NOT RECOMMENDED FOR PUBLICATION
                               File Name: 17a0040n.06

                                         No. 15-4407


                         UNITED STATES COURT OF APPEALS                            FILED
                              FOR THE SIXTH CIRCUIT                           Jan 18, 2017
                                                                          DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                              )
                                                       )
       Plaintiff-Appellee,                             )
                                                       )     ON APPEAL FROM THE
v.                                                     )     UNITED STATES DISTRICT
                                                       )     COURT FOR THE NORTHERN
WILLIE L. MONROE,                                      )     DISTRICT OF OHIO
                                                       )
       Defendant-Appellant.                            )                 OPINION
                                                       )
                                                       )



       BEFORE:        MERRITT, MOORE, and STRANCH, Circuit Judges.

       JANE B. STRANCH, Circuit Judge.            Willie Monroe pleaded guilty to attempted

robbery and brandishing a firearm during a crime of violence, in violation of 18 U.S.C.

§§ 1951(a) and 924(c), respectively. He was sentenced to 96 months for Count 1, a 57-month

upward variance from the Guidelines range, and 84 months for Count 2. In this appeal, Monroe

challenges the length of his sentence.   For the following reasons, we AFFIRM Monroe’s

sentence.

                                 I.       BACKGROUND

       On September 23, 2014, Willie Monroe and two others attempted to rob a Family Dollar

store in Cleveland Heights, Ohio. Monroe carried a firearm during the attempted robbery, which

he brandished at the store employees. During the incident, one of the store employees ran to an

office in the rear of the store, where he called 911. Monroe and the others chased another
No. 15-4407
United States v. Monroe

employee through the store, until the employee ran out a back door and hid in an alley. Monroe

and his co-conspirators left the store without taking any money or merchandise. Monroe was

arrested on October 1, 2014 pursuant to a warrant for failure to appear in a different case. An

Indictment was filed for the offense in the instant case on November 18, 2014.

       Monroe pleaded guilty to one count of interference with commerce by robbery and aiding

and abetting, in violation of 18 U.S.C. § 1951(a), and one count of brandishing a firearm during

and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). Under the plea

agreement, the parties agreed that the applicable offense level was 22: 20 points for the base

offense level, plus 2 points for physical restraint of a person to facilitate the commission of the

offense under § 2B3.1(b)(4)(B) of the Guidelines. The Government agreed to recommend a

three level reduction based on Monroe’s acceptance of responsibility, provided that he continue

to accept responsibility pending sentencing. In the plea agreement, Monroe agreed to waive his

right to appeal except as to any sentence exceeding the maximum of the Guidelines

imprisonment range. The parties contemplated cooperation and intended to address the value of

that cooperation at sentencing.

       The Presentence Investigation Report (PSR) recommended an offense level of 17,

following a three-level reduction for acceptance of responsibility, and a Criminal History

Category VI for Count 1, with a Guidelines range of 51-63 months. The Guideline sentence for

Count 2 was 84 months. This calculation omitted the two-level enhancement for physical

restraint of a person in facilitation of the offense, as included in the plea agreement.

       The initial sentencing hearing was held on September 30, 2015. The district court noted

the PSR’s recommended offense level of 17 and agreed with the Government that the

§ 2B3.1(b)(4)(B) enhancement applied, raising the offense level to 19.            At this point, the


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Government notified the court that it had received information from officials at Lake County

Jail, where Monroe was housed, alleging that Monroe had attempted to escape. The Government

stated that this information affected its substantial-assistance recommendation. Monroe denied

that he was making an escape attempt, and also argued that the value of his substantial assistance

merited a full five-level reduction as originally contemplated by the parties. In response to the

information presented, the court recessed the hearing for the parties to investigate the matter at

the jail further, but noted that Monroe should be on notice for a “possible upward departure” for

obstruction of justice or “consideration of an upward variance.”

       The court reconvened the sentencing hearing on October 21, 2015. The Government

called Detective John Kelley of the Lake County Sheriff’s Office to testify to the incident.

Kelley was called to the jail to investigate an allegation of assault made by Monroe. While

searching Monroe’s cell as part of this investigation, Kelley found damage to the window,

including “pry marks” on the frame and what he characterized as “gouge marks,” as well as a

“shower grate that was wrapped in wax paper.” Kelley suspected that these were indications of a

possible attempt to escape. When Kelley questioned Monroe about the window and shower

grate, Monroe told him that he was filing it down to use as a weapon to defend himself from

other inmates.    Kelley also testified that Monroe’s prison file contained notes reflecting

Monroe’s concern for his safety, fears about other inmates, and requests to be removed from the

general population.

       The district court ultimately determined that the evidence did not meet the standard of

proof necessary to impose the upward adjustment for obstruction of justice for an attempted

escape. After applying the Government’s recommended three-level reduction for substantial

assistance, the court determined that Monroe’s adjusted offense level was 16 with a Criminal


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United States v. Monroe

History Category VI, which corresponded to a 46-57 month Guidelines range for Count 1 in

addition to 84 months for Count 2. The court ultimately imposed a term of 96 months for Count

1, an upward variance of 57 months, resulting in a total term of 180 months.

       In making this determination, the court reviewed the § 3553(a) factors, highlighting the

“seriousness of this particular conduct in this particular offense,” which the court called a

“terrifying, strong-armed robbery, threatening victims with a firearm.” The court also indicated

that though Monroe did not qualify as a career offender under the Sentencing Guidelines, it

found that Monroe’s history and characteristics, including his previous juvenile and adult

convictions, made him a “career offender by any other sense of the word or by any other

interpretation.”   Though acknowledging Monroe’s traumatic childhood, including an early

exposure to drugs and violence, as well as his employment, drug abuse, and family

circumstances, the court concluded that the sentence was appropriate “for the protection of the

public” as Monroe “pose[d] a significant risk to society because of his violent nature.” The

district court determined that any sentencing disparities between Monroe and defendants with

similar records and conduct would be triggered by Johnson v. United States, 135 S. Ct. 2551

(2015), where the Supreme Court invalidated the residual clause of the Armed Career Criminal

Act, 18 U.S.C. § 924(e), which is identical to the residual clause in the Career Offender

guideline, § 4B1.1. The district court also stated that even the 180 month sentence may have

been insufficient in light of Monroe’s record and that if not for his cooperation with the

Government, his “sentence should easily have been in the 20-year plus range.”

       Monroe appeals his sentence, and argues that the court abused its discretion in imposing a

57-month upward variance, which he states is substantively unreasonable. Monroe argues that:

the district court improperly considered factors that had already been incorporated into the


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United States v. Monroe

Guidelines calculation; and, the court’s determination that the variance was necessary to counter

disparities between Monroe and defendants subject to the ACCA’s residual clause before

Johnson was itself an unwarranted disparity in violation of § 3553(a)(6).

                                     II.       ANALYSIS

       We review the substantive reasonableness of a district court’s sentence for an abuse of

discretion. United States v. Gall, 552 U.S. 38, 51 (2007). “The essence of a substantive-

reasonableness claim is whether the length of the 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). Under this deferential standard, a sentence is substantively

unreasonable if “the district court chooses the sentence arbitrarily, bases the sentence on

impermissible factors, or gives an unreasonable amount of weight to any pertinent factor.”

United States v. Cochrane, 702 F.3d 334, 345 (6th Cir. 2012) (quoting United States v. Conatser,

514 F.3d 508, 520 (6th Cir. 2008)). We examine “the totality of the circumstances, including the

extent of any variance,” and recognize that “a major departure should be supported by a more

significant justification than a minor one.” Gall, 552 U.S. at 50-51. Though a Guidelines-range

sentence is “presumed reasonable, a sentence outside the Guidelines range is not presumed

unreasonable.” United States v. Elmore, 743 F.3d 1068, 1072 (6th Cir. 2014) (quoting United

States v. Christman, 607 F.3d 1110, 1118 (6th Cir. 2010)). The question before us is whether the

district court’s justification is “sufficiently compelling to warrant the extent of the variance,

taking into account the deference owed to the sentencing judge.” United States v. Nunley, 559 F.

App’x 470, 473 (6th Cir. 2010). The fact that we “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.


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       Monroe first argues that the court’s stated rationale for the upward variance improperly

double-counted factors already incorporated into the appropriate guideline range. Specifically,

Monroe asserts that the court put undue weight on his criminal history without accounting for his

changed circumstances, such as his employment or cooperation with law enforcement, or other

mitigating factors from Monroe’s troubled past.       This evaluation of the § 3553(a) factors,

Monroe argues, focused on one sentencing factor to the exclusion of others.

       At the outset, we note that the variance in this case is substantial, 70% above the

Guideline range. See United States v. Stoutermire, 516 F. App’x 583, 586 (6th Cir. 2013)

(finding that a variance of approximately 50% greater than the end of the guidelines range was

“substantial”). In its justification, the court focused primarily on the seriousness of the offense,

the need to protect the community, and the need for deterrence, all of which are proper

considerations under § 3553(a). See Nunley, 559 F. App’x at 474; United States v. Vowell,

516 F.3d 503, 512 (6th Cir. 2008). The court particularly highlighted Monroe’s six juvenile and

eleven adult convictions, including multiple robbery, firearm and drug convictions, and prior

periods of incarceration that had not deterred Monroe from subsequent criminal activity. The

court stated its belief that this history of violence and continued pattern of offenses required a

lengthy sentence “for the protection of the public [and] adequate deterrence.”

       Contrary to Monroe’s assertions, the record shows that the court also considered other

§ 3553(a) factors, including his history, characteristics, and cooperation with the Government,

but determined that a substantial variance was necessary.         The court’s evaluation did not

improperly double-count factors already calculated into the Guidelines range, as Monroe alleges,

but rather reviewed its considerations in balancing the factors under § 3553(a). See United States

v. Farrow, 198 F.3d 179, 193 (6th Cir. 1999) (finding that “impermissible ‘double counting’


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United States v. Monroe

occurs when precisely the same aspect of a defendant’s conduct factors into his sentence in two

separate ways,” such as by using the conduct to establish both an elevated base offense level and

a four-level enhancement under the Guidelines). Though we may have performed this balance

differently, that is not sufficient to find that the district court abused its discretion in imposing an

upward variance.

       Monroe also argues that the district court “inappropriately concerned itself with changes

in Supreme Court jurisprudence when considering disparities between Monroe’s sentence and

those of similarly situated defendants.” Monroe asserts that the court’s sentence itself created

such a disparity, as the court failed to consider whether pre-Johnson sentences could be corrected

through direct appeal or habeas review and that these “pre-Johnson sentences may . . . be

lowered [while] Monroe’s sentence would remain artificially elevated.” But read in context, the

court’s statements do not reflect an attempt to impose a pre-Johnson sentence, which would be

improper. Instead, the statements reflect its determination that it did not find any disparities

between Monroe’s sentence and those imposed on similarly situated defendants, except for

possibly those defendants previously sentenced as career offenders prior to the Supreme Court’s

decision. The court’s statement makes clear that it understood Monroe’s sentence as lower than

these pre-Johnson sentences. Indeed, the preliminary PSR set Monroe’s base offense level at

32 under the career offender Guideline, which was subsequently changed to 20 in the final PSR

following the Supreme Court’s decision in Johnson. The court acknowledged that Monroe is

“not an armed career in the words of the guidelines or the sentencing statute,” but stated its belief

that he was a “career offender by any other sense of the word or by any other interpretation.”

This does not reflect an attempt to mitigate the disparity between Monroe’s sentence and pre-

Johnson sentences, nor create a disparity between Monroe and other defendants sentenced post-


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Johnson. Rather, this statement highlights the court’s determination that the circumstances of

Monroe’s offense, as well as his history of criminality, called for a lengthy sentence. We do not

find that the court abused its discretion, and hold that Monroe’s sentence is not substantively

unreasonable.


                                III.       CONCLUSION

       For the reasons explained above, we AFFIRM Monroe’s sentence.




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