NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0005n.06

                                           No. 12-1100                                 FILED
                                                                                    Jan 02, 2013
                             UNITED STATES COURT OF APPEALS                   DEBORAH S. HUNT, Clerk
                                  FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                           )
                                                    )
       Plaintiff-Appellee,                          )
                                                    )
v.                                                  )       ON APPEAL FROM THE
                                                    )       UNITED STATES DISTRICT
WILLIAM RASHAAD RICHMOND-                           )       COURT FOR THE WESTERN
HAIRSTON,                                           )       DISTRICT OF MICHIGAN
                                                    )
       Defendant-Appellant.                         )
                                                    )




       BEFORE: MARTIN, SUHRHEINRICH, and GIBBONS, Circuit Judges.


       PER CURIAM. William Rashaad Richmond-Hairston, who is represented by counsel,

appeals his sentence imposed following his guilty pleas to charges of possession of a firearm by a

felon and possession with the intent to distribute marijuana.

       Richmond-Hairston entered his guilty pleas pursuant to a plea agreement in which the

government agreed to dismiss a third count of possession of a firearm in furtherance of a drug-

trafficking crime, which would have resulted in an additional lengthy consecutive sentence. The

advisory sentencing guidelines range was calculated at 151 to 180 months of imprisonment, which

included a two-level enhancement to the offense level for obstruction of justice. Richmond-Hairston

objected to the enhancement, without which his sentencing guidelines range would have been 130

to 162 months of imprisonment. He also argued that a downward variance was warranted because
No. 12-1100
United States v. Richmond-Hairston

his criminal history was overstated; that he did not use the firearm and did not know that it was

stolen; that he had a difficult childhood; and that he had made an effort to cooperate with the

government.

       These arguments were addressed at the sentencing hearing. The district court listened to a

tape recording of telephone calls made by Richmond-Hairston to his mother from the jail following

his arrest. During one of these phone calls, Richmond-Hairston lowered his voice, told his mother

that the police were coming to search her house, which he had given as his address, and said that she

should “get that . . . shit up out of there now.” The district court concluded that it was “quite

obvious” that Richmond-Hairston was referring to controlled substances that would be relevant

conduct in this case, and that the investigation of his crime was ongoing at that time. Therefore, the

court found that the obstruction of justice enhancement should be applied. However, the court also

noted that it would have imposed the same sentence without the enhancement, due to the overlap in

the guidelines ranges. The district court discussed the sentencing factors favorable to Richmond-

Hairston, including his troubled childhood, his attempt at cooperation with the government, and his

behavior while on bond, as well as the negative factors of Richmond-Hairston’s criminal history and

the need for the sentence to deter criminal conduct. The district court imposed a sentence of 151

months of imprisonment.

       On appeal, Richmond-Hairston reasserts his argument that the enhancement for obstruction

of justice was erroneous and argues that his sentence was also procedurally unreasonable because

it was not at the bottom of the guidelines range applicable without the enhancement.



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United States v. Richmond-Hairston

        We review sentences for procedural and substantive reasonableness. Gall v. United States,

, 51 (2007). First, we “ensure that the district court committed no significant procedural

error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence

based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” 

procedural error occurred, we “then consider the substantive reasonableness of the sentence imposed

under an abuse-of-discretion standard.” 

may be substantively unreasonable “if the

district court chooses the sentence arbitrarily, grounds the sentence on impermissible factors, or

unreasonably weighs a pertinent factor.” United States v. Brooks, 

, 796 (6th Cir.), cert.

denied, 

(2011). When a sentence falls within the applicable guideline range, we

afford it a rebuttable presumption of substantive reasonableness. 

argues that the enhancement to his offense level for obstruction of

justice was improper. The government must prove an obstruction of justice by a preponderance of

the evidence. United States v. Dunham, 

, 609 (6th Cir. 2002). Whether reviewing the

district court’s finding of an obstruction of justice for clear error or de novo, see United States v.

Cole, 

, 430 (6th Cir. 2004), we conclude that the district court’s finding was correct.

“[D]irecting . . . another person to . . . conceal evidence that is material to an official investigation

or judicial proceeding . . . , or attempting to do so” constitutes obstruction of justice under USSG

§ 3C1.1 cmt. n.4(D). The district court properly found that Richmond-Hairston’s telephone call to

his mother was obstruction of justice, correctly overruling his objections that it was not clear what

he was referring to and that any evidence found would not have been relevant. Moreover, any error

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United States v. Richmond-Hairston

by the district court would have been harmless because the court stated that it would have imposed

the same sentence without the enhancement. See United States v. McCarty, 

, 294 (6th

Cir. 2010).

       In his related second argument, Richmond-Hairston argues that his sentence is procedurally

unreasonable because it is not at the low end of the guidelines range applicable without the

enhancement for obstruction of justice. This argument reflects a fundamental misunderstanding of

the sentencing process. The sentencing court does not consider the sentencing factors in order to

choose a position on the guidelines range, but in order to choose a sentence that it believes is

sufficient, but not greater than necessary, to fulfill the purposes of sentencing. The sentence chosen

may fall at different positions on overlapping guidelines ranges, but this does not render the sentence

unreasonable.

       Accordingly, we affirm the district court’s judgment.




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