NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 13a0688n.06 No. 12-6168 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,
v. J ACQUEL EN CHRI STI

NE KEL L Y, aka J acque ly n Kelly , aka Jackie C. Ande rson, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED ST ATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF TENNESSEE

Be fore : MOORE, KETHL EDGE, a nd STRANCH, Circuit J udg es.

KETHL EDGE, Circuit J udg e. J acque len Kelly appea ls her sentenc e for pharma cy robber y in violation o f 18 U.S.C. § 2118(a)

. Kelly arg ues that the district court’s upwar d varia nce was proce durally

and substantively

unrea sonable. We re

ject her arg uments and af

firm. I

. Be g inning in April 2011, Kelly robbed or attempted to rob 14 pharma cies to obtain Schedule I I controlled substances. Ty pically , Kelly would g ive the pharma cist a note demanding specif i c controlled substances and either show the pharma cist a rea listi c BB g un or ensure that the wea pon

was visible. After rec eiving the controlled substances, Kelly would flee in a car driven by a coconspirator

.No. 12-6168

United States v. Kelly Kelly was appre hended in J uly 2011 and pled g uilty to one count of pharma cy robber y . Her Guidelines rang e was 46 to 57 months. At sentenc ing, the district court deter mined that sever al fac ts weig hed in fa vor of a

n upwar d varia

nce unde r 18 U.S.C. § 3553(a). Kelly robbed or attempted to rob 14 pharma cies, but her Guidelines rang e ref lected only t h e s i n gl e robbery to which she pled g uilty

. The district court noted that eac h robber y “amounts to a separ ate harm or a separ ate p o s s i b i lity of harm[,] ” and that one of the purposes of § 3553(a) “wa s to empower the C o u rt t o impose

. . . the appropr iate sentenc e” based on “the totality of the conduct” rathe r than “how many counts a person pleads to.” I n weig hing the totality of Kelly ’s conduct, the district court also considere d that Kelly ’s use of a simulated g un and a g etawa y driver incre ased the risk that someone responding to the robber

y would be injured. I n add i t i o n , Ke lly robbed or attempted to rob more pharma cies than any of her codef endants. Thus, the district court considere d an upwar d varia nce to ref lect Kelly ’s “g rea ter deg ree of culpability

. . . and also to ref lect that the amount of loss suffe red by her victims is g rea ter than all the others.” For all of these rea sons, the district court varie d upwar d and imposed a se ntence of 98 months’ imprisonment. This appeal followe d. I I

. We revie w Kelly ’s sentenc e for an abuse of discretion. United States v. Castil la-Lugo , 699 F. 3 d 454, 459 (6th Cir. 2012). Kelly ’s primary arg ument is that her sentenc e was subst an t i v el y

unrea sonable beca

use the district court did not g ive enoug h weig ht to the “nee d to avoid unwar rante d sentenc e disparities” under 18 U.S.C. § 3553(a) (6). S h e contends that her sentenc e cre ated an

unwar rante d disparity beca

use it was 72% above the top of her Guidelines rang e, while the median upwar d varia

nce for robber

y sentenc es in 2011 was only 48.2%. But Kelly has not show n that her

-2-No. 12-6168

United States v. Kelly sentenc e actua lly cre ated an unwar rante d dispari t y . S ec tion 3553(a) (6) cautions district courts to avoid sentenc ing disparities among defe ndants with “similar records” who are “guilty of simil ar conduct.” Kelly has not arg ued that her rec ord and conduct are simil ar to defe ndants who rec eived a 48% upw ard va

rianc e ra ther than a

72% one. Moreove r, the rec ord in this case supports the disparity betwee n Kelly ’s varia nce and the median varia

nce. Kell y robbed or attempted to rob 14 pharma cies, but only one robber y was ref lecte d in her Guidelines rang e. And Kelly incre ased the risk that someone responding to the robber y would be injured when she encour ag ed the victims to believe she had a gun and whe n she fled the robber ies in a g etawa y car . Thus, the district court re asonably deter mined that an upward varia nce w as nec essar

y to capture the totality

of Ke lly ’s conduc t. Finally , the district c ourt’s sentenc e re flec ts a rea sonable ba lance of the § 3553(a ) fa ctors. The district court car efully weig hed the nature and circ umstances of Kelly ’s crimes. See 18 U.S.C. § 3 5 5 3 (a )( 1 ). For the rea sons descr ibed above, an upwar d varia nce was war

rante d to captur e t h e seriousness of Kelly ’s offe nse and the dang er it posed to the community

. Id. § 3553(a) (2)( A), (C). And a varia

nce provided just punishment for the separ ate harm cause d by eac h of Kelly ’s robber ies. Id. § 3553(a) (2)( A). Thus, the district c ourt’s sentenc e wa s substantively rea sonable. Kelly also arg ues that her sentenc e was proce durally unrea sonable beca use the district court did not provide an adequa te explanation for the upwar d varia nce. Given the rea sons descr ibed above, how ever , we disag ree . The district cour

t’s judgme nt is affirmed.

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