NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0726n.06 No. 09-3821 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. GARY T. HOH

N, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE NORTHE RN DI STRI CT OF OHI O

Before: NORRIS, S UTTON, and GRIF F IN, Circ uit Jud ges.

P ER CURIAM . Gar

y T. Hohn appea ls his 151-month sentenc e imposed by the district court

on rema nd for r esente ncing . For

the re asons that follow, we aff irm Hohn’s sentenc e. I n 2003, as a result of an investigation into the Gre en reg ion of the Outlaw Motorcycle Club (OMC), a fede ral g rand jury returne d a forty -count indictment ag ainst Hohn, a member and former presiden t of the OMC’s Day ton, Ohio, chapte r, along with thirty -seve n co-de fenda nts. After a leng thy jury trial, Hohn was convicted of rac ketee ring in violation of 1 8 U.S.C. § 1962(c) , conspirac y to eng ag e in rac ketee ring in violation of 18 U.S.C. § 1962(d), conspirac y to distribute and possess with intent to distribute narc otics in violation of 21 U.S.C. §§ 841(a) (1) and 846, conspirac y to use or car

ry firea rms during and in relation to drug t ra ff i ck i n g cr i m es or crimes of violence in violation of 18 U.S.C. § 924(o), distribution of and possession with intent t o d i s t ri b u te L SD in violation of 21 U.S.C. § 841(a) (1), and use of ex tortionate m eans to collect an extension of credit in violation of 18 U.S.C. § 894. At sentenc ing, the district court g rante d Hohn a four- level reduc tion based on his phy sical condition, which included being a dou b le amputee and suffe ring from suchNo. 09-3821 - 2 - ailments as car diomy opathy , hy perte nsion, cong estive hear t failure , periphe ral vascula r disease, and

co ro n ar y arte ry disease. The district court ultimately sentenc ed Hohn to a total of 181 months o f imprisonment. On direc t appea l, we af fi rm ed Hohn’s convictions, but vacated his sentenc e and

rema nded for rese ntencing , holding that the district court err ed, under United States v. Booke r , 543 U.S. 220 (2005), in a

pply ing the sentenc ing g uidelines as mandatory and in imposing a mandatory and conse cutive sente nce f or the fir ear

ms conspirac y

conviction. On rema nd, Hohn filed a motion for a downwar d depar ture pursuant to USSG § 5H1.4, arguing that his extraordinary phy sical impairments justified a downwar d depar ture and reque sting that the district court sentenc e him to home detention. Hohn asser ted that his health had deter iorated further since his incar cer ation, as he had develope d ty pe 2 diabetes and one of his kidney s had failed. At rese ntencing , the district court acknow ledg ed that Hohn “suff ers from serious health conditions, some of which pr edate d his arre st,” but declined to “ g o bey ond the four le vels . . . alre ady g rante d for his health rea sons,” noting that “[h] e still , in my opinion, is som ew hat of a risk to the community .” Taking into acc ount the four- level depar ture, the district court deter mined that Hohn had a total offe nse level of 32 and a criminal history cate g ory of I , resulting in a g uidelines rang e of 121 to 151 months of imprisonment. The district co u rt s entenc ed Hohn to 151 months on eac h count, to be ser

ved conc urre ntly

. This timely appea l followed. Ho h n co n t ends that the district court misapplied USSG § 5H1.4, that his sentence is procedur ally unrea sonable be cause the district court fa iled to addre ss the relative eff

iciencie s and cos ts of hom e incarce ration as opposed t o imprisonment, and that his
sentenc e is substantively

unrea sonable in lig ht of his present phy sical condition. Hohn moved for a downwar d depar ture pursuant t o USSG § 5H1.4, which provides in rele vant par

t:No. 09-3821 - 3 - Phy s i ca l condition or appea ranc e, including phy sique, is not ordinarily rele vant in d etermining whether a depar ture may be war

rante d. Howeve r, an extraordinary p h y s ical impairment may be a rea son to depar t downwar d; e.g ., in the case o f a seriously infirm d ef

endant, home detention may be as eff icient as, and less costly than, imprisonment. USSG § 5H1.4 (2008 ed.). To the extent that Hohn argues that the district court should have g rante d

a depar ture under USSG § 5H1.4 g rea ter than four levels, we lack jurisdiction to consider the deg ree of the district cour

t’s depar ture. See U

nited States v. Curry , 536 F.3d 571, 573 ( 6th Cir. 2008). Hohn contends that the di strict court failed t o addre ss whether “home detention may be as eff icient, and less costly than, imprisonment,” USSG § 5 H 1

. 4 , a n d that we there fore have jurisdiction
to revie w his sentenc e beca use it “wa s imposed as a result o f an i n co rre ct application of the
sentenc ing g uidelines,” 18 U.S.C. § 3742(a) (2). Be cause Hohn did not object at rese ntencing to the distr i ct co u rt’s failure to addre ss the relative eff iciencie s and costs of home incar cer ation and imprisonment, we revie w for plain err or. See United States v. Simmons , 587 F.3d 348, 360 (6th Cir. 2009). I n support of his argument that the district court misapplied the sentenc ing g uidelines, Hohn relies on United States v. B o s t i c , 371 F.3d 865 (6th Cir. 2004), in which we stated that USSG § 5H1.4 “re quire[s] the district cou rt t o co n s ider the rela tive costs and eff

iciency of home confine ment and imprisonment.” Id

. at 875. At rese ntencing , Hohn mere ly asser ted that he would be depende nt on Medica id and Medica re for his healthca

re if confine d at home; he offe red no other evidenc e re gar ding the eff iciencie s and costs of home confine ment. Given that the district court specific ally considere d whether the Bur eau of Prisons could acc ommodate Hohn’s impairments and

wa s p re sented with scant evidenc e reg arding home confine ment, the district court did not err, l et alone plainly err , in its application of USSG § 5H1.4. See United States v. Berro , 348 F. App’x 98, 101 (6th Cir. 2009), cert. de nied , 130 S. Ct . 1113 (2010).No. 09-3821 - 4 - Hohn also contends that his sentenc e is proce durally and substantively unrea sonable. We revie w the district c ourt’s sentenc ing deter mination f

or proce dural and substantive rea sonablene ss under a defe rential abuse- of-discr etion standard. United States v. Battaglia , 624 F.3d 348, 350 (6th Cir. 2010). We “must first ensure that the district court committed no signific ant proce dural err or, such

as failing t o calculate (or improperly calc ulating) the Guidelines rang e, treating the Guidelines as mandatory , failing to consider the [18 U.S.C.] § 3553(a) fac tors, sel e cting a sentenc e based on clea rly

err oneous fac ts, or failing to adequately explain the chosen sentenc e.” Gall v. United States , 552 U.S. 38, 51 (2007). Hohn argues that his sentenc e is proce durally unrea sonable beca use the district
court failed t o ad d re s s the rela tive eff iciencie s and costs of home confine ment as opposed to imprisonment. Ex cept for h i s assertion that he would be dependent on Medica id and Medicare if confine d at h o m e, Ho h n did not make any specific arguments or prese nt any evidenc e in his
sentenc ing memorandum or motion for d o wnward depar ture or at the rese ntencing hear ings reg arding the eff

iciencie s and costs of home confine ment. Nor did Hohn make any objection to the district court’s failure to addre ss the rela tive eff iciencie s and costs. Acc ording ly , we revie w for plain

err or. See United States v. Vonner , 516 F.3d 382, 386 (6th Cir. 2008) (en banc) ; Bostic , 371 F.3d
at 872-73. At re sentenc ing, the district court ac knowledg ed Hohn’ s serious health conditions, but noted that some of his conditions predated h i s ar re s t an d stated that “[h] e still , in my opinion, is somewhat of a risk to the community .” The district court satisfied its obligations by addre ssing the arguments prese nted by Hohn and explaining its rea sons for declining to g o bey ond a fo u r- l ev el downwar d depar

ture for health re asons. See R ita v. United States , 551 U.S. 338, 358 (2007). “A sentenc e may be considere d substantively unrea sonable when the district court selec ts a sentenc e arbitra

rily , bases the sentenc e on impermissible fac tors, fails to c o n s id e r r e le v a nt s e nte n cingNo. 09-3821 - 5 - fac tors, or g iv es an u n re asonable amount of weig ht to any pertinent fac tor.” United States v. Conatser , 514 F.3d 508, 520 (6th Cir. 2008). We apply a rebutta b l e p re s u m ption of substantive

rea sonablene ss to Hohn’s within-guidelines sentenc e. United States v. Bolds , 511 F.3d 568, 581 (6th Cir. 2007). Hohn has failed to rebut t h at presumption. Acc ording to Hohn, his sentenc e is substantively unrea sonable in light of his exceptional health issues. Ag ain, the district court considere d Hohn’s serious health conditions and g rante d a four- level downwar d depar ture based on his phy sical impairments. “The mere fac t that [Hohn] desired a more lenient sentenc e, without more, is insufficient to justify our di sturbing the rea soned j udg ment of t he district cour t.” United St ates v. Trejo-Martinez , 481 F.3d 409, 413 ( 6th Cir. 2007). For the fore g oing r easons, we aff irm Hohn’s 151-month sentenc e.