United States v. Sathon Evans

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 12a0385p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 11-3460

v.

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Defendant-Appellant. -

SATHON EVANS,

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Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 1:10-cr-83-1—Sandra S. Beckwith, District Judge.

Argued: April 17, 2012

Decided and Filed: November 15, 2012

Before: GIBBONS and SUTTON, Circuit Judges, and DUGGAN, District Judge.*

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COUNSEL

ARGUED: Kevin M. Schad, FEDERAL PUBLIC DEFENDER’S OFFICE, Cincinnati,

Ohio, for Appellant. Christopher K. Barnes, ASSISTANT UNITED STATES

ATTORNEY, Cincinnati, Ohio, for Appellee. ON BRIEF: Kevin M. Schad, FEDERAL

PUBLIC DEFENDER’S OFFICE, Cincinnati, Ohio, for Appellant. Christopher K.

Barnes, ASSISTANT UNITED STATES ATTORNEY, Cincinnati, Ohio, for Appellee.

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OPINION

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JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Sathon Evans

pled guilty to being a felon in possession of a firearm and was sentenced to 92 months’

imprisonment. When calculating his base offense level under the United States

*

The Honorable Patrick J. Duggan, United States District Judge for the Eastern District of

Michigan, sitting by designation.

1

No. 11-3460 United States v. Evans Page 2

Sentencing Guidelines, the district court determined that Evans’s 2004 Ohio conviction

for trafficking in cocaine was a controlled substance offense and that his 2000 Ohio

conviction for knowingly assaulting a police officer was a crime of violence as defined

under the Guidelines and, accordingly, applied a four-level enhancement to Evans’s base

offense level pursuant to U.S.S.G. § 2K2.1(a)(2). On appeal, Evans argues that this four-

level enhancement was not warranted, claiming that his assault conviction under Ohio

Revised Code § 2903.13(A) does not categorically qualify as a crime of violence and

that his trafficking in cocaine conviction under Ohio Revised Code § 2925.03(A)(1) does

not categorically qualify as a controlled substance offense. He also argues that his

sentence is substantively unreasonable. For the reasons that follow, we affirm the

sentence imposed by the district court.

I.

On April 22, 2010, Cincinnati Police Department officers on a mountain bike

patrol observed a person—later identified as Sathon Evans—sitting on a park bench after

the park was closed. The officers approached Evans to investigate why he was in the

park after hours, but before he noticed them, Evans got up from the bench and

approached a vehicle that had stopped on a street adjacent to the park. While Evans was

talking to the occupants of the vehicle, he became aware of the approaching police

officers and fled. The officers gave chase, and during the pursuit, they observed Evans

holding a pistol in his hand. Before he was apprehended in an alley, officers saw Evans

throw the gun on top of a building. Evans was arrested, and the firearm, a loaded .45-

caliber semiautomatic handgun, was recovered.

Evans was charged with being a felon in possession of a firearm, in violation of

18 U.S.C. §§ 922(g)(1) and 924(a)(2), and pled guilty to the offense. Prior to sentencing,

a probation officer prepared a presentence investigation report (“PSR”). Having

concluded that Evans had at least two prior felony convictions of either a crime of

violence or a controlled substance offense, the probation officer calculated Evans’s base

offense level as 24 pursuant to U.S.S.G. §§ 2K2.1(a)(2) and 4B1.2. After several

adjustments were applied, Evans’s total offense level was 23. The PSR indicated that

No. 11-3460 United States v. Evans Page 3

Evans had 16 criminal history points, placing him in a criminal history category of VI.

This resulted in a recommended sentence of 92 to 115 months’ imprisonment.

Evans objected to the probation officer’s determination that his 2004 Ohio

cocaine trafficking conviction was a controlled substance offense as defined under

U.S.S.G. § 4B1.2(b). He argued that his conviction under Ohio Revised Code

§ 2925.03(A)(1) could not categorically be considered a “controlled substance offense”

under the Guidelines because the statute allowed for a conviction for a mere “offer to

sell” drugs. Evans also argued that his conviction for knowingly assaulting a police

officer, in violation of Ohio Revised Code § 2903.13(A) and (C)(3), could not

categorically be considered a crime of violence as defined under U.S.S.G. § 4B1.2(a)

because the conduct proscribed by the statute need not be “purposeful.” Evans

conceded, however, that his prior 2006 felony conviction for drug trafficking in Ohio

qualified as a controlled substance offense under the Sentencing Guidelines. As a result,

Evans argued that with just one qualifying prior felony conviction, his base offense level

under the Guidelines should have been 20 instead of 24.

At sentencing, the district court rejected Evans’s arguments and found that his

2004 Ohio conviction of trafficking in cocaine was a controlled substance offense and

that his 2000 Ohio conviction for knowingly assaulting a police officer was a crime of

violence as defined under § 4B1.2 of the Sentencing Guidelines. After Evans presented

his arguments in favor of mitigation and a below-Guidelines sentence—including a

difficult, unstable childhood; the murder of his father; a history of substance abuse; the

completion of a GED and drug treatment programs; and his claim that he only began

carrying a gun for protection after the murder of his brother—the district court

considered the 18 U.S.C. § 3553(a) sentencing factors. The district court acknowledged

Evans’s difficult upbringing but concluded that this factor was outweighed by his

lengthy and serious criminal history. The district court ultimately imposed a sentence

of 92 months’ imprisonment, which was at the bottom end of the Guidelines range.

No. 11-3460 United States v. Evans Page 4

II.

On appeal, Evans maintains that the district court improperly enhanced his

advisory base offense level by four levels, from 20 to 24, under Sentencing Guideline

§ 2K2.1(a)(2) based on his 2000 felony conviction of knowingly assaulting a police

officer and his 2004 felony conviction of trafficking in cocaine. Section 2K2.1(a)(2)

provides that if a defendant who is convicted of being a felon in possession of a firearm

has at least two prior felony convictions of either a crime of violence or a controlled

substance offense, the district court is to apply a base offense level of 24. U.S.S.G.

§ 2K2.1(a)(2). If a defendant has only one such prior conviction, the district court is to

apply a base offense level of 20. Id. § 2K2.1(a)(4)(A). Because Evans has admitted that

his prior 2006 felony conviction for drug trafficking in Ohio qualifies as a controlled

substance offense under the Sentencing Guidelines, we need only find that one of the

challenged prior convictions qualifies under §§ 2K2.1 and 4B1.2 to affirm the district

court’s decision to set Evans’s base offense level at 24.

A district court’s determination that a prior offense qualifies either as a crime of

violence or as a controlled substance offense is a legal determination, which we review

de novo. United States v. Catalan, 499 F.3d 604, 606 (6th Cir. 2007); United States v.

McMurray, 653 F.3d 367, 371 (6th Cir. 2011). When conducting this de novo review,

this court applies a “categorical” approach, “looking to the statutory definition of the

offense and not the particular facts underlying the conviction.”1 McMurray, 653 F.3d

at 372 (citing Taylor v. United States, 495 U.S. 575, 600 (1990)).

A.

Evans claims that his prior conviction for assault of a police officer, in violation

of Ohio Revised Code § 2903.13(A) and (C)(3), was not categorically a crime of

1

McMurray addressed the issue of whether a Tennessee conviction for aggravated assault

qualified as a “violent felony” under the Armed Career Criminal Act (“ACCA”). 653 F.3d at 371. As the

McMurray court noted, “[w]hether a conviction is a ‘violent felony’ under the ACCA is analyzed in the

same way as whether a conviction is a ‘crime of violence’ under the United States Sentencing Guidelines

(‘U.S.S.G.’) § 4B1.2(a).” Id. at 371 n.1.

No. 11-3460 United States v. Evans Page 5

violence pursuant to U.S.S.G. § 2K2.1(a)(2). Section 2K2.1 incorporates the definition

of a “crime of violence” from U.S.S.G. § 4B1.2, which provides that

(a) The term “crime of violence” means any offense under federal or

state law, punishable by imprisonment for a term exceeding one year,

that–

(1) has as an element the use, attempted use, or threatened use of

physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of

explosives, or otherwise involves conduct that presents a serious

potential risk of physical injury to another.

U.S.S.G. §§ 4B1.2(a) & 2K2.1, Application Note 1. The district court found that the

Ohio assault statute under which Evans was convicted—Ohio Revised Code

§ 2903.13(A) and (C)(3), which states: “[n]o person shall knowingly cause or attempt

to cause physical harm to another . . . [and] . . . [i]f the victim of the offense is a peace

officer . . . while in the performance of [his] official duties, assault is a felony of the

fourth degree”—was categorically a crime of violence under both subsections of

§ 4B1.2(a). We agree.

First, when the victim is a police officer, the Ohio assault statute describes an

offense punishable by imprisonment for a term exceeding one year. See Ohio Rev. Code

§ 2929.14(A)(4).

Next, in order to categorically qualify as a crime of violence under the first

subsection of the Guidelines definition, a statute must have as an element the use (or

attempted use) of physical force against another. U.S.S.G. § 4B1.2(a)(1). When

construing the “use of physical force” clause of the ACCA (see footnote 1, supra), the

Supreme Court defined “physical force” to mean “violent force—that is, force capable

of causing physical pain or injury to another person,” and contrasted this level of force

with mere unwanted touching, which would be incapable of causing such physical pain

or injury. Johnson v. United States, 130 S.Ct. 1265, 1270–72 (2010).

The Ohio assault statute at issue requires proof that a defendant knowingly

caused or attempted to cause physical harm to another person. Ohio Rev. Code

No. 11-3460 United States v. Evans Page 6

§ 2903.13(A). Ohio defines “physical harm” as any injury, regardless of its gravity or

duration. See Ohio Rev. Code § 2901.01(A)(3). One can knowingly cause or attempt

to cause physical harm—i.e., physical injury—to another only by knowingly using or

attempting to use physical force—i.e., force capable of causing physical injury.

Conviction under the Ohio statute, § 2903.13(A), therefore, necessarily requires proof

that a defendant knowingly used, or attempted to use, physical force capable of causing

physical pain or injury and, accordingly, qualifies as a crime of violence under

§ 4B1.2(a)(1).

Such a conclusion does not conflict with McMurray’s holding that in order to

qualify as a “crime of violence” the use or attempted use of physical force must involve

more than negligent or reckless conduct. See McMurray, 653 F.3d at 374. Evans was

convicted under Ohio Revised Code § 2903.13(A), which requires knowing conduct.

This conclusion, however, does conflict with language found in footnote six of the

McMurray opinion, in which this court questioned whether a Tennessee statute that

required proof that a person caused “serious bodily injury” to another necessarily had

as an element “the use of physical force.” McMurray, 653 F.3d at 374–75 n.6.

This language in McMurray is non-binding dicta, however, as the footnote begins

with the caveat, “[a]lthough our decision rests on the Tennessee statute’s inclusion of

reckless conduct, we also question . . . .” See id. Moreover, we decline to follow the

reasoning contained in the footnote because it appears to be based on the flawed premise

that in order for a person to use a strong physical force, the person must generate or

direct the use of this force. The McMurray footnote contends that “[a]lthough we might

expect that someone who causes serious bodily injury to another did so with a strong

physical force, the statute does not require it” and cites as an example a case in which

a defendant was convicted of aggravated assault under the Tennessee statute at issue

after the defendant placed an unconscious victim in the middle of a road where the

victim was run over by a car.2 Id. In this example, there clearly was a physical force

2

The footnote addresses knowing or intentional conduct, not reckless conduct—which is

addressed in the body of the opinion. In order to provide any support for the proposition for which it was

cited—that one can knowingly or intentionally cause serious bodily injury to another without using a

No. 11-3460 United States v. Evans Page 7

that caused the victim’s injuries—the force of the car—so the McMurray court must

have been implying that simply because the defendant did not personally generate or

direct the force that injured the victim, the defendant did not use this strong physical

force. Using this same logic, a person who uses a small amount of physical force—a

force that in itself would be incapable of causing physical pain or injury—to

intentionally push someone off a cliff does not use strong physical force against another.

Rather, the victim’s injuries would be caused by the force of gravity.

This cannot be correct. A defendant uses physical force under § 4B1.2(a)(1)

when a defendant knowingly sets in motion a series of events that the defendant knows

will result in the application of “a force capable of causing physical pain or injury to

another person.” See Johnson, 130 S.Ct. at 1271. Under this formulation, a

statute—such as Ohio Rev. Code § 2903.13(A)—that requires a showing that the

defendant knowingly caused or attempted to cause a physical injury necessarily has as

an element the knowing use or attempted use of physical force against another and thus

categorically qualifies as a crime of violence under § 4B1.2(a)(1). See United States v.

Anderson, 695 F.3d 390, 399–401 (6th Cir. 2012) (holding that, under the Armed Career

Criminal Act, the defendant’s prior conviction for aggravated assault in Ohio

categorically qualified as a “violent felony” under 18 U.S.C. § 924(e)(2)(B)(i) because

proof of serious physical injury or pain under the Ohio aggravated assault statute

necessarily requires proof of violent physical force); United States v. Gloss, 661 F.3d

317, 319 (6th Cir. 2011) (holding that an aggravated robbery statute that required proof

that the robbery was accomplished with a deadly weapon or resulted in a victim

suffering serious bodily injury “falls under the first clause of the definition of violent

felony, as it necessarily involves the ‘use, attempted use, or threatened use of physical

force against the person of another’”); see also De Leon Castellanos v. Holder, 652 F.3d

762, 766 (7th Cir. 2011) (“Battery causing bodily harm entails physical force because

some sort of physical pain or damage to the body . . . is required to convict.” (internal

quotation marks omitted)).

strong physical force—the defendant in the example must have known or intended that the unconscious

victim would be struck by a car.

No. 11-3460 United States v. Evans Page 8

Evans’s reliance on State v. Cross-Necas, No. 2010–P–0043, 2011 WL 2120098

(Ohio Ct. App. May 27, 2011), to argue that Ohio Revised Code § 2903.13(A) does not

require proof of the use or attempted use of physical force is misplaced. The Cross-

Necas court held that multiple scratches on a victim’s neck caused by the defendant’s

fingernails after she swung her arm at the victim were sufficient to constitute physical

harm under § 2903.13(A). 2011 WL 2120098, at *4. Scratches are physical injuries that

are typically painful. Painful injuries are necessarily caused by a force capable of

causing physical pain or injury. Accordingly, Cross-Necas does not support Evans’s

contention that the Ohio assault statute does not require proof of the use of force and

does not qualify as a crime of violence under § 4B1.2(a)(1).

Evans’s conviction also categorically qualifies as a crime of violence under the

so-called residual clause of the Guidelines definition because his offense “otherwise

involve[d] conduct that presents a serious potential risk of physical injury to another.”

U.S.S.G. § 4B1.2(a)(2). In Begay v. United States, the Supreme Court held that the

corresponding residual clause of the ACCA applies only to crimes “that are roughly

similar, in kind as well as in degree of risk posed,” to the enumerated examples of

burglary, arson, extortion, and crimes involving explosives. 553 U.S. 137, 143 (2008).

The Court concluded that the crime of driving under the influence of alcohol “differs

from the example crimes . . . in at least one pertinent, and important, respect. The listed

crimes all typically involve purposeful, ‘violent,’ and ‘aggressive’ conduct.” Id. at

144–45.

In Sykes v. United States, however, the Supreme Court limited the application of

Begay’s “purposeful, violent, and aggressive” standard, noting that it had no precise

textual link to the residual clause and clarifying that this standard should only be applied

to crimes premised on strict liability, negligence, or recklessness. 131 S. Ct. 2267,

2275–76 (2011). Instead, the Court found that the “risk levels” approach provided a

“categorical and manageable standard” and used this method to resolve the case. Id.

Under this approach, a court considers whether “the risk posed by the crime in question

is comparable to that posed by its closest analog among the enumerated offenses.” Id.

No. 11-3460 United States v. Evans Page 9

at 2273 (quoting James v. United States, 550 U.S. 192, 203 (2007)) (internal editing

marks omitted). The Court compared the crime in question—vehicle flight from a law

enforcement officer—to burglary and arson and concluded that vehicle flight involved

a similar potential risk of physical injury to others. Id. at 2273–75. Accordingly, the

Court held that felony vehicle flight was a violent felony for purposes of the ACCA. Id.

at 2277.

Because the Ohio assault statute in question requires “knowing” conduct, Ohio

Rev. Code § 2903.13(A), it is not necessary for us to apply Begay’s “purposeful, violent,

and aggressive” standard. See Sykes, 131 S. Ct. at 2275. Rather, we compare the

relative risks posed by the offense and the crimes enumerated in § 4B1.2(a)(2) of the

Guidelines. The risk posed by assault under the Ohio statute—knowingly causing or

attempting to cause physical harm to another—presents an even higher risk of injury

than the enumerated crime of burglary. “Burglary is dangerous because it can end in

confrontation leading to violence,” id. at 2273, while an assault under § 2903.13(A) is

dangerous because it is itself a confrontation that involves violence. The risk of injury

posed by knowing assault under the statute is at least as great as the risk posed by

burglary, or as the Court addressed in Sykes, felonious flight from a law enforcement

officer. As a result, Evans’s conviction under Ohio Revised Code § 2903.13(A)

categorically qualifies as a crime of violence under the residual clause of the Guidelines

definition as well.

B.

Evans also argues that his prior conviction for trafficking in cocaine, in violation

of Ohio Revised Code § 2925.03(A)(1), was not categorically a controlled substance

offense under U.S.S.G. § 2K2.1(a)(2) because the statute allows for a conviction for a

mere “offer to sell” drugs. The government contends that an offer to sell a controlled

substance under the Ohio statute qualifies as a controlled substance offense under the

Guidelines.

The Ohio drug trafficking statute under which Evans was convicted states that

“[n]o person shall knowingly . . . [s]ell or offer to sell a controlled substance.” Ohio

No. 11-3460 United States v. Evans Page 10

Rev. Code § 2925.03(A)(1). The statute thus proscribes two kinds of conduct—selling

and offering to sell a controlled substance. See State v. Short, No. 83804, 2005 WL

2100969, at *4 (Ohio Ct. App. Sept. 1, 2005) (“Criminalizing an offer to sell a controlled

substance is aimed to prevent drug commerce; there need not be an actual sale.”).

Because the Ohio court documents do not indicate whether Evans was convicted for

selling cocaine or offering to sell cocaine, the panel should look to the lesser of the two

offenses, an offer to sell cocaine, to determine whether this offense categorically

qualifies as a controlled substance offense under U.S.S.G. § 2K2.1. See Johnson,

130 S. Ct. at 1269.

Section 2K2.1 incorporates the definition of a “controlled substance offense”

from U.S.S.G. § 4B1.2, which provides that

(b) The term “controlled substance offense” means an offense under

federal or state law, punishable by imprisonment for a term exceeding

one year,3 that prohibits the manufacture, import, export, distribution, or

dispensing of a controlled substance (or a counterfeit substance) or the

possession of a controlled substance (or a counterfeit substance) with

intent to manufacture, import, export, distribute, or dispense.

U.S.S.G. §§ 4B1.2(b) & 2K2.1, Application Note 1. Further, a “controlled substance

offense” includes “the offenses of aiding and abetting, conspiring, and attempting to

commit such offenses.” U.S.S.G. § 4B1.2, Application Note 1.

Two cases by this court provide persuasive support for the proposition that a

conviction for knowingly offering to sell a controlled substance is a controlled substance

offense under U.S.S.G § 4B1.2(b). See United States v. Jackson, 296 F. App’x 491, 493

(6th Cir. 2008) (finding that the district court “properly determined that [the defendant]

had been convicted of a controlled substance offense” after relying on an indictment that

charged the defendant “with knowingly selling, or offering to sell, a controlled

substance” under an older version of Ohio Revised Code § 2925.03(A)); United States

v. Montanez, 442 F.3d 485, 493 n.5 (6th Cir. 2006) (suggesting that Ohio statutory

3

It is not contested that offering to sell cocaine is an offense punishable by imprisonment for a

term exceeding one year. See Ohio Rev. Code § 2929.14(A)(4).

No. 11-3460 United States v. Evans Page 11

sections that criminalized sales and offers to sell a controlled substance—as opposed to

mere possession in a bulk amount—“arguably” would qualify as controlled substance

offenses).

Evans points to two cases from the Second and Fifth Circuits, however, which

held that where a state offense permits a conviction for an “offer to sell” and does not

require the presence of actual narcotics, the prior offense will not meet the definition of

a “controlled substance offense.” See Unites States v. Savage, 542 F.3d 959, 965–66 (2d

Cir. 2008) (holding that “a mere offer to sell,” absent possession, does not qualify as a

controlled substance offense, reasoning that “[a]n offer to sell can be fraudulent, such

as when one offers to sell the Brooklyn Bridge. In such a circumstance, the offer to sell

is fraudulent in the sense that the person offering the bridge or the drug does not have

the intent to distribute or sell the item. As we have held, a crime not involving the

mental culpability to commit a substantive narcotics offense [does not] serve as a

predicate ‘controlled substance offense’ under the Guidelines.” (internal citation and

quotation marks omitted)); United States v. Price, 516 F.3d 285, 287 (5th Cir. 2008)

(holding that a conviction under the Texas statute at issue for offering to sell a controlled

substance was not a “controlled substance offense” under the Guidelines).

This court found in Mendieta-Robles v. Gonzales, 226 F. App’x 564, 570 (6th

Cir. 2007) that “[t]o be convicted under ORC § 2925.03(A)(1), an individual need only

intend to offer to sell a controlled substance” (emphasis added), but this no longer

appears to be a correct statement of Ohio law. The Supreme Court of Ohio held in State

v. Cabrales, 886 N.E.2d 181, 188 (Ohio 2008), that “[t]rafficking under R.C.

2925.03(A)(1) requires an intent to sell, but the offender need not possess the controlled

substance in order to offer to sell it.” (emphasis added) The distinction between an

“intent to sell” and an “intent to offer to sell” is crucial and distinguishes the Ohio drug

trafficking statute from the statute at issue in Savage. Because conviction under

§ 2925.03(A)(1) for an offer to sell a controlled substance requires an intent to sell a

controlled substance, the statute, as interpreted by the Supreme Court of Ohio, does not

No. 11-3460 United States v. Evans Page 12

encompass fraudulent offers to sell—i.e., an offer to sell a controlled substance when the

defendant has no intention of carrying out the sale.

Instead, because a conviction under § 2925.03(A)(1) requires an intent to sell a

controlled substance, such a conviction under the statute for an offer to sell is properly

considered an attempt to transfer a controlled substance, which is a “controlled substance

offense” under the Guidelines. See U.S.S.G. § 4B1.2, Application Note 1. “We have

crimes of attempt because the mens rea involved is not diminished by failure.” United

States v. Benson, 27 F.3d 567 (table), 1994 WL 188504, at *5 (6th Cir. 1994). Criminal

attempt requires that the defendant intended to commit the crime and that the defendant

took a substantial step towards committing the crime, beyond mere preparation. Sixth

Circuit Pattern Jury Instructions, § 5.01; United States v. Dolt, 27 F.3d 235, 239 (6th Cir.

1994). Conviction under § 2925.03(A)(1) requires proof of both elements. A defendant

must have the intent to sell a controlled substance in order to be convicted under the

Ohio statute. Cabrales, 886 N.E.2d at 188. And the act of offering to sell a controlled

substance is a substantial step towards committing the crime of distributing a controlled

substance. See United States v. Colon, 268 F.3d 367, 377 (6th Cir. 2001) (holding that

distribution of a controlled substance under 21 U.S.C. § 841(a), which may involve

actual or constructive possession of a controlled substance, also includes “other acts

perpetrated in furtherance of a transfer or sale, such as arranging or supervising the

delivery, or negotiating for or receiving the purchase price”); United States v. Wigley,

627 F.2d 224, 226 (10th Cir. 1980) (“Activities in furtherance of the ultimate sale such

as vouching for the quality of the drugs, negotiating for or receiving the price, and

supplying or delivering the drug are sufficient to establish distribution.”). An offer to

sell a controlled substance is an act perpetrated in furtherance of a sale, typically as part

of the negotiation for the price and quantity, and it is therefore a substantial step in

attempting to consummate a sale. Accordingly, a conviction under § 2925.03(A)(1) for

offering to sell a controlled substance constitutes an attempt to distribute a controlled

substance, and thus a conviction under the statute categorically qualifies as a controlled

substance offense under U.S.S.G. §§ 2K2.1(a)(2) and 4B1.2(b).

No. 11-3460 United States v. Evans Page 13

Because we hold that Evans’s conviction for assault of a police officer under

Ohio Revised Code § 2901.13 is a crime of violence and his conviction for trafficking

in cocaine under Ohio Revised Code § 2925.03(A)(1) is a controlled substance offense,

Evans has at least two qualifying prior felony convictions under U.S.S.G. § 2K2.1(a)(2),

and the district court properly determined that his base offense level was 24 under this

provision of the Guidelines.

III.

Evans also challenges the substantive reasonableness of his sentence, arguing

that a term of 92 months’ imprisonment was greater than necessary. “Post-Booker, we

review a district court’s sentencing determination under a deferential abuse-of-discretion

standard, for reasonableness.” United States v. Presley, 547 F.3d 625, 629 (6th Cir.

2008) (internal quotation marks omitted). Review of the substantive reasonableness of

a sentence takes into account the totality of the circumstances. Gall v. United States,

552 U.S. 38, 51 (2007). A sentence may be substantively unreasonable, for example, if

the district court selects the sentence arbitrarily, bases the sentence on impermissible

factors, fails to consider pertinent Section 3553(a) factors, or gives an unreasonable

amount of weight to any pertinent factor. United States v. Webb, 403 F.3d 373, 385

(6th Cir. 2005). When a sentence falls within the Guidelines range, a presumption of

reasonableness applies. United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008)

(en banc). “The fact that the appellate court might reasonably have concluded that a

different sentence was appropriate is insufficient to justify reversal of the district court.”

Gall, 552 U.S. at 51.

Evans claims that his sentence is greater than necessary because of his personal

history and other mitigating factors. During his sentencing hearing, Evans offered the

following reasons in favor of mitigation and a below-Guidelines sentence: an unstable

childhood, the murder of his father, a history of substance abuse, the completion of a

GED and drug treatment programs, his claim that his two sons need him, his claim that

he only began carrying a gun for protection after the murder of his brother, and his claim

that category VI overstated the seriousness of his prior criminal activity.

No. 11-3460 United States v. Evans Page 14

The district court considered these mitigating factors, acknowledging Evans’s

difficult upbringing, but concluded that they were outweighed by his lengthy and serious

criminal history. It found that his criminal conduct demonstrated “a life of disrespect

for the law” and that Evans was “clearly a risk to reoffend.” The need to promote

respect for the law and to provide adequate deterrence and protection of the public points

to the reasonableness of the sentence imposed. The district court did not abuse its

discretion when it concluded that these concerns outweighed the mitigating factors

offered by Evans. The district court did not select the sentence arbitrarily, base its

decision on impermissible factors, fail to consider pertinent Section 3553(a) factors, or

give an unreasonable amount of weight to any pertinent factor. See Webb, 403 F.3d at

385.

Moreover, because both of Evans’s challenged prior convictions qualify as

predicate offenses under U.S.S.G. § 2K2.1(a)(2), the district court correctly determined

Evans’s base offense level, which resulted in a recommended sentence of 92 to 115

months’ imprisonment. Because the sentence of 92 months’ imprisonment is within the

recommended range under the Guidelines, it is presumptively reasonable. See Vonner,

516 F.3d at 389. Evans has failed to rebut this presumption. See United States v.

Robinson, 503 F.3d 522, 528 (6th Cir. 2007) (finding that it is incumbent upon the

defendant to establish that his within-Guidelines sentence was unreasonable); United

States v. Trejo-Martinez, 481 F.3d 409, 413 (6th Cir. 2007) (“The mere fact that [the

defendant] desired a more lenient sentence, without more, is insufficient to justify our

disturbing the reasoned judgment of the district court.”). Evans’s sentence was

substantively reasonable.

IV.

For the reasons provided above, we affirm the district court’s judgment.