NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0606n.06

                                           No. 12-2210                                     FILED
                                                                                       Jun 26, 2013
                          UNITED STATES COURT OF APPEALS                        DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )
                                                     )       ON APPEAL FROM THE
v.                                                   )       UNITED STATES DISTRICT
                                                     )       COURT FOR THE WESTERN
SHERMAN GEORGE WIMBERLY,                             )       DISTRICT OF MICHIGAN
                                                     )
       Defendant-Appellant.                          )
                                                     )


BEFORE: KEITH, WHITE, and STRANCH, Circuit Judges.


       PER CURIAM. Defendant-Appellant Sherman George Wimberly appeals his 186-month

sentence. We affirm.

       Wimberly pled guilty without a plea agreement to one count of armed robbery of a credit

union and one count of discharging a firearm during a crime of violence (R.E. 27). Wimberly’s

conviction for discharging a firearm during a crime of violence carried a mandatory minimum

sentence of 120 months, consecutive to any other sentence, pursuant to 18 U.S.C. § 924(c)(1)(A)(iii).

The Presentence Investigation Report calculated Wimberly’s guidelines range for armed robbery at

63 to 78 months. At sentencing, defense counsel argued for a reduced sentence based on Wimberly’s

mental-health issues (R.E. 40). Declining to depart or vary downward, the district court sentenced

Wimberly to 66 months’ imprisonment for the armed robbery, consecutive to 120 months for the

discharge of the firearm (R.E. 37).
No. 12-2210
United States v. Wimberly

        Wimberly moved to hold this appeal in abeyance pending the Supreme Court’s decision in

Alleyne v. United States, which has since issued. ---S. Ct.----, No. 11-9335, 

(June

17, 2013). Alleyne held that a jury must determine facts required to support a mandatory minimum

sentence. 

However, the holding of Alleyne is irrelevant to this case because Wimberly

entered a guilty plea and specifically admitted discharging a firearm during the credit-union robbery

(R.E. 39, p. 8), the fact used to support his mandatory minimum sentence.

        Wimberly argues that his sentence is substantively unreasonable based on his serious

physical- and mental-health issues. “A sentence is substantively unreasonable if the district court

selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant

sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.” United States

v. Camiscione, 

, 832 (6th Cir. 2010) (citation and internal quotation marks omitted).

A within-guidelines sentence is entitled to a rebuttable presumption of reasonableness. United States

v. Bolds, 

, 581 (6th Cir. 2007). We review the reasonableness of a sentence imposed

in a criminal case for an abuse of discretion. United States v. Freeman, 

, 185 (6th Cir.

2011). Wimberly acknowledges that his sentence was within the guidelines range, but he argues that

his serious physical and mental health issues warranted a sentence lower than the guidelines range.

Wimberly’s alleged physical issues of migraines, hemorrhoids, herpes, back pain, and arthritis are

not unusually serious, and counsel did not press that argument at sentencing. His mental-health

issues include depression, sleep disorder, bi-polar disorder, panic attacks, anxiety, suicidal ideations,

systhymic disorder, anti-social personality, and borderline personality disorder. Wimberly does not

argue that the district court’s sentence was arbitrary or that it was based on impermissible factors.

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No. 12-2210
United States v. Wimberly

And he cannot argue that the district court failed to consider his mental-health issues. The district

court expressed concern over Wimberly’s mental health and included recommendations for diagnosis

and treatment in the sentence (R.E. 40, pp. 8, 10-11). The fact that the district court could have

imposed a shorter sentence is insufficient to disturb the judgment. United States v. Smith, 

, 478 (6th Cir. 2008).

       Accordingly, the district court’s judgment is affirmed.




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