UNITED STATES of America, Plaintiff-Appellee, v. Paul BUCHANAN, Defendant-Appellant, 449 F.3d 731

The court delivered a PER CURIAM opinion. SUTTON, J. (pp. 735-741), delivered a separate concurring opinion. OPINION PER CURIAM. Paul Buchanan pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). After his sentencing hearing, the district court sentenced him to 77 months of incarceration and 3 years of supervised release. Buchanan appeals. Because the district court did not err in calculating his advisory sentence under the guidelines and because the sentence is a reasonable one, we affirm. I.

On May 5, 2004, Memphis, Tennessee police officers noticed two people “sitting down on the side of a residence which was a known drug location.” JA 47. One of the individuals was Paul Buchanan. When the officers stopped their vehicle in front of the house, Buchanan “took off his shirt, dropped it on the steps where he was sitting” and approached the officers. Id. Without any prompting, Buchanan volunteered to the officers “that he was staying there and getting high.” Id. Upon hearing this, the officers detained Buchanan and searched the area. Under Buchanan’s shirt, they discovered a loaded .38 caliber revolver.

On July 20, 2004, a federal grand jury indicted Buchanan for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Buchanan pleaded guilty to this charge on November 24, 2004. The presentence report set Buchanan’s base offense level at 24 because he had committed the felon-in-possession crime “subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.” JA 48; see U.S.S.G. § 2K2.1(a)(2). Buchanan’s 23 criminal-history points gave him a criminal-history category of VI.

At the sentencing hearing on March 31, 2005, the district court adopted these calculations and, with the government’s blessing, adjusted the offense level downward by three levels for Buchanan’s acceptance of responsibility. After reducing the offense level to 21, the court determined that the revised guidelines sentencing range was 77 to 96 months. After it heard testimony from Buchanan and his pastor, the court considered the factors in 18 U.S.C. § 3553(

a) to determine an appropriate sentence. Weighing a variety of concerns to “consider[ ] Mr. Buchanan as an individual,” JA 42, the court determined that the guidelines sentence in this case was appropriate “given [Buchanan’s] criminal history, given the need to deter crime [and] given the seriousness of the offense,” JA 41^42. II. In United States v.

Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court’s remedial opinion rendered the guidelines “effectively advisory,” requiring sentencing courts “to consider Guidelines ranges” but “permit[ting] the court[s] to tailor the sentence in light of other statutory concerns as well,” id. at 245, 125 S.Ct. 738. In determining Buchanan’s sentence, the district court properly followed Booker’s mandate.

The court recognized the advisory nature of the guidelines, see JA 38-39 (“I am not obligated to follow [the guidelines], but I am obligated to consider them .... before I consider any other sentence.”), and stated that its task was to give Buchanan an appropriate sentence in light of the factors identified in § 3553(a). The court explained its understanding of the tension “between uniformity of sentenced] so that people are treated alike” and the fact “that people are different and every one’s situation is unique.” JA 39.

After properly calculating the guidelines range (77 to 96 months), the court analyzed that range in light of Buchanan’s individual circumstances “to determine whether a Guideline sentence in this case” was appropriate. JA39. After considering “the nature and circumstances of the offense,” § 3553(a)(1), and “the need for the sentence imposed ... to reflect the seriousness of the offense [and] to promote respect for the law,” § 3553(a)(2), the court noted that Buchanan’s “offense is very serious.... [T]he defendant was high in possession of a firearm....

And it would have been very easy for someone to have been killed or injured in those circumstances, because he wasn’t himself. I’ve heard enough from Mr. Buchanan today to believe that he would not willingly hurt someone. But when you are not yourself, when you are drunk or high, it is very easy for someone to be hurt when you possess a firearm. So the offense is a very serious one. One needs to promote respect for the law and one needs a significant sentence in the face of a serious offense to do that.” JA 39-40.

Reflecting upon the need “to afford adequate deterrence to criminal conduct,” § 3553(a)(2)(B), the court noted that “there are people all over this community who are doing exactly what Mr. Buchanan was doing. That is to say, they are felons in possession of firearms. They are using drugs illegally and it seems to be very hard to deter them.” JA 40. To account for the need “to protect the public from further crimes of the defendant,” § 3553(a)(2)(C), the court analyzed the “likelihood of recidivism” in the context of Buchanan’s “extensive criminal history,” JA 40.

Looking “behind the criminal history — in other words, not to be driven by the points,” the court found “a history of violence and drug use.” JA 41. The court explained that this history did “not predict well for protecting the public from further crimes of this defendant,” id.; although the court believed “the defendant does not want to commit further crimes,” it considered the issue of “whether he can overcome his addiction and his history” to be “an open question,” id.

To consider the need “to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner,” § 3553(a)(2)(D), the court noted that it believed Buchanan “could benefit from intensive drug treatment .... in a prison setting” but that “it is a wash as far as whether it is three years, or six years, or ten” because “[h]e will benefit as much in three years as he will in ten years from that perspective,” JA 41. “[Considering and weighing all those factors,” the judge determined that, with the exception of § 3553(a)(2)(D), they “weigh in favor of a Guideline sentence.” JA 41.

He noted that if he had not heard from Buchanan and his pastor, he “would have sentenced Mr. Buchanan to the maximum [he] could have sentenced him under the law because of his criminal history and the nature of the offense.” JA 42. But “having heard from them and trying to resolve [the] tension between uniformity and considering the individual,” the judge said he “believe[d] [Buchanan] wants to turn his life around” and he believed that Buchanan could do so. JA 42. In our view, the court demonstrated a model approach to sentencing in the aftermath of Booker.

The judge properly calculated the guidelines range, then carefully considered the appropriateness of that range as applied to the defendant before him in light of the concerns encompassed by the statutory factors. Balancing competing interests, goals and individual characteristics, the court found the recommended guidelines range to be appropriate and chose to sentence Buchanan at the bottom of that range to “impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth” in the § 3553(a)(2) factors. 18 U.S.C. § 3553(a).

In challenging that conclusion, Buchanan principally argues that the district court “improperly interpreted the holding of Booker to state that a sentence within the Guideline range was presumptively reasonable” and “treated the Guidelines as presumptively reasonable.” Buchanan Br. at 14. To the extent Buchanan means to say that trial judges may not give an irrebuttable presumption of reasonableness to a guidelines sentence, he is right. Such an approach cannot be squared with Booker. See, e.g., United States v.

Webb, 403 F.3d 373, 385 n. 9 (6th Cir.2005) (“[W]e [] decline to hold that a sentence within a proper Guidelines range is per-se reasonable. Such a per-se test is ... inconsistent with the Supreme Court’s decision in Booker, as such a standard would effectively re-institute mandatory adherence to the Guidelines.”) (internal quotation marks and citation omitted); United States v. Crosby, 397 F.3d 103, 115 (2d Cir.2005) (same). But that, quite clearly, is not what the district court did.

See JA 38-39 (noting that the guidelines were not binding on the court and noting that after calculating the advisory guidelines range the court’s task is “to determine whether a Guideline sentence in this case” is appropriate in light of Buchanan’s individual circumstances). To the extent Buchanan means to argue that courts of appeals may not give a properly calculated guidelines sentence a “rebuttable presumption of reasonableness,” he is wrong, as a recent decision of the court confirms. See United States v. Williams, 436 F.3d 706, 708 (6th Cir.2006).

Buchanan also complains that the court imposed an unreasonable sentence that was “greater than necessary to punish” his actions. Buchanan Br. at 7. He claims that the court’s “characterization of the facts is contrary to the factual record of the nature of the defendant’s offense” because it described the offense as a “very serious one.” Id. at 14. This argument also lacks merit.

Buchanan argues that “no violence occurred or was implied” during his interaction with the officers at the time of his arrest and that he “did not use the gun to rob or assault people.” Id. at 15; see also id. at 7 (Buchanan “was found to be in possession of the firearm while he was doing nothing more than sitting on the porch of a house with his girlfriend, ingesting drugs.”).

But the district court recognized as much and adequately supported its conclusion that possessing a loaded gun while “high” was indeed “very serious” because of the potential danger such behavior poses to society, see JA 39 (“[WJhen you are not yourself, when you are drunk or high, it is very easy for someone to be hurt when you possess a firearm.”), not because Buchanan in fact threatened anyone. III. For these reasons, we affirm.