The Honor able Stephen J. Murphy , I I I , United S tates Dist rict J udg e for the Easter n District * of Michig an, sitting by

desig nation. NO T R EC OM M EN DE D F OR F UL L- TEX T P UB LIC AT ION File Na me: 10a0584n.06 No. 08-3729 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. AN TO NI O G I B B S, De fe nd ant- Ap pe lla

nt.

_____________________________________ ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE U NI TED ST ATES DI STRI CT COURT FOR THE NORTHE RN DI STRI CT OF O H IO

OPI

NI ON BEF ORE: GRI FF I

N and WHI TE, Circuit J udg es; and MURPHY, District Judge. * PER C URI AM. Antonio Gibbs appea ls the sentence imposed upon his conviction for possession with intent to distribute coca ine, in violation of 21 U.S.C. § 841(a)(1) ; car rying a firea rm during and in re lation to a drug traffickingcrime, in violation of 18 U.S.C. § 924(c) (1)( A); and be ing a felon in possession of a f irea rm, in violation of 18 U.S.C. § 922(g) (1). Gibbs pleade d g uilty

to the above- specifie d offe nses without a written plea

ag ree ment. At the plea he aring , both the g overnme nt a nd the district c ourt explained to Gibbs that count two, the § 924(c) offe nse, ca

rried a statutorily -mandated conse cutive five -y ear sentenc e that would be imposed in addition to t he senten ce i m p o s ed on counts one a nd three . The g overnme nt indicated that, b a se d o n th e fi ft

y g ra ms o f c oc a ine inv olv e d in the of fe ns e , G ibb s’ s b a se of

fe ns e le ve l for

tho seNo. 08-3729 - 2 - counts would be 16. The prese ntence repor t (PSR ), howeve r, g rouped tog ether Gibbs’s drugand felon-in- possession offense s to calculate a base offense level of 20. See U.S.S.G. § 3D1.2(c). A fter a thre e-le vel adjustment for acc eptanc e of responsibility , the PSR rec ommended a total offe nse leve l of 17, yielding a

Guidelines ra

ng e of 27 to 33 months of imprisonment for c ounts one and thre e. Gi bb s o bje c te d to the PSR, arguin g that th e pr ob a tio n o ff ic e r e rr e d b y

g ro up ingthe mul tip le

c ounts and

a sse rt ingtha

t th e dis tr ic t c ourt

sh ou ld i ns te a d “ be g in .

. . a t a le ve l 16 fo r the dr ugof fe ns e for whic h he pled,” which would yield a Guidelines r ang e of 15 to 21 months. At the sentenc ing hear ing, the district court over ruled Gibbs’s objection to the application of the g rouping provisions and adopte d the PSR ’s Guidelines ra ng e of 27 to 33 months for counts one and thre e. The district court then imposed a

sentenc e of 27 months on those counts and a five-y ear consec utive sentenc e on count two. Gibbs now appe als, arguing that: 1) his sentence is substantively unrea sonable be cause the district court fa iled to meaning fully apply and consider the fa ctors set for th in 18 U.S.C . § 3553(a) ;

and 2) the dis tr ic t c ourt

e rr e d b y a pp lyingthe g ro up ing pr ov isi on s of U. S.S. G. § 3 D1 .2 to c a lc ulate his base off

ense le vel. We reviewsentenc es imposed b y t he district cour t for re asonable ness. United States v. Vo we ll , 516 F.3d 503, 509 ( 6th Cir. 2008). Reasonable ness re view has both a proce dural a

nd a substantive component. Gall v. United States , 5 52 U. S. 3 8, 51 (2 00 7) ; Vo we ll , 516 F.3d at 509. To det er m i n e whether

a sente nce is proc edura lly rea sonable, we first “e nsure that the district c ourt

co m m i tted no signific ant proc edura l error , such as f ailing to c alculate (or imprope rly calc ulat i n g) the Gu ide lin e s r ang e , tr e a tin g the Gu ide lin e s a s ma nd a tor y , f a ili ngto co ns ide r the § 3 55 3( a ) f a c tor s, selec ting a

sentenc e base d on clea

rly err oneous fa cts, or fa i l i n g to adequately explain the chosen sentenc e.” Ga ll , 552 U.S. at 51. I f the district cour t’s sentenc ing de cision is procedur ally sound, we “conside r the substantive re asonable ness of the se ntence imposed under a n abuse- of-discr etion standard.” Id. We ap ply a re bu tta ble pr e su mpt ion of re a so na ble ne ss t o a

se nte nc e that f

a lls wi thi nNo. 08-3729 - 3 - a prope rly

calc ulated Guidelines r ang e. United States v. Vonne r , 516 F.3d 382, 389 (6th Cir.) (e n banc) , cert. de nied , 129 S. Ct . 68 (2008). Gibbs argues that the district cour t committed a proce dural e rror by g rouping his offense s under U .S.S.G. § 3D1.2(c). W hen considering a challeng e to the di strict court’s a pplication of the SentencingGuidelines, we revie w t h e d i strict court’s f indings of f

act f or cle ar e rror

and its leg al conclusions de novo. See U nited States v. Moon , 513 F.3d 527, 540 ( 6th Cir.), cert. de nied , 1 28 S. Ct. 2493 (2008). Th e dis tr ic t c ourt

pr op e rl y g ro up e d tog e the r Gi bb s’ s dr ug and fe lon -i n- po sse ssi on of fe ns e s. There is simpl y no merit to G ibbs’s argument that, “[a]pply ing § 3D1.1(b) in the instant matter, the base offe nse level should be 16.” The district c ourt did apply § 3D1.1(b) w hen it excluded Gibbs’s § 924(c) offe nse, which car ries a mandatory consec utive sentenc e, from the g rouping proce dure. See U.S.S.G. § 3D1.1(b)(1) . That provision, howeve r, does n o t re q uire the e x clusion of his felon-inpossession offe nse, which is not subject to a ma ndatory consec utive sentenc e. And ha d the district court not applied the g rouping provisions to combine the drug traff icking and fe lon-in-possession counts, Gibbs’s total offe nse leve l would have be en 19, rather than 17, beca use he w ould have

re c e ive d a mul tip le -c ount a dju stm e nt p ur su ant t o U .S. S.G . § 3D 1. 4. Whil e Gi bb s is un de rs tand a bly disappointed that the off

ense le vel used by

the district court wa s highe r than the one disc ussed at the ple a he ari ng , th e dis c re pa

nc y wa s th e res ul t of the fa ilure of the pa rt ie s a nd the dis tr ic t c ourt

to

acc urate ly

anticipate G ibbs’s offe nse level at the plea hear ing. I t w as not due to the application of the g rouping provisions. See ge nerally U.S.S.G. Ch. 3, P t. D, intro. comment. (explaining that the g rouping provisions are de signe d to b enef it defenda nts by “pre vent[ing] mult iple punishment for substantially

identical off

ense c onduct”)

. Gibbs also challeng es the substantive re asonable ness of his se ntence , arguing that the district court fa iled to consider his “limi t ed crimi nal history ” and the fac t that he had no pr ior fede ral convictions; his y outh and his family circ umstances; his acc eptanc e of r esponsibility ; and the fa ctNo. 08-3729 - 4 - that he did not co m m i t any new of fense s betwee n the time of his arr est and the time that he was taken into custody . Gibbs contends that, in light of these c ircumst an ce s , the five- y ear mandatory sentenc e would have been suf ficient. The re cord shows that the district c ourt, in imposing the shortest sentenc e within the a dvisory Guidelines ra

ng e, g ave suf

ficient c onsideration to the re levant § 3553(a ) factors. F urther, ma ny of the ar g uments that Gibbs now raises in fa vor of a below-G uidelines sentenc e, such as his acc eptanc e of re sp on sib ili ty and hi s cr imi na l hi sto ry , w e re a lr e a dy take n in to a c c ount i n c a lc ulatin g his Guidelines ra

ng e. Under t hese c ircumstance s, the district court re asonably conclude d that a sente nce within the Guidelines was a ppropriate

. Finally , Gibbs makes the c ursory argument that the district court c lear ly felt constra ined by the Gu ide lin e s. Th e re is no ind ic a tio n in the re c or d, ho we ve r, that the dis tr ic t court be lie ve d th a t it s ability to impose a lower se ntence was limited by the Guidelines ra

ng e. I n d ee d , t h e d i s trict court repe atedly

ref err ed to t he Guidelines as “advisory ” and e x plicitly rec og nized that, although the fivey ear sentenc e on count two wa s mandatory , the sentenc e on the r emaining counts was “discre tionary .” Ac cording ly , relief is not wa rra nted on this basis. Se e Un ite d S tat es v . G ue

st , 564 F.3d 777, 780- 81 (6th Cir. 2009). AFF I RMED.