NOT RECOMMENDED FOR PUBLICATION

File Name: 16a0167n.06

No. 15-5373

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BRIAN BAKER,

Defendant-Appellant.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE EASTERN 

DISTRICT OF KENTUCKY

BEFORE: BOGGS and ROGERS, Circuit Judges, and BERG, District Judge.*

ROGERS, Circuit Judge. Brian Baker appeals his sentence for conspiring to make false 

statements while acquiring firearms, in violation of 18 U.S.C. § 371; making false statements

while acquiring firearms, in violation of 18 U.S.C. § 922(a)(6); disposing of a firearm to a felon,

in violation of 18 U.S.C. § 922(d)(1); and possessing an unregistered firearm, in violation of 26 

U.S.C. § 5861(d). R.181, at PageID# 547-48; R.144, at PageID# 430-38. Baker argues that the 

district court failed to apply a relevant sentencing reduction and improperly weighed the 

sentencing factors. Baker’s arguments lack merit, and the district court did not abuse its

discretion in sentencing Baker to seventy months in prison.

First, Baker’s sentence is not procedurally unreasonable. He argues that his sentence is 

procedurally unreasonable because the district court did not apply U.S.S.G. § 2X1.1(b)(2), which 

provides that “[i]f a conspiracy, decrease by 3 levels, unless the defendant or a co-conspirator 

 

* The Honorable Judge Terrence Berg, United States District Judge for the Eastern District of Michigan, sitting by 

designation.
No. 15-5373, United States of America v. Brian Baker

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completed all the acts the conspirators believed necessary on their part for the successful 

completion of the substantive offense . . . .” Baker’s Br. at 12-13. Baker agrees that the base 

offense level was initially properly set at 20 pursuant to U.S.S.G. § 2X1.1 (addressing 

conspiracies not covered by a specific offense Guideline), which in turn refers to U.S.S.G. 

§ 2K2.1(a)(4)(B) (addressing prohibited transactions involving firearms or ammunition). 

Baker’s Br. at 13. Contrary to his argument, U.S.S.G. § 2X1.1(b)(2) does not permit a threelevel reduction in his case. This is because his pleading guilty to “making false statements while 

acquiring firearms” in violation of § 922(a)(6) serves as an admission that he completed all acts 

necessary for the successful completion of the substantive offense underlying his conspiracy

conviction. Contrary to Baker’s statements to the district court and in his brief on appeal, 

Baker’s Br. at 11, the indictment to which he pleaded guilty explicitly includes the CMMG 

short-barreled rifle in both the § 371 conspiracy charge (Count 1) and the § 922(a)(6) substantive 

charge (Count 5).

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 R.144, at PageID# 432, 435 (Second Superseding Indictment, Counts 1 and 

5); R.181, at PageID# 547 (pleading guilty to, inter alia, Counts 1 and 5 of the Second 

Superseding Indictment).

Second, Baker’s arguments that his sentence is substantively unreasonable are not 

sufficient to overcome the presumption of reasonableness afforded to his bottom-of-the-

 

1 As pointed out by the parties, Baker’s Br. at 12, Government’s Br. at 4, the district court appeared to have accepted 

Baker’s statement that the CMMG short-barreled rifle was not included in the § 922(a)(6) charge, notwithstanding 

that the indictment explicitly includes the CMMG short-barreled rifle in Count 5. See R.257, at PageID# 1068. 

However, the district court’s error affected only its calculation as to whether the application of U.S.S.G. 

§ 2K2.1(a)(4)(B) could be justified based on the § 922(a)(6) charge. The error did not affect the district court’s 

correct conclusion that the § 371 conspiracy charge alone was sufficient to justify U.S.S.G. § 2K2.1(a)(4)(B)’s base 

level of 20. Moreover, any error that the district court committed was harmless. When reviewing sentencing 

determinations, “harmless error may be established where the government is able to prove that none of the 

defendant’s substantial rights have been affected by the error . . . [and where] the appellate court can determine from 

the record that the same sentence would be imposed on remand.” United States v. Gillis, 592 F.3d 696, 699 (6th Cir. 

2009) (internal quotation marks omitted). Here, there is no question that the same sentence would be imposed on 

remand because the record clearly shows that both the § 371 and § 922(a)(6) charges to which Baker pleaded guilty

include the CMMG short-barreled rifle and consequently that he is not entitled to a three-level reduction under 

U.S.S.G. § 2X1.1(b)(2); therefore, Baker’s total offense level would remain at 25. See R.257, at PageID# 1069.
No. 15-5373, United States of America v. Brian Baker

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Guidelines-range sentence. Although within-Guidelines sentences are presumptively reasonable, 

United States v. Vonner, 516 F.3d 382, 389-90 (6th Cir. 2008) (en banc), such sentences may 

nonetheless be substantively unreasonable if the district court “selects a sentence arbitrarily, 

bases the sentence on impermissible factors, fails to consider relevant sentencing factors, or 

gives an unreasonable amount of weight to any pertinent factor,” United States v. Conatser, 

514 F.3d 508, 520 (6th Cir. 2008) (citation omitted). In arguing that his sentence was

unreasonable, Baker relies on the fact that one of his co-conspirators received a lower sentence,

and contends that the district court failed to consider the close familial relationship between him 

and his co-conspirator, that Baker did not engage in criminal activity for pecuniary gain, that one 

of the Government’s statements biased the district court against him, that the district court

improperly considered his criminal history, and that U.S.S.G. § 2K2.1(b)(5)’s four-level

“trafficking of firearms” enhancement resulted in double punishment. 

Baker’s arguments are unavailing. District courts are not required to consider sentence 

disparities with respect to co-defendants, United States v. Walls, 546 F.3d 728, 737 n.3 (6th Cir. 

2008) (citation omitted), and Baker’s argument that the district court abused its discretion by 

imposing a longer sentence than that which his co-conspirator received therefore lacks merit. 

Next, contrary to Baker’s claims, the district court did consider his arguments for a downward 

variance due to the lack of pecuniary motivation for his crimes and his familial relationship with 

his co-conspirator. R.257, at PageID# 1087, 1094-95. The district court carefully weighed the 

arguments made by Baker and the Government, but ultimately rejected Baker’s view because 

“[p]roviding guns to felons no matter what the relationship is troubling.” R.257, at PageID# at 

1087. Arguments that “ultimately boil[] down to an assertion that the district court should have 

balanced the § 3553(a) factors differently” are beyond the scope of our appellate review. United 
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States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008) (citing United States v. Ely, 486 F.3d 399, 

404 (6th Cir. 2006)). While Baker may not agree with it, the district court’s conclusion was not

an unreasonable balancing of the § 3553(a) factors. Further, Baker’s claim that the 

Government’s comparison of him to the Sandy Hook Elementary School shooter biased the 

district court is unfounded; there is nothing in the record that suggests that the Government’s

statements affected the district court’s decision in any way. See R.257, at PageID# 1091.

Additionally, Baker’s argument that the district court improperly included his 1999 DUI 

conviction in his criminal history “in a way that grouped him with defendants who have two 

prior felony convictions,” Baker’s Br. at 16-17, is confusing because the Presentence Report 

assigned zero points for the DUI conviction. R.251, at 950 ¶ 31. Moreover, while the district 

court did not minimize the seriousness of DUI convictions, the district court stated that it did not 

view the DUI conviction as constituting “significant criminal history” because DUIs “can be 

traced to substance abuse.” R.257, at PageID# 1096-97. Finally, Baker’s argument regarding 

U.S.S.G. § 2K2.1(b)(5) fails. He admits that U.S.S.G. § 2K2.1(b)(5) applies to his case, Baker’s 

Br. at 16; R.257, at PageID# 1033, but nonetheless contends that the district court should have 

used 18 U.S.C. § 3553(a) to address the “unintended double punishment” he claims he received 

due to the application of U.S.S.G. § 2K2.1(b)(5) in addition to U.S.S.G. § 2K2.1(a)(6) and 

U.S.S.G. § 2K2.1(b)(1)(B). See Baker’s Br. at 16. It was not unreasonable for the district court 

to refuse a downward variance when U.S.S.G. § 2K2.1(b)(5) plainly applies to his case. Baker’s 

argument is nothing more than a contention that the district court should have weighed the 

§ 3553(a) factors differently, and therefore lacks merit.

For the foregoing reasons, the sentence imposed by the district court is affirmed.