NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0429n.06 No. 10-1273 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. WHITNEY ATKINSON, Defendan t-Appellant. ) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE UNITED STAT ES DIS TRICT C OU R T F OR TH E W E S TE R N DISTRICT OF MICHIG AN

O P I N I O N

BEFORE: McK

EAGU E and WHITE , Circuit Judges; Z OUHARY, Distr ict Judge. * P ER CURIAM . This is the second time ar o u nd for Def endant- Appellant Whit ney Atkinson’s appea l of his sentenc e on fede ral firea rm char g es. I n Aug ust 2007, Atkinson, who pled g uilty to two firea

rm charges , was sentenc ed to a total of 240 months based on a Sentencing Guidelines rang e of 262–327 m o n t h s . At kinson’s Guidelines rang e calc ulation was driven by a

car eer -off ender desig nation stemming from Atkinson’s two prior state co n v ictions that occur red close in time but wer e not direc tly rela ted. The state court sentenc ed Atkinson for both crimes during a sing le sentenc ing pr ocee ding. At the time of his 2007 fede ral sentenc ing, Amendment 709 to the Guidelines was pending

. Amendment 709 altere d the car eer -off ender deter

mination by providing that convictions sentenc ed

on the same day would not be trea ted as separ ate crimes when consi d er i n g the car eer offe nder
The Honora

ble J ack Z ouhary , Unit ed S t at es Di strict J udg e for the Norther n District of * Ohio, sitti ng by

desig nation.desig nation. USSG § 4A1.2(a )(2) , (3); USSG App. C, amend. 709 (2007). Amendment 709 went

into eff ect in November 2007, slightly more tha n two months afte r Atkinson was sentenc ed in fede ral court. The Amendment was not desig nated as retroa ctive. See United States v. Horn , 612 F.3d 524, 524 (6th Cir. 2010). Atkinson appea led the fe dera l sentence in September 2007, arg uing the district court er red in failing to consider the eff ect of the then-propose d Am en d m en t 7 0 9 when it imposed the 240- month sentenc e. I n Dec ember 2009, this Court rema nded the case for rese ntencing with instructions for the district court to consider th at Amendment 709 beca me eff ective shortly afte r sentenc ing. United States v. Atkinson , 354 F. App’ x 250, 253–54 (6th Cir. 2009). On rema nd, the district cou rt invited the parties to submit memoranda in advanc e of the

rese ntencing

. At the rese ntencing , the court considere d the arg uments raised in the memoranda , discussed the re asons for not a pply ing A mendment 709, and subseque ntly imposed the same 240- month sentenc e. Atkinson now claims the district court ref used to consider the eff

ect of Amendment 709, as this Court inst ructe d. Our revie w of the district court’s sentenc ing decision “is limit ed to deter mining whether the sentenc e is rea sonable under an abuse- of-discr etion standard.” United States v. Perez- Vasquez , 570 F.3d 692, 695 (6th Cir. 2009) (citing Gall v. United States , 552 U. S

. 3 8 , 4 6 (2 0 07)). “The

rea sonablene ss revie w is sp l i t into two parts: proce dural rea sonablene ss and substantive

rea sonablene ss.” United States v. Benson , 591 F.3d 491, 500 (6th Cir. 2010) (citing United States v. Collington , 461 F.3d 805, 808 ( 6th Cir. 2006)). The rese ntencing was proce durally rea sonable. “A sentenc e is proce durally inadequa te if the d is tr ict court fails to calc ulate proper ly the Guidelines rang e, trea ts the Guidelines as mandatory , fa il s
- 2 -to consider the 18 U.S.C. § 3553(a) fac tors, selec ts the sentenc e based upon clea rly err oneous fac ts,

or fails to adequately explain the chosen sentenc e.” United States v. Harmon , 607 F.3d 233, 238 (6th Cir. 2010). A party must make specific objections to purported proce dural err ors; if the proce dural objections are too vag ue, a plain err or standard applies to proce dural rea sonablene ss arg uments. See Harmon , 607 F.3d a t 237–38. Atkinson fa i l s to identify any specific proce dural err ors in his rese ntencing , and he acknow ledg es the district court did not miscalculate the Guidelines rang e under the law as it exis ted when he was sentenc ed. As evidenc ed by the rese ntencing colloquy , the district court did not trea t the Guidelines as mand at o ry . Nor did the court ref use to consider the policy behind the nonretroa ctive Amendment 709. Fur ther, the district court cons i d er ed the Section 3553(a) fac tors. Finally , the district court did not base the sentenc e upon clea rly err oneous fac ts or fail to adequately explain the s en t en ce . Whil e Atkinson may not like the district court’s explanation as to why the same 240-month sente nce w as imposed, there was no proc edura l error in the rese ntencing

. L ikewise, the rese ntencing was substantively rea sonable. Atkinson char acte rizes the district court’s statements during the rese ntencing colloquy as a “re fusal to exercise discretion , ” wh ich resulted “ in an unre asonable sentenc e,” but the tr anscr ipt of the rese ntencing shows otherwise. The district court considere d the rea soning and rationale behind Amend m en t 709 and contra sted it with the specific fac ts of Atkinson’s prior convictions

. T h e co u rt deter mined that g iving Atkinson the benef it of the then-propose d Amendment would simply be a matter of “exalting form over substance.” I n support of its decision, the court posed hy potheticals to counsel, provided

a short summary of the fac ts of Atkinson’s two prior convictions, and summarized the scena rio that led to Atkinson’s state court sentenc ing. Specifica lly , the court noted Atkinson committed two
- 3 -arme d robber ies a month apar t, was fortunate not to have been arr ested in the intervening month, and then was sentenc ed in a single hear ing for both c rimes as a matter of convenie nce and ef ficienc y . The d i s t rict court conclude d by stating: “B ut common sense tells me that even befor e November 1, two separ ate char g es, two separ ate v i ct i m s , two separ ate times, sentenc ing by convenie nce of the circ uit court at the same time, but two differ ent dockets means they can well be trea ted differ ently , and for g ood rea son.” Even if this Court “mig ht rea sonably have conclude d that a diffe rent sente nce w as appr opriate,” Gall , 552 U.S. at 51, the district c ourt expressed its reasons for considering , b u t r ejec ting the application of Amendment 709, and such consideration is sufficie nt to withstand rever sal. AF F IRMED

.

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