NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0412n.06 No. 12-5693 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. J AMES BRANDO N STEWART, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF TEN

NESSEE

BEF ORE: COL E and McKEAGUE, Circ uit J udg es; Z OUHARY, D istrict J udg e. *
PER C URIAM. J ames B randon Stewa rt appe als his sentence
. Stewart pled guilty to distributing methamphetamine, in violation of 21 U.S.C. § 841(a) (1), and being a felon in posse ssion of a fire arm, in violation of 18 U.S.C. § 922(g ). The district c ourt sentenc ed him to concur

rent prison terms of 120 months and 151 months, respe ctively
. We vacated the sentenc e and rema

nded for rese ntencing beca use the 151-month sentenc e for the firearm conviction was g reater than the statutory maxi mum sentenc e of 120 months. On rema nd, afte r
rec og nizi ng that it had i n t en d ed to impose the 151-month sentenc e for the methamphetamine conviction and the 120-month sentenc e for the firea rm conviction, the district court deter mined that, beca use Stewart was a car eer offe nder, his total offe nse level was 29 and his criminal histor y

The Honora

ble J ack Z ouhary , United States District J udg e for the Norther n District of Ohio, * sitti ngby designation.No. 12-5693

United States v. Stewart cate g ory was VI , resulting in a guidelines rang e of 151 to 188 months of imprisonment. The court sentenc ed Stewar

t to concurr ent prison terms of 151 months for the methamphetamine c onviction and 120 months for the f

irea rm conviction. On appea l, Stewart argues that his sentenc e is substantively u n r e a sonable beca

use it is g reater than nece ssary to comply with the purposes of sentenc ing. He asser ts that the district court should have va ried downw ard f

rom the guidelines rang e and not se ntence d him as a ca ree r off ender
. We revie w the substantive rea sonablene ss of Stewart’s sentenc e for abuse of discretion. See Gall v. United States , 552 U.S. 38, 51 (2007). “F or a sentenc e to be substantively rea sonable, it must be proportionate to the seriousness of the circ umstances of the offe nse and offe nder, and sufficie nt but not g rea

ter than nece ssary , to comply with the purposes of [18 U.S.C.] § 3553(a) .” United States

v. Vowell , 516 F.3d 503, 512 (6th Cir. 2008) (interna l quotation marks omitted). “A sentenc e may be substantively unrea sonable if the district court selec ts the sentenc e arbitra rily , bases the sentenc e
on impermissible fac tors, fails to consider pert i n en t § 3553(a) fac tors or g ives an unrea sonable
am o u n t of weig ht to any pertinent fac tor.” Id. at 510 (interna l quotation marks and alterat i o n s omitted). We apply a rebuttable presumption of substantive rea sonablene ss to a within-guidelines sentenc e. United States v. Vonne r , 516 F.3d 382, 389 ( 6th Cir. 2008) (en ba nc). Stewart fails to rebut the presumption t h at h i s within-guidelines sentenc e is substantively
rea sonable. Be fore imposing the senten ce , the district court discussed the rele vant sentenc ing fac tors, including the seriousness of t h e o ff en s e, Stewart’s considera ble criminal history , and the need to promote respe ct for the law, provide deter renc e, and protec t the public. There is nothing in the rec ord to sug g est that the district court selec ted t h e s en tence arbitra rily , considere d an -2-No. 12-5693

United States v. Stewart impermissible factor , or g ave unr easona ble weight to any

fac tor. Fur

ther, Stewart has set forth no basis to c onclude that the district c ourt acte d unrea sonably by ref using to va

ry downwar d from the
car eer offe nder guidelines. Acc ording ly , we a ffirm.

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