United States v. Nicolas Drake

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 25, 2021
• Docket: 20-4217
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0478n.06

Case No. 20-4217

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED ) Oct 25, 2021 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE NORTHERN NICOLAS DRAKE, ) DISTRICT OF OHIO ) Defendant-Appellant. )

Before: CLAY, GIBBONS, and BUSH, Circuit Judges.

JOHN K. BUSH, Circuit Judge. Nicolas Drake appeals his 57-month prison sentence,

imposed after he pleaded guilty to one count of felon in possession of a firearm and ammunition,

in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He contends that his sentence is substantively

unreasonable because the district court did not properly consider mitigating factors and gave too

much weight to his criminal history in reaching its decision. We affirm Drake’s sentence.

I.

On November 5, 2019, Drake was the front-seat passenger in a car that was pulled over by

the Cleveland police for failing to yield at a stop sign. During the traffic stop, the officer reported

smelling marijuana and requested backup. Drake then fled the scene, leaving behind a bag on the

car’s floor. The driver consented to a search of the vehicle, and officers discovered that the bag Case No. 20-4217, United States v. Drake

contained a Smith & Wesson Model M&P9 Shield 9 millimeter caliber semiautomatic pistol

loaded with six rounds of ammunition. Drake later admitted that the pistol was his.

Drake was indicted for and pleaded guilty to one count of felon in possession of a firearm

and ammunition. At his plea hearing, Drake acknowledged that he was aware of his prior

conviction and knew he was prohibited from possessing a firearm.

At his sentencing hearing, Drake objected to several convictions listed in the presentence

report. The district court ruled the objections moot, because the convictions did not affect Drake’s

criminal history score, and stated that the convictions would not be used as a basis for Drake’s

sentence. After applying a two-level enhancement under U.S.S.G. § 2K2.1(b)(4)(A) for the

firearm being stolen1 and a three-level reduction under U.S.S.G. § 3E1.1 for acceptance of

responsibility, the district court found Drake’s total offense level was 19 and his criminal history

category was IV, resulting in a guidelines range of 46 to 57 months. It then weighed the sentencing

factors listed in 18 U.S.C. § 3553(a) and imposed a sentence of 57 months’ imprisonment,

followed by three years of supervised release, and a $100 special assessment. Drake timely

appealed his sentence.

II.

We review Drake’s sentence for substantive reasonableness under an abuse-of-discretion

standard. Gall v. United States, 552 U.S. 38, 51 (2007). We find an abuse of discretion when we

are “left with a definite and firm conviction that the district court committed a clear error of

judgment.” United States v. Perez-Rodriguez, 960 F.3d 748, 753 (6th Cir. 2020) (quoting Coach,

Inc. v. Goodfellow, 717 F.3d 498, 505 (6th Cir. 2013)). “A sentence may be considered

1 The Presentence Report noted that the firearm was stolen but did not apply the enhancement. Prior to sentencing, counsel for the government discussed this with defense counsel and the probation officer who authored the report. All agreed that the enhancement was appropriate.

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substantively unreasonable when the district court selects a 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.” United States v. Brown, 501 F.3d 722, 724 (6th Cir.

2007) (citing Rita v. United States, 551 U.S. 338, 356–57 (2007)). Under § 3553(a), a sentence

must be “sufficient, but not greater than necessary, . . . to reflect the seriousness of the offense, to

promote the respect for the law, and to provide just punishment for the offense.” See United States

v. Vowell, 516 F.3d 503, 512 (6th Cir. 2008).

Drake’s 57-month sentence is within the guidelines range and thus presumptively

reasonable. See Kimbrough v. United States, 552 U.S. 85, 109 (2007) (“[T]he Commission’s

recommendation of a sentencing range will reflect a rough approximation of sentences that might

achieve § 3553(a)’s objectives.”) (quoting Rita, 551 U.S. at 350); see also Vowell, 516 F.3d 503

at 509 (stating that sentences within the Sentencing Guidelines’ range are presumptively

reasonable). However, Drake contends that the district court failed to consider his mitigating

factors—including his mental health conditions, acceptance of his responsibility, reason for

unlawfully possessing the firearm, remorse, substance abuse, and lack of guidance as a youth—in

imposing his sentence. He also argues that the district court relied too heavily on his juvenile

criminal history and an altercation that occurred while Drake was in pretrial detention.

We find Drake’s first contention unpersuasive. Before imposing Drake’s sentence, the

district court explicitly noted Drake’s problematic upbringing and health-related issues. (Sent. Tr.,

R. 40, Pg. ID 239 (“I will note for the record in considering his sentence that I obviously know he

has had a difficult upbringing, raised by parents that may be both addicted, and also in difficult

economic circumstances. He does have mental health related issues . . . [and] health issues related

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to asthma and diabetes.”).) The district court also acknowledged Drake’s “long history with

drugs.” (Id.) Drake received a three-level reduction for his acceptance of responsibility as well.

The record also does not support Drake’s argument that the district court gave improper

weight to Drake’s juvenile criminal history or altercation while in custody. The district court

pointed to the short amount of time between Drake’s March 2019 release from custody and the

present offense in November 2019 as a basis for Drake’s sentence. It also discussed Drake’s

criminal history with firearms as both a juvenile and an adult, specifically a 2016 conviction of

abduction, attempted felonious assault with a firearm, and attempted burglary. See, e.g., United

States v. Sexton, 889 F.3d 262, 266 (6th Cir. 2018) (discussing the defendant’s history of similar

crimes and its effect on the community). It stated that Drake fled after he committed his present

offense, “which makes it even worse.” (Sent. Tr., R. 40, Pg. ID 240.) Further, it noted Drake’s

altercation while in custody as “another” reason for the sentence, even though the specific

aggressor of the fight had not been identified. (Id.) And then it deliberately chose a sentence

within the Sentencing Guidelines, finding that “a lengthy sentence is required.” (Id.) That is, the

district court selected a sentence that it believed fit Drake’s crime and provided sufficient reasons

to justify it. See Vowell, 516 F.3d at 512. This decision was not an abuse of discretion.

See 18U.S.C. § 3553(a); Gall, 552 U.S. at 59–60 (instructing the Court of Appeals to give “due

deference to the [d]istrict [c]ourt’s reasoned and reasonable decision that the § 3553(a) factors, on

the whole, justified the sentence.”).

III.

For the foregoing reasons, we affirm Drake’s sentence.

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