United States v. Alexander Grant

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 23, 2020
• Docket: 19-3362
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 20a0037n.06

No. 19-3362

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jan 23, 2020 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE ALEXANDER GRANT, ) NORTHERN DISTRICT OF ) OHIO Defendant-Appellant. ) )

Before: ROGERS, KETHLEDGE, and LARSEN, Circuit Judges.

KETHLEDGE, Circuit Judge. Alexander Grant pled guilty to one count of being a felon

in possession of a firearm. He now argues that his above-Guidelines sentence was procedurally

and substantively unreasonable. We reject his arguments and affirm.

In June 2018, Cleveland police officers responded to a report that Grant had a gun and had

punched a woman, Toshiba Carter, three times in the face. Officers soon found Grant with another

woman, Destiny Oglesby, in a car parked near his home. Grant admitted that he was carrying

some “party drugs,” which turned out to be marijuana and crack cocaine. He also said that he

knew why the officers were there, and yelled at Oglesby to call Carter; the officers then warned

Grant that any attempt to threaten or intimidate Carter would be illegal. The officers searched

Grant’s car and found a holster and a round of ammunition. They also searched Oglesby’s purse

and found a Ruger .40-caliber pistol with 13 rounds in the magazine and a round in the chamber.

Grant admitted that the pistol was his, and the officers arrested him. No. 19-3362, United States v. Grant

Grant eventually pled guilty to one count of being a felon in possession of a firearm and

ammunition, in violation of 18 U.S.C. § 922(g)(1). The district court thereafter notified Grant that

it was considering an upward variance under 18 U.S.C. § 3553. At sentencing, the court

determined that Grant’s Guidelines range was 51 to 63 months’ imprisonment. The court then

addressed at some length the § 3553(a) factors: the circumstances in which Grant possessed the

pistol; his lengthy criminal history, which included 16 federal felony convictions in 16 years; and

that a state court had recently sentenced Grant to 54 months’ imprisonment for sexual battery of a

minor. The court said a longer sentence would deter Grant and protect the public, and noted that

“the average sentence nationally for offenses involving firearms at [the same] criminal history

category” was 93 months. The court thus imposed an above-Guidelines sentence of 93 months’

imprisonment, to run consecutive to Grant’s state sentence. This appeal followed.

Grant argues that his sentence was procedurally unreasonable on two grounds; Grant raised

neither ground at sentencing, so we review only for plain error. See United States v. Bostic,

371 F.3d 865, 872–73 (6th Cir. 2004).

First, Grant contends that the district court did not adequately explain its decision to make

its sentence consecutive to the state one. A district court adequately explains a sentence when “it

addresses the factors from 18 U.S.C. § 3553(a) that are relevant” to the decision. United States v.

Solano-Rosales, 781 F.3d 345, 351 (6th Cir. 2015); see 18 U.S.C. § 3584(a)–(b). Here, the court

said that the sentence was for altogether different conduct than the state crime, so “a separate

punishment [was] needed.” See 18 U.S.C. § 3553(a)(2)(A). The court also said that it based the

sentence on the “overall offense conduct” and Grant’s “prior record involving guns as well as the

dangers that [he] poses to our community.” See id. § 3553(a)(1), (a)(2)(C). Thus, taken as a whole,

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the district court made clear its rationale for imposing the consecutive sentence—which means

that its explanation was adequate. See United States v. Owens, 159 F.3d 221, 230 (6th Cir. 1998).

Second, Grant contends that the court improperly relied on the average national sentence

without providing that statistic to Grant in advance of the hearing. A sentence is procedurally

unreasonable when, among other things, the court relies on facts that surprise the defendant. See

United States v. Coppenger, 775 F.3d 799, 804 (6th Cir. 2015). Here, § 3553(a) expressly directs

the court to consider national sentencing disparities. See 18 U.S.C. § 3553(a)(6); United States v.

Conatser, 514 F.3d 508, 521 (6th Cir. 2008). Grant therefore should not have been surprised that

the court did precisely that when it considered national statistics relevant to his offense and

criminal-history score. The statistic in question is found at Sourcebook of Federal Sentencing

Statistics 34 (2017). And nothing prevented Grant from providing the district court then with all

the statistical arguments he presents to us now. The district court did not plainly err.

Grant next challenges the substantive reasonableness of his sentence, which we review for

an abuse of discretion. United States v. O’Georgia, 569 F.3d 281, 288 (6th Cir. 2009). A sentence

is substantively unreasonable when the district court gives unreasonable weight to any of the

§ 3553(a) factors. United States v. Nixon, 664 F.3d 624, 626 (6th Cir. 2011).

Grant argues that the district court placed too much weight on the 93-month average

national sentence. But the record makes clear that the court cited that statistic—in the context of

avoiding sentencing disparities—merely as one of multiple § 3553(a) factors that supported an

upward variance. See 18 U.S.C. § 3553(a)(6). The court did not give this factor unreasonable

weight. Cf. United States v. Elmore, 743 F.3d 1068, 1076 (6th Cir. 2014); see, e.g., United States

v. Clemons, 757 F. App’x 413, 422 (6th Cir. 2018).

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Finally, Grant argues that the district court gave unreasonable weight to his criminal

history, given that his criminal-history score already accounted for his 16 prior convictions. That

the Guidelines address a particular circumstance does not bar the district court from assigning that

circumstance additional significance under § 3553(a), so long as the court explains its reasons for

doing so. See Nixon, 664 F.3d at 626. Here, the court said—correctly—that Grant had received

“relatively light sentences” for his 16 prior felonies in the preceding 16 years. And the court added

that a longer sentence for this crime would “deter [Grant] and prevent him from continuing the

pattern . . . [of] violating the law with drugs and firearms.” Grant’s sentence was substantively

reasonable.

The district court’s judgment is affirmed.

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