NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0363n.06
No. 18-5772 FILED Jul 15, 2019 UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ) ) Plaintiff–Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF KENTUCKY GEORGE VAUGHN, ) ) OPINION Defendant–Appellant. ) )
Before: MOORE, KETHLEDGE, and MURPHY, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. George Vaughn, a convicted felon, was
caught on a motorcycle with a firearm. He pleaded guilty to a one-count indictment that charged
a violation of the statute banning felons from possessing firearms, 18 U.S.C. § 922(g)(1), but he
objected to the application of a sentencing enhancement for possessing a firearm in connection
with another felony, U.S. SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 2K2.1(b)(6)(B)
(2016). Vaughn threw a can containing methamphetamine and drug packaging paraphernalia from
his motorcycle before he was arrested. He argues that the enhancement cannot apply because the
drugs were not found in close proximity to the firearm. We reject his arguments and AFFIRM.
I. BACKGROUND
On May 31, 2017, officers of the Mercer County Sheriff’s Office saw a stolen vehicle in
the driveway of Heather King’s house and a motorcycle approaching the house with Ms. King on
the back. Presentencing Report (PSR) at 3, ¶ 2 (Page ID #76). Vaughn was driving the motorcycle. No. 18-5772, United States v. Vaughn
Id. Although the officers asked him to stop, he continued driving after indicating to the officers
that he had to turn around in order to enter the driveway. Id. Vaughn drove the motorcycle over
a hill and out of the officers’ sight. Id. at ¶¶ 2-3.
The officers caught up to Vaughn 150 yards away, where they found him heading back
toward King’s house. Id. at ¶ 3. After the stop, King told the officers that there was a gun in the
backpack that was hanging from the back of the motorcycle; Vaughn, unprompted, told the officers
that he bought the firearm for King. Id. The officers arrested Vaughn, given his status as a
convicted felon. Id.
Upon questioning by the officers, King revealed that Vaughn drove past the officers to
dispose of drugs and that he threw a small can off the motorcycle before the officers caught up to
them. Id. at ¶ 4. King took the officers to the can, which contained three bags of methamphetamine
weighing a total of three grams, “25 small baggies, pills, three syringes and a digital scale.” Id.
Vaughn pleaded guilty to a one-count indictment that charged a violation of 18 U.S.C.
§ 922(g)(1), for possessing a firearm after having been convicted of a felony. R. 22 (Minute
Entry); R. 29 (Judgment at 1) (Page ID #57). He admitted that he possessed the firearm found on
the motorcycle but objected to the proposed four-level sentencing enhancement for possessing a
firearm in connection with another felony offense. PSR at 21.
At sentencing, Vaughn denied that the drugs were his but did not address whether he threw
the drugs from the motorcycle. R. 35 (Sentencing Tr. at 6, 8–9) (Page ID #107, 109–10). He
argued that the enhancement was inapplicable because the drugs were not found near the gun. Id.
at 6. The district court overruled Vaughn’s objection and applied the enhancement, resulting in a
2 No. 18-5772, United States v. Vaughn
Guidelines range of 41 to 51 months of imprisonment. Id. Vaughn’s counsel then argued for
leniency because of Vaughn’s age, health problems, and never-treated drug addictions. Id. at 7–8
(Page ID #108–09). The district court sentenced Vaughn to 41 months of incarceration with a
recommendation that he participate in a substance-abuse treatment program, obtain his GED, and
receive vocational training. Id. at 11–13 (Page ID #112–14). Vaughn now appeals.
II. ANALYSIS
Vaughn challenges his sentence on three grounds. First, he argues that the district court
erred in applying the enhancement for possessing a firearm in connection with another felony
offense, U.S.S.G. § 2K2.1(b)(6)(B). Second, he argues that his sentence was procedurally
unreasonable because the district court did not consider the 18 U.S.C. § 3553(a) factors. Finally,
he argues that his sentence was substantively unreasonable. All of Vaughn’s arguments fail.
A. The Sentencing Enhancement
We begin with the sentencing enhancement. We review the district court’s factual
determinations for clear error. See United States v. Susany, 893 F.3d 364, 366–67 (6th Cir. 2018).
Because the Guidelines provision at issue is the § 2K2.1(b)(6)(B) firearm enhancement, we do not
apply our usual de novo standard of review to the district court’s legal conclusions. Rather, we
“accord due deference to the district court’s determination that the firearm was used or possessed
in connection with the other felony.” United States v. Shanklin, 924 F.3d 905, 919 (6th Cir. 2019)
(quoting United States v. Seymour, 739 F.3d 923, 929 (6th Cir. 2014)).
The district court applied a four-level sentencing enhancement for possessing a firearm in
connection with another felony. R. 35 (Sentencing Tr. at 6) (Page ID #107). The other felony in
3 No. 18-5772, United States v. Vaughn
Vaughn’s case was drug trafficking, which, although uncharged, was evidenced by the drug
packaging paraphernalia—a digital scale and 25 small baggies—found with the three bags of
methamphetamine weighing three grams. PSR at 3, ¶ 4. The Guidelines commentary says that,
“in the case of a drug trafficking offense,” the enhancement applies when “a firearm is found in
close proximity to drugs, drug-manufacturing materials, or drug paraphernalia” because “the
presence of the firearm has the potential of facilitating” the drug trafficking. U.S.S.G. § 2K2.1
cmt. n.14(B).
Vaughn argues that the district court erred in applying the enhancement to him because the
firearm was found over 150 yards from the drugs. Appellant Br. at 13. The district court correctly
applied the enhancement because the firearm and drugs “were in the same proximity until [the
drugs] were thrown off the motorcycle.” R. 35 (Sentencing Tr. at 6) (Page ID #107). Vaughn
pleaded guilty to possession of the gun and did not dispute that he threw the drugs from the
motorcycle. He denied possession of the drugs at the sentencing hearing, but he does not argue on
appeal that the district court erred by implicitly finding that the drugs were his. His sole argument
on appeal as to the enhancement is that it was inapplicable because of the distance between the
firearm and the drugs, and the district court did not err in rejecting that argument. The district
court’s application of the four-level enhancement was proper, and its calculation of the Guidelines
range was correct.
B. Procedural Reasonableness
Vaughn next argues that his sentence was procedurally unreasonable because the district
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0363n.06
No. 18-5772 FILED Jul 15, 2019 UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ) ) Plaintiff–Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF KENTUCKY GEORGE VAUGHN, ) ) OPINION Defendant–Appellant. ) )
Before: MOORE, KETHLEDGE, and MURPHY, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. George Vaughn, a convicted felon, was
caught on a motorcycle with a firearm. He pleaded guilty to a one-count indictment that charged
a violation of the statute banning felons from possessing firearms, 18 U.S.C. § 922(g)(1), but he
objected to the application of a sentencing enhancement for possessing a firearm in connection
with another felony, U.S. SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 2K2.1(b)(6)(B)
(2016). Vaughn threw a can containing methamphetamine and drug packaging paraphernalia from
his motorcycle before he was arrested. He argues that the enhancement cannot apply because the
drugs were not found in close proximity to the firearm. We reject his arguments and AFFIRM.
I. BACKGROUND
On May 31, 2017, officers of the Mercer County Sheriff’s Office saw a stolen vehicle in
the driveway of Heather King’s house and a motorcycle approaching the house with Ms. King on
the back. Presentencing Report (PSR) at 3, ¶ 2 (Page ID #76). Vaughn was driving the motorcycle. No. 18-5772, United States v. Vaughn
Id. Although the officers asked him to stop, he continued driving after indicating to the officers
that he had to turn around in order to enter the driveway. Id. Vaughn drove the motorcycle over
a hill and out of the officers’ sight. Id. at ¶¶ 2-3.
The officers caught up to Vaughn 150 yards away, where they found him heading back
toward King’s house. Id. at ¶ 3. After the stop, King told the officers that there was a gun in the
backpack that was hanging from the back of the motorcycle; Vaughn, unprompted, told the officers
that he bought the firearm for King. Id. The officers arrested Vaughn, given his status as a
convicted felon. Id.
Upon questioning by the officers, King revealed that Vaughn drove past the officers to
dispose of drugs and that he threw a small can off the motorcycle before the officers caught up to
them. Id. at ¶ 4. King took the officers to the can, which contained three bags of methamphetamine
weighing a total of three grams, “25 small baggies, pills, three syringes and a digital scale.” Id.
Vaughn pleaded guilty to a one-count indictment that charged a violation of 18 U.S.C.
§ 922(g)(1), for possessing a firearm after having been convicted of a felony. R. 22 (Minute
Entry); R. 29 (Judgment at 1) (Page ID #57). He admitted that he possessed the firearm found on
the motorcycle but objected to the proposed four-level sentencing enhancement for possessing a
firearm in connection with another felony offense. PSR at 21.
At sentencing, Vaughn denied that the drugs were his but did not address whether he threw
the drugs from the motorcycle. R. 35 (Sentencing Tr. at 6, 8–9) (Page ID #107, 109–10). He
argued that the enhancement was inapplicable because the drugs were not found near the gun. Id.
at 6. The district court overruled Vaughn’s objection and applied the enhancement, resulting in a
2 No. 18-5772, United States v. Vaughn
Guidelines range of 41 to 51 months of imprisonment. Id. Vaughn’s counsel then argued for
leniency because of Vaughn’s age, health problems, and never-treated drug addictions. Id. at 7–8
(Page ID #108–09). The district court sentenced Vaughn to 41 months of incarceration with a
recommendation that he participate in a substance-abuse treatment program, obtain his GED, and
receive vocational training. Id. at 11–13 (Page ID #112–14). Vaughn now appeals.
II. ANALYSIS
Vaughn challenges his sentence on three grounds. First, he argues that the district court
erred in applying the enhancement for possessing a firearm in connection with another felony
offense, U.S.S.G. § 2K2.1(b)(6)(B). Second, he argues that his sentence was procedurally
unreasonable because the district court did not consider the 18 U.S.C. § 3553(a) factors. Finally,
he argues that his sentence was substantively unreasonable. All of Vaughn’s arguments fail.
A. The Sentencing Enhancement
We begin with the sentencing enhancement. We review the district court’s factual
determinations for clear error. See United States v. Susany, 893 F.3d 364, 366–67 (6th Cir. 2018).
Because the Guidelines provision at issue is the § 2K2.1(b)(6)(B) firearm enhancement, we do not
apply our usual de novo standard of review to the district court’s legal conclusions. Rather, we
“accord due deference to the district court’s determination that the firearm was used or possessed
in connection with the other felony.” United States v. Shanklin, 924 F.3d 905, 919 (6th Cir. 2019)
(quoting United States v. Seymour, 739 F.3d 923, 929 (6th Cir. 2014)).
The district court applied a four-level sentencing enhancement for possessing a firearm in
connection with another felony. R. 35 (Sentencing Tr. at 6) (Page ID #107). The other felony in
3 No. 18-5772, United States v. Vaughn
Vaughn’s case was drug trafficking, which, although uncharged, was evidenced by the drug
packaging paraphernalia—a digital scale and 25 small baggies—found with the three bags of
methamphetamine weighing three grams. PSR at 3, ¶ 4. The Guidelines commentary says that,
“in the case of a drug trafficking offense,” the enhancement applies when “a firearm is found in
close proximity to drugs, drug-manufacturing materials, or drug paraphernalia” because “the
presence of the firearm has the potential of facilitating” the drug trafficking. U.S.S.G. § 2K2.1
cmt. n.14(B).
Vaughn argues that the district court erred in applying the enhancement to him because the
firearm was found over 150 yards from the drugs. Appellant Br. at 13. The district court correctly
applied the enhancement because the firearm and drugs “were in the same proximity until [the
drugs] were thrown off the motorcycle.” R. 35 (Sentencing Tr. at 6) (Page ID #107). Vaughn
pleaded guilty to possession of the gun and did not dispute that he threw the drugs from the
motorcycle. He denied possession of the drugs at the sentencing hearing, but he does not argue on
appeal that the district court erred by implicitly finding that the drugs were his. His sole argument
on appeal as to the enhancement is that it was inapplicable because of the distance between the
firearm and the drugs, and the district court did not err in rejecting that argument. The district
court’s application of the four-level enhancement was proper, and its calculation of the Guidelines
range was correct.
B. Procedural Reasonableness
Vaughn next argues that his sentence was procedurally unreasonable because the district
court failed to consider the factors listed in 18 U.S.C. § 3553(a). A sentence is procedurally
4 No. 18-5772, United States v. Vaughn
unreasonable if a district court “fail[s] to consider the § 3553(a) factors.” Gall v. United States,
552 U.S. 38, 51 (2007). The district court must address the parties’ arguments in a manner
sufficient to “satisfy the appellate court that [the sentencing judge] has considered [those]
arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita
v. United States, 551 U.S. 338, 356 (2007); see also United States v. Gapinski, 561 F.3d 467, 474
(6th Cir. 2009) (the sentencing court must address “nonfrivolous” arguments raised by the parties).
We do not require a district court to engage in a “ritual incantation” of the § 3553(a) factors,
however. United States v. Williams, 436 F.3d 706, 708–09 (6th Cir. 2006) (quoting United States
v. Johnson, 403 F.3d 813, 816 (6th Cir. 2005)). Rather, we require only that “the district court
articulate[] its reasoning sufficiently to permit reasonable appellate review.” Id. at 709. The
district court did so here.
Aside from objecting to the four-level enhancement, the sole sentencing argument
presented to the district court by Vaughn was the argument that Vaughn’s age, health problems,
and addictions called for leniency. R. 35 (Sentencing Tr. at 7–8) (Page ID #108–09). Although
the district court did not explicitly say that it sentenced Vaughn at the bottom of the Guidelines
range because of those arguments, it is clear that it considered those arguments in formulating
Vaughn’s sentence. It sentenced Vaughn to the lowest possible Guidelines sentence, indicating it
considered his age and health. Id. at 11 (Page ID #112). In addition, the district court
recommended a drug treatment program and education and vocational training, and it impressed
upon Vaughn the importance of pursuing those opportunities; it clearly heard and was influenced
by Vaughn’s argument about his untreated addictions. Id. at 11–13 (Page ID #112–14). On the
5 No. 18-5772, United States v. Vaughn
other hand, the district court considered Vaughn’s criminal history. It asked Vaughn numerous
questions about the circumstances of a prior kidnapping conviction that involved a knife. Id. at 9–
11 (Page ID #110–12). It is clear that the district court weighed Vaughn’s arguments for leniency
against the needs of the community for protection and deterrence. The district court was not
required to recite each § 3553(a) factor before imposing a sentence. There was no procedural
error.
C. Substantive Reasonableness
Finally, Vaughn argues that his sentence was substantively unreasonable. A substantively
unreasonable sentence “is ‘greater than necessary’ to achieve the sentencing goals set forth in 18
U.S.C. § 3553(a).” United States v. Tristan-Madrigal, 601 F.3d 629, 632–33 (6th Cir. 2010). An
unreasonable sentence might occur if “the district court selects the sentence arbitrarily, bases the
sentence on impermissible factors, fails to consider pertinent § 3553(a) factors or gives an
unreasonable amount of weight to any pertinent factor.” Id. at 633 (quoting United States v. Walls,
546 F.3d 728, 736 (6th Cir. 2008)). We review substantive reasonableness challenges for abuse
of discretion and presume a within-Guidelines sentence to be reasonable. United States v. Roberts,
919 F.3d 980, 992 (6th Cir. 2019); United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en
banc).
Vaughn cannot clear the high hurdle of showing that it was an abuse of discretion for the
district court to impose a 41-month sentence, the lowest possible sentence within the applicable
Guidelines range. He argues that “no one was injured and a gun was found 150 yards apart from
a minimal amount of narcotics,” Appellant Br. at 21, but ignores his attempt to discard evidence
6 No. 18-5772, United States v. Vaughn
of drug trafficking and his long and occasionally violent criminal history. The district court
considered appropriate factors and did not give an unreasonable amount of weight to any one
factor. Vaughn’s substantive reasonableness challenge fails.
III. CONCLUSION
For the reasons stated above, we AFFIRM.