NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0567n.06 No. 12-3728 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. DAVI D A. KAT RENI CK, Defendan t-Appellant.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE N ORTHERN DI STRI CT OF OH I O O P I N I O N

Before: M OORE an d GRIF F IN, Circ uit Jud ges, and S ARG US, District Judge. * KA REN NELSO N MOORE, Circuit Judge. Def endant David Katre nick pleade d g uilty to two counts of being a felon in posse ssion of a firea rm, in violation of 18 U.S.C. § 922(g )(1)
. At sentenc ing, the district court varie d upwar ds from Katre nick’s Guidelines rang e of 57 to 71 months and imposed a se ntence of 110 months of imprisonment. On appea l, Katre nick asser ts that he did not make h i s g uilty plea knowing ly , voluntarily , and intelligently , in violation of Fe dera l Rule of Criminal Procedur e 11. Katre nick also challeng es the proce dural and substantive rea sonablene ss of his a bove-G uidelines sentenc e. Finding these arg uments to be meritless, we AF F IRM the district court’s judg ment of convic tion and imposit ion of a sente nce of 110 months of imprisonment.

The Honora

ble Edmund A. Sarg us, J r., United States District J udg e for the Southern District * of Ohio, sitting by

desig nation.No. 12-3728

United States v. Katrenick
I. The g overnme nt char g ed Katre nick with two counts of b ei n g a fe l on in possession of a firea rm under 18 U.S.C. § 922(g )(1)
. Be cause o f h i s extensive criminal history and his
corr esponding conce rn that he might be subject to enhanc ed penalties as an Armed Caree r Criminal (“A CC”) under 18 U.S.C. § 924(e) , Katre nick reque sted that th e d i s t ri ct court order a pre- plea prese ntence repor

t (“PSR”). R. 14 (De f. Mot. at 1) (Pag e I D #39). The district court order ed the reque sted pre- plea PSR , R. 15 (D
. Ct. Orde r at 2) (Pag e I D #47), which indicated that Katre nick would be sentenc ed as an ACC and, as such, would be subject to a fiftee n-y ear mandatory minimum sentenc e. Katre nick decided t o plead guilty at a c hang e of ple a hea

ring . R. 37 (Chang e of Plea Hr’g Tr.) (Pag e I D #233–57). At that hear ing, the district c ourt confirme d that Katre nick was chang ing his plea knowing ly , voluntarily , and intellige ntly
. Id . at 8–24 (Pag e I D #240–56). Wit h reg ard to the possible punishment Katre nick could fac e, the district court info rm ed him that “the penalty , mandatory minimum 15 y ea rs t o l i fe , $250,000 fine, or both, and up to five y ear s of supervised rele ase.” Id . at 12 (Pag e I D #244). The district court expanded on the ma ndatory minimum : The Court: [I ]n this case we have a preliminary desig nation that Mr. Katre nick is an arme d car eer

criminal? [The Governme nt] : That is corre ct . . . . The Court: Okay
. And Mr. Katre nick, ag ain, y ou’ve had the opportunity to discuss this with [ y our attorne y ,] Mr. S aff old? The De fenda

nt: Yes, sir.
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United States v. Katrenick
The Court: An d y ou understand that there is a mandatory minimum as a result of that? The De fenda

nt: Yes, sir. The Court: Okay
. And Mr. Saffold, are y ou satisfied profe ssionally that Mr. Katre nick under stands that ramification. Mr. S aff old: I am, Your Honor. L et m e i n d icate for the rec ord t hat what I ’ve told Mr. Katre nick is there still will be an analy sis done by the Court’s P ro b ati on Depa rtment to deter

mine whether he formally does qualify , but I ’ve indicated to him that based on his preple a/pre sentenc e repor t we did for purposes of criminal history , there was a suggestion that, in fac t, he would qualify , and he’s under the belief as he pleads today he may qualify , but cer tainly that’s something we will ask the Court to take up at the se ntencing date
. The Court: That’s exactly rig ht, Mr. Katre nick. At the time of sentenc i ng we’ ll review ev er y

t h i n g we have. We’ll take a look at the complete repor t, ag ain, y our criminal history , and I ’ll listen to both sides and make that final determination as to whether you qualify as an armed caree r criminal
. And I fully understand that y our plea today

is based on that assumption. Okay ? All rig ht. And talking about the repor t, if I do acc ept y our plea of g uilt today , that will start the prepa

ration of a prese ntence investiga tion repor t. You’ll have sufficie n t t ime to sit down with counsel and g o over it in detail. And if y ou think there are any err ors, chang es, or modifications which should be made, y ou’ll let Mr. S af fol d know. He’ ll bring that to our attention, and we will deal with those at t h e time of sentenc ing. Of co u rs e, h e’ll do his own leg al analy sis, as well as the g overnme nt. Do y ou understand tha t? The De fenda

nt: Yes, sir. Id
. at 13–14 (Pag e I D #245–46) (empha sis added)
. The d i s t ri ct court acc epted Katrenic k’s guilty plea. Id . at 23 (Pag e I D #255). Prior to sentenc ing, both parties filed motions reg arding Katre nick’s status as an ACC. The parties disputed whether Katre n i ck ’s 1986 burg lary and financ ial transac tion char g es should be
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United States v. Katrenick
counted a s final convictions for the purposes of

deeming Katre nick an ACC. Althoug h Katre nick
was found gu i l t y on both char g es, convictions wer e not enter ed beca use Katre nick qualified for Geor g ia’s “F irst Offe nder Act.” Under this Act, Katre nick’s convictions would not be enter ed if he completed f

ive y ear s of proba tion. Katrenic k did not complete proba tion, as he was convicted f or rape and ag g rava ted assault in 1990. Although Katre nick failed to complete probation succe ssfully , no convictions wer e enter ed for his 1986 burg lary an d financ ial transac tion char g es. Be cause no convictions wer e enter ed, the district court ultimately sided with Katre nick, removing the possibili ty that he would be subject to a fiftee n-y ear mandatory minimum as an ACC. T h e fi nal PSR was prepa red acc ording ly , resulting in a Guidelines rang e of 57 to 71 m onths of imprisonment and a statutory maxi mum of 120 months of imprisonm ent. At sentenc ing, Katre nick’s counsel arg ued for a downwar d vari a

n c e b a s e d on sever al fac tors. First, def ense c ounsel discussed t he support from family and fr iends who consider ed Ka trenick to be a dece nt person. R
. 4 2 (S en t ’g Hr’g Tr. at 5–6) (Pag e I D #300–01). Second, defe nse counsel noted that most of Katre nick’s convictions—and all of the ones involving violence—oc curr ed more than twenty y ear s befor e the instant case . Id
. at 6–10 (Pag e I D #301–0 5 ). Thus, acc ording to defe nse counsel, the PSR over- repr esente d Katre nick’s criminal h istory
. Third, defe nse counsel
ar gued that this was a case wher e firea rms wer e possessed for hunting, not for the further ance o f other crimes. Id
. at 10–12 (Pag e I D #305–07). F inally , defe nse counse l noted that nationally , the
aver ag e sentenc e for a

felon in possession of a f irea rm was f orty -six months of imprisonment. Id
. at 12 (Pag e I D #307).
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United States v. Katrenick
I n response , the g overnme nt soug h t an u pwar d varia nce to the maxi mum under the statute—ten y ear s of i mprisonment. The g overnme nt arg ued that Katrenick was not simply using the firearms for hunting; rather, Katrenic k was storing g uns for fr iends and ha d, on occa sion, sold firea rms. Id
. at 14 (Pag e I D #309). The g overnme nt also contende d that being a “likeable g uy ” was not g rounds for a varia

nce. Id
. at 14 (Pag e I D #309). Finall y , t h e go v er n m ent disag ree d that Katre nick was ref

ormed, noting that he violated his parole in 2002 and returne d to prison until 2007 and that in 2009 he was convicted of drug possession and possession of criminal tools. Id
. at 14–15 (Pag e I D #309–10). I n its revie w of the 18 U.S.C. § 3553(a) fac tors, the district court n o t ed that the PSR identified two fac tors that war rant an upwar d varia

nce: Katre nick’s criminal history and likelihood of rec idi v i s m . Id
. at 25 (Pag e I D #320). L ooking to the other §3553(a) fac tors, the district court highlig hted that Katr enick [d] id serve some l o n g t erms. A couple of criminal convictions that are violent, of course . Didn’t want to g o into the details. They ’re pretty nasty
. So we have the majority of the convictions occur ring in the 20’s. We h av e, o f course, the prese nt offe nse, 2010 conviction for drug possession, and we have an absenc e of convictions from 2002 to [20] 07 beca use he was in prison. This offe nse wa s committed while under community control. On the other hand, to his benef it, he establishes his own business, maintains sobriety for sever al y ear s. Ag ain, many g ood letters from family and fr iends who know him. Id
. 29 (Pag e I D #324). The district court continued that “just like ever y other case, there’s a push and pull involved.
. . . I ’ve g one over a lot of the bad and also talked about the g ood family support, y our own business, stay ed sober for some y ear s now.” Id
.

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United States v. Katrenick
The district court then stated that it understood Katre nick ’s ar g ument about hunting “but these wer e not just a rifle or two rifles y ou took in the woods an d d ec i d ed t o hunt. I mean y ou moved t hese things, t oo. Sold rifles. You j ust didn’t g o out and hunt. That bot hers me. Bothe rs
me y ou committed this offe nse while on probation.” Id at 29–30 (Pag e I D #324–25). Katre nick’s counsel replied that althoug h Katre nick had trade d a wea pon for another wea

pon and two wea

pons fo r an ATV, he did not “re ceive [] a dollar in exchang e for a wea pon.” Id
. at 3 0

– 3 1 (P age I D #32 5–26). The district court found this arg ument unavailing , stating that it was “not conce rned about whether he g ot actua l money for it as much as the wea pons wer en’t just used for hunting.” Id
. at 31 (Pag e I D #326). The district court imposed a sentenc e of 110 months of imprisonment, based on an upwar d varia

nce of five leve ls to an offe nse leve l of twenty -four under the Guidelines. II. Katre nick arg ues that he did not enter his plea knowing ly , voluntarily , and intelligently beca use “he did not understand the penalties to which he was subject.” Ap p el l an t Br
. at 18. I n particula r, Katre nick presse s that he enter ed his g uilty plea “un d er t h e impression, based on the initial, criminal history only , prese ntence repor t, and the judge ’s statements during the plea colloquy , that he would be an arme d ca re er cr i m i n al, and thus be subject to imprisonment for a mandatory
m i n i m u m fiftee n y ear s.” Id
. at 19. Be cause Katre nick raises this arg ument for the first tim e o n appea l, we re view for

plain err or. See U

nited States v. W

ebb , 403 F.3d 373, 378 ( 6th Cir. 2005). Kater nick’s arg ument is completely without merit , co n s i dering that the district court expressly left open the issue of whether Katre nick should be sentenc ed as an ACC and that all parties
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United States v. Katrenick
understood the same. R. 37 (Chang e of Plea Hr’g Tr. at 13–14) (Pag e I D #245–46). Fur thermore , Katre nick’s relianc e on Pitts v. United States is misguided beca use there we dealt with “af firmative misstatements o f t h e maxi mum possible sentenc e.” 763 F.2d 197, 201 (6th Cir. 1985). I n the prese nt case , there was no misstatement beca use the district court expli citly told Katre nick that “[a]t the time of sentenc ing” it would “listen to both sides and make that final deter mination as to whether y ou qualify as an armed car eer criminal.” R. 37 (Chang e of Plea Hr’g Tr. at 14) (Page I D #246). The district cour

t did exactly that: at sentenc ing it listened to both sides and found tha t Katre nick did not qualify as an ACC. Finding n o er ro r, much less plain err or, we aff irm the district court’s
acc eptanc e of K atre nick’s g uilty plea. III. Katre nick contends that his sentenc e is proce durally unrea sonable beca use the district court “did not rule on his reque st for a b el o w- Gu i d elines sentence or adequa tely explain the s ignif

icant upwar d varia

nce.” Appellant B r. at 9. We disag ree . We revie w the district court’s sentenc ing deter mination for proce dural rea sonablene ss under
a defe rential abuse- of-discr etion standard. Gall v. United S t a t es , 552 U.S. 38, 51 (2007). For proce dural re asonableness, we must “ensur e that the district court committed no signific ant proce dural err or, such as failing to calc ulate (or im p roperly calc ulating) the Guidelines rang e, trea ting the Guidelines as mandatory , failing to consider the § 3553(a) fac tors, selec ting a sentenc e based on clea

rly err oneous fac ts, or failing to adequately explain the chosen sentenc e—including an
ex p l an ati on for any deviation from the Guidelines rang e.” Id
. “The sentenc ing judge sho u l d s et
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United States v. Katrenick forth enough to satisfy the appellate court that he has considere d t h e p arties’ arg uments and has a
rea soned basis for ex erc ising his own leg al dec isionmaking a uthority .” Rita v. United States , 551 U.S. 338, 356 (2007). Howeve r, “[t] he appropr iateness of brevity or leng th, c oncisene ss or detail, when to wr ite, what to say , depends upon c ircumstance s.” Id
. I n short, the rec ord show s t h at t h e district court g ave serious consideration to Katre nick’s arg ument for a downwar d varia nce but decide d on an upwar d varia nce based on Katre nick’s criminal history , likelihood of rec idivism , and possession of wea pons, while on probation, for purposes other than hunting. Katre nick’s arg uments for a downwar d varia nce wer e far from complicated, and the district court adequately addre ssed them and then explained its reasons for imposing an aboveGuidelines sentenc e. R. 42 (Sent’g Hr’g Tr. at 25–31) (Pag e I D #320–26). There fore , Katre nick’s sentenc e is pro ce d u ra l l y rea sonable. To the extent that Katre nick contests the substantive
rea sonablene ss of his sentenc e, we reje ct his challeng e and hold that Katre ni ck ’s s entence of 110 months is s ubstantively

rea sonable. IV. For the fore g oi n g re asons, we AF F IRM the district court’s judgme nt of conviction and imposit ion of a sente nce of 110 months of imprisonment.

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