NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0029n.06 Nos. 11-6541/6542 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. LASHAWN BOO KER, (No. 11-6541) ; DESHAWN HARBI SON, aka D eshawn Booke r, (No. 11- 6542), Def endants-A

ppellants. ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF TEN

NESSEE

BEF ORE: MARTI

N and ROGERS, Circuit J udg es; TARNOW, District J udg e. *

PER CURI AM. In this consolidated criminal appea l, L as h awn Booke r and Desha wn Har bison, a.k.a. Desha

wn Booke r, appea l the district court’s respe ctive sentenc es of forty -eight and 112 months of imprisonment. Booke r and Har

bison eac h pleade d guilty to conspirac y to distribute coca ine base, in violation of 21 U.S.C. §§ 841(a) (1) and 846. The district court deter mined that Bo o k er ’s total offe nse level was twenty -three and that her criminal history cate g ory was I , resulting in an advisory sentenc ing guidelines rang e of forty -six to fifty -seve n months of imprisonment. The court sentenc ed Booke r to forty-eight months of imprisonment. The court deter mined that Har

bison’s total offe nse

The Honora

ble Arthur J

. Tarnow , Senior Un it e d St a tes District J udg e for the Easter n District * of Michig an, sitting by

desig nation.Nos. 11-6541/11-6542, United States v. Book er/Harbison
l ev el was twenty -five and that his criminal history cate g ory was V, resulting in an advisory sentenc ing guidelines rang e of 100 to 125 months of imprisonment. The district court sentenc ed Har bison to 112 mont hs of imprisonment. On appea l, Booke r argues that her sentenc e was rende red unrea sonable by the district court’s denial of her reque st for either a downwar d depar ture under USSG § 5H1.6, or a downwar d varia nce
on the basis that her incar cer ation would impose hardship on her children. Har bison argues that his sentenc e is substantively unrea sonable beca use the district cour t p l ace d undue emphasis on his criminal history , which consisted lar g ely of drivingviolations. “A district court’s senten cing deter mination is revie wed under a defe rential abuse- ofdiscretion standard for rea sonablene ss, which has both a proce dural and a substantive component.” United States v. O’Ge orgia , 569 F.3d 281, 287 (6th Cir. 2009) (interna l quotation marks omitted). “A sentenc e may be substantively unrea sonable if the district c ourt selec ts the sentenc e arbitra rily , bases the sentenc e on impermissible fac tors, fails to consider pertinent [18 U.S.C.] § 3553(a) fac tors or gives an unrea sonable amount of weight to any pertinent factor

. ” Un i ted States v. Vowell , 516 F.3d 503, 510 (6th Cir. 2008) (i n t er n al quotation marks and alterations omitted). We apply a rebuttable presumption of substantive rea sonablene ss to a within-g uidelines sentenc e. United States

v. Vonner , 516 F.3d 382, 389 (6th Cir. 2008) (en banc)

. We will not revie w a district court’s ref usal to grant a downwar d depar ture unless the rec ord ref

lects that the court wa s not awar e of or did not understand its discretion to make such a depar ture. United States v. Mitchell , 681 F.3d 867, 880 (6th Cir. 2012).
-2-Nos. 11-6541/11-6542, United States v. Book er/Harbison During the sentenc ing hear ing, the district court acknowledg ed Booke r’s reque st for a downwar d depar

ture under § 5H1.6 on the basis that it would cause hardship to her family

. The court expli citly rec og nized its discretion to g rant such a reque st. Consequently , the district court’s d ecision to deny a downwar d depar ture is not revie wable. In addition, Booke r’s sentenc e is substantively rea sonable beca use it is based on rele vant sentenc ing fac tors, including her likelihood to rec idivate, the serious nature of her crime, and the need for g ener al and specific deter renc e. There is nothing in the rec ord to sug g est that the district court selec ted Booke r’s sentenc e arbitra rily , failed to consider a

pertinent sente ncingfac tor, or g ave a n unrea sonable amount of weig ht to any fac tor. Har bison’s sentenc e is also s ub s t an t i vely rea sonable. Be fore imposing the sentenc e, the district court discussed the serious nature of Har b ison’s crime, the need for g ener al and specific deter renc e, and the fac t t h at Ha rb ison’s criminal history was signific ant. Har bison’s previous convictions included ch ar g es involving wea pons and phy sical violence. His driving convictions

wer e far more serious t h an just routine driving offe nses. The district court did not place undue weig ht on Har

bison’s cri m i n al history

. Har bison’s argument to the contra ry is insufficient to

overc ome the pre sumption t hat his within-guide lines sentence was substantively rea sonable. We affir m the district court’s judg ments.

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