregarded multiple traffic li ghts and drove on the opposite side of the road way causing multiple motorists to leave the road way in order to avoid a collision. At the conclusion of the pursuit, the Defendant was taken into custody by Gahanna Police

. The plate on the Defendant’s car at the time of the arrest was stolen. An initial search of the Defendant’s vehicle found criminal tools ( i.e., electric saw and drill), stolen license plates, heroin, and drug paraphernalia ( i.e., glass pipes and syringes). A later search of the vehicle found an air conditioner part that included a serial number. The serial number was traced back to an air conditioner that was recently stolen in the Columbus area. Defendant’s Actions Constitute Disposal To put the Defendant’s actions at Roses into context , it is critical to review the Defendant’s activities before attempting to steal the air conditioner from Roses. P rior to the attempted theft at Roses, the Defendant sold a total of 24 air conditioners to A

- Z and New World as scrap metal. These sa les occurred over a 30 day period. There is no legiti mate explanation for the Defendan t’s sale of 24 air conditioner components as scrap metal over a 30 da y period. The only plausible explanation is that the Defendant has been engaged in the destruction, theft , and sale of air conditioners as scrap metal

. Case: 2:15-mj-00605-NMK Doc #: 11 Filed: 10/16/15 Page: 4 of 8 PAGEID #: 345 To evade detection and capture during this crime spree , the De fendant engaged in several additional illegal activities. To avoid detection, the Defendant stole several license plates and place d these on his vehicle to conceal his identity. To avoid capture, the Defendant, on two occasions, fled from the police. Both of th ese times the Defendant
fled from the police at high rates of speed and put the public in danger. Considering only the plain language of the prohibition (i.e., it is illegal in the course of maintaining, servicing, repairing, or disposing of an appliance to knowing vent HCFC into the environment) the Defendant disposed of the air conditioner unit at Roses. This is because, “in the course” of sawing the condenser on the air conditioner the Defendant vented the refrigerant in the air conditioner into the atmosphere. The de finition of d isposal in the Merriam

- Webster dictionary includes the act or process of systematic destruction. Combining the dictionary definition of dispos al with the venting prohibition at 40 C.F.R. § 82. 154(a) as it applies to this case , it is illegal in the course of “ destroying ” an air conditioner to knowingly vent HCFC in to the environment. This perfectly describes the actions of the Defendant on the rooftop of Roses on August 25, 2 015 . That is i n the course of destroying the air c onditioner at Roses , the Defendant ven ted HCFC into the environment. Testimony during the preliminary hearing established the Defendant’s destruction of the air conditioner cost Roses over $20,000 to repair/replacement the damage done the destroyed unit , including the cost replace the refrigerant which was vented by the Defendant.
L eading up to the attempted theft at Roses the Defendant had been engaged in a wide

- ranging scheme to steal air conditioners and sell them as scrap metal. When Case: 2:15-mj-00605-NMK Doc #: 11 Filed: 10/16/15 Page: 5 of 8 PAGEID #: 356 stealing an air conditioner it is routine to vent the refrigerant. After the refrigerant is vented, the air conditioner no longer works and is effect ively destroyed. This is especially true when the condenser or coil is damaged during the theft. So when the Defendant used an electric saw to cut the condenser of the air conditioner at Roses, the
Defendant destroyed the air conditioner. Clearly the Defendant was not attempting to maintain, service, or repair the air conditioner at Roses. This is in spite of the Defendant’s stated purpose of maintenance , which is also covered by the prohibition. Given that the Defendant was engaged in a n ongoing scheme to steal a nd sell air conditioners as scrap metal, when the Defendant cut the air conditioner’s condenser with a saw the Defendant was in the process of destroying, or disposing, of the air conditioner

. As mentioned above, d isposal is also defined in the regulations promulgated by
U.S. EPA at 40 C.F.R. § 82.152. The three m ethods of disposal detailed after the parenthetical s in the definition are considered the final step of disposal. In other words, final step of disposal is defined to include 1) dumping of a whole appliance, 2) dumping of appliance parts, and 3) reuse of appliance parts. But the definition is not limited to just the final step of disposal, but also includes “the process leading to” final disposal. See 40 C.F.R. § 82.152. Because of the inclusion of this prefatory phrase, the definition of disposal is muc h more expansive and includes more than just the final step of disposal. The purpose of the regulations is to reduce the amount of CFCs and HCFCs to the lowest achievable level during the service maintenance, repair, and disposal of appliances. Id

. The most critical step in the disposal process is the step in which the refrigerant in the appliance is removed. Because removal Case: 2:15-mj-00605-NMK Doc #: 11 Filed: 10/16/15 Page: 6 of 8 PAGEID #: 367 of the refrigerant is the most critical step, the definition of disposal rightfully covers the process in which the refriger ant is removed from the appliance. In this case, when the Defendant cut the condenser with an electric saw not only did he render the air conditioner inoperable and destroy it, the Defendant effectively removed the refrigerant from the air conditioner an d discharged it into the atmosphere. Therefore, under the regulatory definition, the Defendant committed the act of disposal wh en he cut the condenser of the air conditioner and removed the refrigerant from the air conditioner, releasing it into the atmos phere. On September 12, 2012, in the Middle District of Georgia, Alexander Morrissette (“Morrissette”) and Randall Scott Wimpey (“Wimpey”) were indicted for venting air conditioner units in the course of stealing the units to sell as scrap metal. See 3:12

- CR

37. Like the Defendant, Morrissette and Wimpey vented the refrigerant from the air conditioners during the disassembly process. In total, Morrissette and Wimpey vented, stole, and so ld as scrap metal approximately 20 air conditioner units. Wimpe y, Morrissette’s accomplice, was sentenced to 15 months of custody. Morrissette was sentenced to 78 months of custody. Mo rrissette appealed the sentence. On September 16, 2014, the appellate court affirmed Morrissette’s 78 month sentence of custody. Se e 579 Fed. Appx. 916 (Sep. 16, 2014). ( See atta che d , Attachment s A , B , C &
D. ) Case: 2:15-mj-00605-NMK Doc #: 11 Filed: 10/16/15 Page: 7 of 8 PAGEID #: 378 For the foregoing reason there is probable cause to believe that the actions of the Defendant as alleged in the Complain t and preliminary hearing constitute disposal. Specifically, as part of the attempted theft of an air conditioner from Roses Discount Store the Defendant knowingly vented HCFC into the environment in the course of disposing of the air conditioner. Respectfully submitted,
CARTER M. STEWART United States Attorney

s/J. Michael M arous J. MICHAEL MAROUS (0015322) Assistant United States Attorney 303 Marconi Boulevard, Suite 200 Columbus, Ohio 43215 Office: (614) 469

- 5715 Fax: (614) 469

- 5653 E

- mail: Mike.Marous@usdoj.gov

CERTIFICATE OF SERVICE I certify that a copy of the foregoing Memorandum Supporting Probable Cause was filed with the Court = s CM/ECF system this 16th day of October, 2015, which provides electronic service to Deborah L. Williams.

s/J. Michael Marous J. MICHAEL MAROUS (0015322) Assistant United States Attorney Case: 2:15-mj-00605-NMK Doc #: 11 Filed: 10/16/15 Page: 8 of 8 PAGEID #: 384 of 48 DOCUMENTS UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ALEXANDER

MORRISSETTE, Defendant-Appellant. No. 13-12078 Non-Argument Calendar
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

579 Fed. Appx. 916 ; 2014 U.S. App. LEXIS 17739

September 16, 2014, Decided
NOTICE: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.
PRIOR HISTORY: [**1] Appeal from the United States District Court for the Middle District of Georgia. D.C. Docket No. 3:12-cr-00037-CAR-CHW-1.
DISPOSITION: AFFIRMED.

COUNSEL: For United States of America, Plaintiff - Appellee: Michelle Lee Schieber, Danial Edward Bennett, Michael J. Moore, U.S. Attorney, U.S. Attorney's Office, Macon, GA. For Alexander Morrissette, Defendant - Appellant: Harvey Gee, Federal Defender's Office, Albany, GA; Martin J. Vogelbaum, Cynthia W. Roseberry, Federal Public Defender's Office, Macon, GA.
JUDGES: Before WILSON, ROSENBAUM, and FAY, Circuit Judges.
OPINION [*916] PER CURIAM: Alexander Morrissette appeals his 78-month imprisonment sentence for knowingly causing the release of a refrigerant into the environment. We affirm. [*917] I. BACKGROUND Morrissette stole aluminum-copper coils from 12 commercial air conditioning units at a pharmacy in Monroe, Georgia, on November 23, 2011. Thereafter, Morrissette's codefendant, Randall Wimpey, stole aluminum-copper coils from air conditioning units at another building in Monroe. Following his arrest, Wimpey informed law enforcement officers he had been working with Morrissette. Morrissette and Wimpey both admitted to officers they had vented Freon, a refrigerant, from the air conditioning units [**2] during the thefts. In September 2012, a federal grand jury charged Morrissette with three counts of knowingly causing the release of a class I and class II substance, a refrigerant, into the environment, in violation of 42 U.S.C. §§ 7671g(c)(1) and 7413(c)(1) . Morrissette pled guilty to Counts One and Three of the indictment, under a plea agreement, in exchange for the dismissal of Count Two. Pursuant to the Presentence Investigation Report ("PSI"), Morrissette had a base offense level of six under U.S.S.G. § 2Q1.3(a) . He received a six-level increase under § 2Q1.3(b)(1)(A) , because the offense resulted in a repetitive discharge, release, or emission of a pollutant into the environment. He received a four-level increase Page 1 Case: 2:15-mj-00605-NMK Doc #: 11-1 Filed: 10/16/15 Page: 1 of 4 PAGEID #: 39under § 2Q1.3(b)(4) , because the crime involved a

discharge without a permit. He also received a three-level decrease for acceptance of responsibility under § 3E1.1(a) and (b) . His total offense level was 13. He had a criminal history category of VI and a Sentencing Guidelines imprisonment range of 33 to 41 months. Morrissette objected to the six-level increase under § 2Q1.3(b)(1)(A) and the four-level increase under § 2Q1.3(b)(4)

. The district judge overruled Morrissette's objections and found Morrissette repeatedly had released refrigerant into the environment as a result of tearing up air [**3] conditioning units. Morrissette did not have a permit, and the judge rejected Morrissette's theory that the enhancement only applied to those who were defined as technicians under the Clean Air Act. The judge noted his main concerns were Morrissette's extensive criminal history and the replacement costs for the air conditioners. The judge recognized Morrissette needed medical care and had been stealing copper to provide for his children. Nevertheless, after considering the 18 U.S.C. § 3553(a) factors, the judge stated he was going to vary upward from the advisory Guidelines range. He found a sentence of 39 months each was appropriate for Counts One and Three and ordered the 39-month sentences to run consecutively, for an imprisonment sentence of 78 months. The judge also ordered restitution in the amount of $178,846.81. II. DISCUSSION A. Procedural Reasonableness On appeal, Morrissette argues his sentence is procedurally unreasonable, because the district judge (1) failed to explain the sentence, and (2) incorrectly calculated the Sentencing Guidelines range by applying the specific offense characteristics in U.S.S.G. § 2Q1.3(b)(1)(A) and § 2Q1.3(b)(4) . We review the reasonableness of a district judge's sentence through a two-step process using [**4] a deferential abuse-of-discretion standard of review. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007) . First, we look at whether the district judge committed any procedural error, such as "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous [*918] facts, or failing to adequately explain the chosen sentence--including an explanation for any deviation from the Guidelines range." Id. at 51, 128 S. Ct. at 597 . When considering the § 3553(a) factors, the district judge need not discuss each of them individually. United States v. Dean, 635 F.3d 1200, 1203-04 (11th Cir. 2011)

. "The district court has discretion to impose consecutive sentences to comply with the requirements of section 3553 ." United States v. Campa, 529 F.3d 980, 1012 (11th Cir. 2008) . When determining whether the sentences imposed are to be ordered to run concurrently or consecutively, the district judge "shall consider, as to each offense for which a term of imprisonment is being imposed, the factors set forth in section 3553(a) ." 18 U.S.C. § 3584(b)

. Section 2Q1.3(b)(1)(A) provides: "If the offense resulted in an ongoing, continuous, or repetitive discharge, release, or emission of a pollutant into the environment, increase [the base offense level] by 6 levels." U.S.S.G. § 2Q1.3(b)(1)(A)

. Application Note 4 of the Commentary to § 2Q1.3 adds: Depending upon the harm resulting from the emission, [**5] release or discharge, the quantity and nature of the substance or pollutant, the duration of the offense and the risk associated with the violation, a departure of up to two levels in either direction from that prescribed in these specific offense characteristics may be appropriate.
Id

. § 2Q1.3, cmt. n.4 . We have held that § 2Q1.3 "assumes actual environmental contamination if the text of § 2Q1.3(b)(1) itself is met." United States v. Perez, 366 F.3d 1178, 1183 (11th Cir. 2004) . Thus, the government does not have to prove actual environmental contamination for § 2Q1.3(b)(1) to apply. Id. at 1182-83

. Pursuant to § 2Q1.3(b)(4) , "If the offense involved a discharge without a permit or in violation of a permit, increase by 4 levels." U.S.S.G. § 2Q1.3(b)(4) . The pertinent commentary provides that § 2Q1.3(b)(4) applies "where the offense involved violation of a permit, or where there was a failure to obtain a permit when one was required." Id

. § 2Q1.3, cmt. n.7 . The commentary further states that, "[d]epending upon the nature and quantity of the substance involved and the risk associated with the offense, a departure of up to two levels in either Page 2 579 Fed. Appx. 916, *917; 2014 U.S. App. LEXIS 17739, **2 Case: 2:15-mj-00605-NMK Doc #: 11-1 Filed: 10/16/15 Page: 2 of 4 PAGEID #: 40direction may be warranted." Id

.

The Clean Air Act prohibits "any person, in the course of maintaining, servicing, repairing, or disposing of an appliance, to knowingly vent or otherwise knowingly release or dispose of any class [**6] I or class II substance used as a refrigerant in such appliance . . . in a manner which permits such substance to enter the environment." 42 U.S.C. § 7671g(c)(1) . Persons maintaining, servicing, repairing, or disposing of appliances containing refrigerants, who reasonably expect that their actions may release refrigerants from the appliances, must become certified technicians and must follow specific standards and requirements regarding the use and disposal of refrigerants. See 40 C.F.R. § 82.152 (defining "technician"); id

. § 82.156 (establishing required practices); id

. § 82.161 (establishing certification requirement). The purpose of the certification requirements for handling refrigerants is to "reduce emissions of class I and class II refrigerants and their substitutes to the lowest achievable level by maximizing the capture and recycling of such refrigerants during the service, maintenance, repair, and disposal of appliances." Id

. § 82.150(a)

. The district judge adequately explained the sentence of 39 months of imprisonment [*919] on Count One and 39 months of imprisonment on Count Three, to run consecutively to each other. The judge stated Morrissette had a substantial criminal history and expressed concern with Morrissette's prior robbery conviction [**7] and the way Morrissette had interacted with law enforcement. The judge also expressed concern with the amount of loss in this case. The judge specifically mentioned he had considered the history and characteristics of Morrissette, the need to deter future criminal conduct, and the need to protect the public, when deciding to vary upward. The district judge committed no procedural error in calculating the advisory Sentencing Guidelines range. Neither the Guidelines nor binding authority supports Morrissette's contention that § 2Q1.3(b)(1)(A) is not meant to cover emissions that are incidental to a theft of air conditioning components. By releasing a refrigerant into the environment without having the proper certification and without following the proper procedures, Morrissette violated the Clean Air Act, regardless of his underlying intent to steal copper. 42 U.S.C. § 7671g(c)(1) ; 40 C.F.R. §§ 82.150 to 82.169 . Morrissette's argument that the government had to prove actual harm to the environment is meritless, because we have held exactly the opposite. Perez, 366 F.3d at 1182-83 ("[T]he government does not have to prove actual environmental contamination for § 2Q1.2(b)(1) to apply. . . . "[T]he guideline . . . assumes actual environmental contamination if the text of § 2Q1.3(b)(1) itself is met."). Because his [**8] offenses resulted in a repetitive discharge of refrigerants, the six-level increase in § 2Q1.3(b)(1)(A) applies. In addition, the four-level increase in § 2Q1.3(b)(4) applies. Morrissette's argument that the Guidelines somehow apply only to technicians, as defined by the Clean Air Act, lacks merit. The Guidelines commentary specifically states that it applies, "where there was a failure to obtain a permit when one was required." Id

. § 2Q1.3, cmt. n.7 . Pursuant to the Clean Air Act, Morrissette was required to become a certified technician before disposing of appliances that reasonably could be expected to release refrigerants. 40 C.F.R. § 82.161 ; see also id

. § 82.152 (providing that the term disposal includes the "disassembly of any appliance for reuse of its component parts"). He did not obtain the proper certification. Accordingly, Morrissette's total sentence is procedurally reasonable. 1
1 Morrissette raises numerous additional arguments in his reply brief regarding procedural reasonableness. Because he did not raise those arguments in his initial brief, he has abandoned them. United States v. Magluta, 418 F.3d 1166, 1185-86 (11th Cir. 2005) ("[A]n appellant may not raise an issue for the first time in a reply brief."). B. Substantive Reasonableness Morrissette also argues on appeal that his 78-month sentence is [**9] substantively unreasonable, because it does not achieve the purposes of sentencing. Once we determine that a sentence is procedurally sound, we examine whether the sentence is substantively reasonable in light of the totality of the circumstances and the § 3553(a) factors. Gall, 552 U.S. at 51, 128 S. Ct. at 597

. The § 3553(a) factors to be considered by a sentencing judge include, among others: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need to provide the Page 3 579 Fed. Appx. 916, *918; 2014 U.S. App. LEXIS 17739, **5 Case: 2:15-mj-00605-NMK Doc #: 11-1 Filed: 10/16/15 Page: 3 of 4 PAGEID #: 41defendant with needed [*920] medical care or other

correctional treatment; (4) the need to protect the public from further crimes of the defendant; and (5) the applicable Sentencing Guidelines range. 18 U.S.C. § 3553(a) . A sentencing judge must also consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." 18 U.S.C. § 3553(a)(6)

. A sentence is substantively unreasonable if it "does not achieve the purposes of sentencing stated in § 3553(a) ." United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (citation and internal quotation marks omitted). In addition, a sentence may be substantively [**10] unreasonable if a district judge unjustifiably relied on any one § 3553(a) factor, failed to consider pertinent § 3553(a) factors, selected the sentence arbitrarily, or based the sentence on impermissible factors. Id. at 1191-92 . "The weight to be accorded any given § 3553(a) factor is a matter committed to the sound discretion of the district court." United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007) (citation and internal quotation marks omitted). The party challenging the sentence has the burden of establishing that the sentence is unreasonable based on the record and the § 3553(a) factors. Dean, 635 F.3d at 1203-04

. Morrissette first argues his sentence is substantively unreasonable, because his 78-month sentence is much greater than the time-served sentence of Daniel Arnot, a man sentenced in the Northern District of Georgia who purportedly was convicted of similar conduct. Morrissette has failed to establish Arnot has a similar criminal history. See 18 U.S.C. § 3553(a)(6) . In addition, the district judge considered all of the § 3553(a) factors, including mitigating evidence. Although the district judge placed a great deal of weight on Morrissette's criminal history, he had discretion to do so. Clay, 483 F.3d at 743

. Morrissette damaged numerous air conditioning units and caused a significant amount of loss. His criminal history is extensive, and none [**11] of his prior sentences have deterred him from committing crimes. Accordingly, under the totality of the circumstances and the § 3553(a) factors, Morrissette's 78-month sentence is substantively reasonable. AFFIRMED

. Page 4 579 Fed. Appx. 916, *919; 2014 U.S. App. LEXIS 17739, **9 Case: 2:15-mj-00605-NMK Doc #: 11-1 Filed: 10/16/15 Page: 4 of 4 PAGEID #: 42Case 3:12-cr-00037-CAR-CHW Document 60 Filed 04/22/13 Page 1 of 7

Case: 2:15-mj-00605-NMK Doc #: 11-2 Filed: 10/16/15 Page: 1 of 7 PAGEID #: 43Case 3:12-cr-00037-CAR-CHW Document 60 Filed 04/22/13 Page 2 of 7

Case: 2:15-mj-00605-NMK Doc #: 11-2 Filed: 10/16/15 Page: 2 of 7 PAGEID #: 44Case 3:12-cr-00037-CAR-CHW Document 60 Filed 04/22/13 Page 3 of 7

Case: 2:15-mj-00605-NMK Doc #: 11-2 Filed: 10/16/15 Page: 3 of 7 PAGEID #: 45Case 3:12-cr-00037-CAR-CHW Document 60 Filed 04/22/13 Page 4 of 7

Case: 2:15-mj-00605-NMK Doc #: 11-2 Filed: 10/16/15 Page: 4 of 7 PAGEID #: 46Case 3:12-cr-00037-CAR-CHW Document 60 Filed 04/22/13 Page 5 of 7

Case: 2:15-mj-00605-NMK Doc #: 11-2 Filed: 10/16/15 Page: 5 of 7 PAGEID #: 47Case 3:12-cr-00037-CAR-CHW Document 60 Filed 04/22/13 Page 6 of 7

Case: 2:15-mj-00605-NMK Doc #: 11-2 Filed: 10/16/15 Page: 6 of 7 PAGEID #: 48Case 3:12-cr-00037-CAR-CHW Document 60 Filed 04/22/13 Page 7 of 7

Case: 2:15-mj-00605-NMK Doc #: 11-2 Filed: 10/16/15 Page: 7 of 7 PAGEID #: 49Case 3:12-cr-00037-CAR-CHW Document 49 Filed 02/25/13 Page 1 of 6

Case: 2:15-mj-00605-NMK Doc #: 11-3 Filed: 10/16/15 Page: 1 of 6 PAGEID #: 50Case 3:12-cr-00037-CAR-CHW Document 49 Filed 02/25/13 Page 2 of 6

Case: 2:15-mj-00605-NMK Doc #: 11-3 Filed: 10/16/15 Page: 2 of 6 PAGEID #: 51Case 3:12-cr-00037-CAR-CHW Document 49 Filed 02/25/13 Page 3 of 6

Case: 2:15-mj-00605-NMK Doc #: 11-3 Filed: 10/16/15 Page: 3 of 6 PAGEID #: 52Case 3:12-cr-00037-CAR-CHW Document 49 Filed 02/25/13 Page 4 of 6

Case: 2:15-mj-00605-NMK Doc #: 11-3 Filed: 10/16/15 Page: 4 of 6 PAGEID #: 53Case 3:12-cr-00037-CAR-CHW Document 49 Filed 02/25/13 Page 5 of 6

Case: 2:15-mj-00605-NMK Doc #: 11-3 Filed: 10/16/15 Page: 5 of 6 PAGEID #: 54Case 3:12-cr-00037-CAR-CHW Document 49 Filed 02/25/13 Page 6 of 6

Case: 2:15-mj-00605-NMK Doc #: 11-3 Filed: 10/16/15 Page: 6 of 6 PAGEID #: 55Case 3:12-cr-00037-CAR-CHW Document 1 Filed 09/12/12 Page 1 of 3

Case: 2:15-mj-00605-NMK Doc #: 11-4 Filed: 10/16/15 Page: 1 of 3 PAGEID #: 56Case 3:12-cr-00037-CAR-CHW Document 1 Filed 09/12/12 Page 2 of 3

Case: 2:15-mj-00605-NMK Doc #: 11-4 Filed: 10/16/15 Page: 2 of 3 PAGEID #: 57Case 3:12-cr-00037-CAR-CHW Document 1 Filed 09/12/12 Page 3 of 3

Case: 2:15-mj-00605-NMK Doc #: 11-4 Filed: 10/16/15 Page: 3 of 3 PAGEID #: 58