NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0487n.06
                                                                                          FILED
                                           No. 11-5628
                                                                                     May 09, 2012
                           UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                           )
                                                    )
       Plaintiff-Appellee,                          )
                                                    )
v.                                                  )       ON APPEAL FROM THE
                                                    )       UNITED STATES DISTRICT
CLEO DALE,                                          )       COURT FOR THE WESTERN
                                                    )       DISTRICT OF TENNESSEE
       Defendant-Appellant.                         )
                                                    )




       BEFORE: BOGGS and GRIFFIN, Circuit Judges; BARZILAY, Judge.*


       PER CURIAM. Defendant Cleo Dale appeals his sentence imposed by the district court

following his guilty plea to charges of being a felon in possession of a firearm and possession with

intent to distribute marijuana.

       A presentence report was prepared, which showed that Dale, a man in his fifties, had

committed several serious crimes while apparently dealing with a cocaine addiction. However, for

more than ten years since his last imprisonment, Dale had no further arrests or convictions and had

been working at more than one job. Nevertheless, a search of his apartment revealed that Dale was

in possession of a loaded pistol, which he stated that he found, as well as a large quantity of

marijuana, packaged in individual baggies. The sentencing guidelines range was calculated at 110

       *
        The Honorable Judith M. Barzilay, Senior Judge for the United States Court of International
Trade, sitting by designation.
No. 11-5628
United States v. Dale

to 137 months, with 120 months being the statutory maximum on the charge of being a felon in

possession of a firearm.

        At the sentencing hearing, counsel for Dale argued that a sentence in the range of 41 to 51

months of imprisonment would be reasonable. Counsel argued that Dale’s criminal history was

overrepresented because all of his previous convictions were due to a cocaine addiction that Dale

had overcome. The district court acknowledged Dale’s recent law-abiding lifestyle prior to this

arrest, but nevertheless noted that the crimes were serious ones and that it was bound to impose a

sentence that would deter similar crimes. The court sentenced Dale to 68 months of imprisonment.

Dale argues on appeal that his sentence is unreasonable because the district court overemphasized

some sentencing factors and gave too little weight to other factors.

        We review a sentence for procedural and substantive reasonableness under an abuse-of-

discretion standard. Gall v. United States, 

, 51 (2007). Dale argues that the district court

abused its discretion by giving too little weight to his age, citing United States v. Holt, 

,

1004 (7th Cir. 2007), where a below-guidelines sentence based on the defendant’s age was upheld.

However, this argument is unavailing here because the district court gave Dale a below-guidelines

sentence and specifically stated that the result would have been different had Dale been younger.

Dale has also cited United States v. Robertson, 

, 878 (7th Cir. 2011), for the proposition

that the district court here gave too little weight to Dale’s rehabilitative efforts. Robertson is

distinguishable, however, because that case involved a defendant whom the government had delayed

in charging and who rehabilitated himself after committing the crime for which he was being

sentenced. The Seventh Circuit upheld the judgment of the district court in the face of a challenge

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No. 11-5628
United States v. Dale

by the government. That case is no authority for overturning a district court’s judgment that simply

chose not to vary below the guideline range by as much as the defendant desired. In addition, Dale’s

counsel points to Dale’s rehabilitation following his earlier convictions, but that argument is

undercut by Dale’s commission of the instant offenses.

       We give deference to sentencing decisions due to trial judges’ experience in sentencing.

United States v. Poynter, 

, 351-52 (6th Cir. 2007). The fact that the court could have

imposed a shorter sentence does not demonstrate unreasonableness. United States v. Smith, 

, 478 (6th Cir. 2008). Here, no abuse of discretion in the consideration of the sentencing factors

has been demonstrated. Defendant would have preferred a sentence in the range of 41 to 51 months,

but the district court’s substantially below-guidelines sentence of 68 months is reasonable.

Accordingly, we affirm the district court’s judgment.




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