United States of America v. John A. Fuson

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0097n.06
Filed: February 8, 2007
No. 05-3782
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
JOHN A. FUSON,
Defendant-Appellee.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF OHIO
O P I N I O N
BEFORE: DAUGHTREY, COLE, and GIBBONS, Circuit Judges.
R. GUY COLE, JR., Circuit Judge. The Government appeals the sentence the district
court imposed on John Fuson after he pleaded guilty to one count of being a felon in possession of
a firearm under 18 U.S.C. § 922(g)(1). The recommended sentence under the United States
Sentencing Guidelines was twenty-four to thirty months in prison. The district court sentenced
Fuson to five years of probation (six months of which required home confinement) and imposed a
fine of $2000. On appeal, the Government argues that (1) the district court incorrectly applied the
Sentencing Guidelines’ departure criteria in reaching this sentence, and (2) even if viewed as a non-
Guidelines departure under 18 U.S.C. § 3553(a) (in which case the district court has greater
discretion), the sentence is both procedurally and substantively unreasonable. For the following

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No. 05-3782
USA v. Fuson
Some of this background information is discussed in this Court’s prior decision in this case,1
United States v. Fuson (Fuson I), 116 F. App’x 588 (6th Cir. 2004).
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reasons, we conclude that the sentence is a non-Guidelines departure under § 3553(a) that is
procedurally and substantively reasonable. We therefore AFFIRM the district court.
I. BACKGROUND1
In September 2001, Fuson’s wife purchased a seventy-five-year-old handgun at an antique
show with the intent to resell the gun for profit. Shortly after she purchased the gun, Fuson allegedly
expressed his objection to it and mentioned that he was not supposed to have weapons in the house
due to his prior felony convictions. The gun nonetheless remained in the house for the next four
months.
In January 2002, police found the gun while searching Fuson’s residence in connection with
a warrant unrelated to the antique weapon. When the gun was found, it was in a closet and in the
same case that it was in when Fuson’s wife purchased it. The gun was not loaded, but there was
ammunition elsewhere in the house. Fuson told authorities that neither he nor his family members
had ever fired the gun.
A background check revealed that Fuson was a convicted felon. He had previously pleaded
guilty to the following three counts of drug trafficking under Ohio law: (1) selling a half ounce of
marijuana for $90 to a confidential informant on August 3, 1996; (2) exchanging 0.69 grams of
marijuana for three cartons of cigarettes (worth about $75) with a confidential informant on October
23, 1998; and (3) exchanging one-eighth of an ounce of marijuana for three cartons of cigarettes with

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a confidential informant on October 24, 1998. Additionally, Fuson had pleaded guilty to driving
under the influence on two occasions, once in 1993 and once in 1994.
The Government charged Fuson under 18 U.S.C. § 922(g)(1) for being a felon in possession
of a firearm, and he pleaded guilty on July 22, 2003. After his plea but before beginning his
sentence, Fuson voluntarily sought drug-abuse treatment at his own expense.
The district court held a sentencing hearing on December 12, 2003. The Pre-Sentence
Investigation Report (PSR) concluded that under the Sentencing Guidelines Fuson’s Criminal
History Category was II and his base offense level was seventeen. This calculation resulted in a
sentencing range of twenty-seven to thirty-three months. The parties did not object to the PSR, but
the district court departed downward from this range, invoking Guidelines departure provisions and
explaining that it relied on the following bases for departure: Fuson is a productive citizen in
business with his daughter’s boyfriend; he supports his wife and three children; he voluntarily sought
drug-abuse treatment at his own expense and has not had a relapse since he began treatment; the gun
was an antique, had never been fired, and was purchased for collection purposes only; and a small
amount of marijuana formed the basis for his predicate felony offenses. Although the court gave
these reasons orally, the written statement of reasons for the departure contained only the following:
“Over the objections of the government, the court determined that the defendant’s Criminal History
Category was overstated. Further, the court departed eight levels based upon the finding that his case
is outside the heartland of the guidelines, pursuant to U.S.S.G. 4A1.3.” After accounting for this
departure, the court sentenced Fuson to five years of probation (with the first six months to be served
through home detention) and fined him $2000. The Government timely appealed.

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USA v. Fuson
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On November 16, 2004, this Court vacated the sentence and remanded for re-sentencing,
holding that (1) the district court’s written order neither adequately explained nor justified the
departure and therefore violated 18 U.S.C. § 3553(c)(2); and (2) the court’s oral explanation did not
support the departure because (a) the court’s determination that the PSR overstated Fuson’s criminal
history would allow for only a one-level downward departure from Category II to I, not an eight-level
downward departure in offense level; (b) many of the court’s reasons for departure under the
Guidelines’ departure provisions were foreclosed by this Circuit’s cases or the Guidelines
themselves; and (c) the court considered factors that the Guidelines deem “not ordinarily relevant”
(e.g., employment history) but did not explain, as it was required to do, how these factors were
“present to an exceptional degree or in some other way made the case different from the ordinary
case where the factor is present.” See Fuson I, 116 F. App’x at 590-91. Shortly after this decision,
but before the district court re-sentenced Fuson, the United States Supreme Court decided United
States v. Booker, 543 U.S. 220 (2005), which held that the Guidelines are not mandatory but only
advisory.
On May 16, 2005, the district court conducted another sentencing hearing. The court again
considered the original PSR, which concluded that Fuson’s Criminal History Category was II and
his offense level was seventeen. The court again concluded that Criminal History Category II
overstated Fuson’s criminal history and determined it should be Category I. Fuson’s offense level
and Criminal History Category correlated to a Guidelines range of twenty-four to thirty months. The
Government agreed that a sentence in this range would be reasonable, and it requested such a
sentence. The court then stated it believed “it would be appropriate to deviate from the guideline

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No. 05-3782
USA v. Fuson
Although the record is not clear on this comment, we presume it to mean Fuson could not2
be prosecuted for possessing an antique firearm under 18 U.S.C. § 921. The Government does not
dispute the district court’s comment.
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range.” The court indicated that it planned to impose the same sentence it imposed before, and the
probation officer stated that the corresponding Guidelines offense level for that sentence (considering
a Criminal History Category I) would be ten. The court responded that “the appropriate sentence in
this case is at the level 10.”
The court then provided its reasons for imposing the lesser sentence, noting that “the nature
and circumstances of this particular offense justify, if indeed they do not compel, a result that is more
lenient than the guidelines would mandate.” Similar to Fuson’s first sentencing, the court recounted
certain factors, including that Fuson’s wife bought the gun, it was not bought to further criminal
conduct, and it was kept in a closet. The court further noted that although “a fair amount of
ammunition at some point . . . had been acquired by someone,” had the gun been a year older, “we
would not be here.”2
The court turned again to the nature of the particular offense: “I think of all these kinds of
cases, this is one where the nature and the circumstances of how the offense occurred and the fact
that this was essentially constructive possession justify a deviation or variance from the guidelines.”
At this point, the court noted that Fuson’s record was “unblemished” since his marijuana-trafficking
conviction seven years earlier, and no contraband was found in his house during the search that
turned up the gun. The court further noted that Fuson “is working, supporting the family,” and
although the court recognized “that normally is not a basis for a departure or deviation,” it at least

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“suggests . . . a lenient sentence is appropriate.” The court next explained that the punishment was
just; that there probably would be a general deterrent effect on those who know the sentencing risk
to which Fuson was exposed; and that the public was never in danger. The court acknowledged that
although Fuson’s sentence “will have the effect of creating some disparity between the defendant
and other people convicted of this offense,” the court believed this disparity was justified here
because of “the nature and circumstances of this offense in comparison with those and other cases
of this sort being brought by the Government.” Finally, the court noted there was no issue of
restitution. The court ultimately imposed the original sentence of five years of probation (including
six months of home confinement) and a $2000 fine. The Government now appeals.
II. DISCUSSION
A. Standard of Review
After Booker, which rendered the Sentencing Guidelines advisory for all criminal cases,
district courts have enhanced discretion when sentencing criminal defendants. United States v.
Jackson, 408 F.3d 301, 304 (6th Cir. 2005) (citation omitted). Ultimately, however, Booker requires
that the sentence the district court imposes be reasonable. Id. Both district courts imposing
sentences and appellate courts reviewing sentences are to be guided by the factors set forth in 18
U.S.C. § 3553(a). Id. Section 3553(a) instructs a district court to impose “a sentence sufficient, but
not greater than necessary, to comply with the purposes set forth in [§ 3553(a)(2)].” United States
v. Collington, 461 F.3d 805, 807 (6th Cir. 2006). Under § 3553(a), the district court should consider
the seriousness of the offense, deterrence of future crimes, protection of the public from future
crimes of the defendant, and providing the defendant with needed training or correctional treatment.

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Id. (citing § 3553(a)(2)). The court should also consider the nature and circumstances of the
defendant, the kinds of sentences available, the sentencing Guideline range, policy statements from
the Sentencing Commission, the need to avoid sentencing disparities, and the need to provide
restitution to the victims. Id. at 807 n.1 (citing § 3553(a)(1), (3)-(7)). Thus, under this new
sentencing scheme, district courts are required to consider the applicable Guideline sentencing range
when arriving at a defendant’s sentence, see § 3553(a)(4), but as only one factor of several laid out
in § 3553(a). Jackson, 408 F.3d at 304; see also United States v. McBride, 434 F.3d 470, 476 (6th
Cir. 2006) (“Once the appropriate advisory Guideline range is calculated, the district court throws
this ingredient into the section 3553(a) mix.”). We review a district court’s imposition of a sentence
for reasonableness with an eye toward those same § 3553(a) factors. Jackson, 408 F.3d at 304.
B. “Non-Guidelines Departure” Under § 3553(a)
Before Booker, under the mandatory Guideline system, a defendant’s only hope of a lesser
sentence was a Guideline-based downward departure. McBride, 434 F.3d at 476. These Guideline-
based departures were very limited. See id. (“In contrast to the sentencing scheme before Booker
when a sentence outside the mandatory guideline range was permitted only on very limited grounds,
there are now more sentencing variables.”) (citation omitted). The Government argues that Fuson’s
sentence “appears to be the product of a departure under the Sentencing Guidelines,” (Appellant’s
Br. 19-20), as opposed to a “non-Guidelines sentence under § 3553(a),” (id. 26). In short, according
to the Government, the district court departed under the Guidelines and was therefore required to
depart in the limited ways enumerated in the Guidelines. Thus, the Government argues, the district

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court “recommitted the same Guidelines errors it committed when it initially sentenced Fuson.” (Id.
19-20.)
We conclude, however, that Fuson’s sentence was not the result of a Guideline-based
departure; rather, it was a now-typical § 3553(a) sentence, also known as a “non-Guideline
departure,” “deviation,” or “variance.” See, e.g., United States v. Cousins, 469 F.3d 572, 577 (6th
Cir. 2006) (“We often refer to Non-Guideline departures as ‘variances.’”); United States v. Davis,
458 F.3d 491, 497 (6th Cir. 2006) (noting that a factor the district court considered “did not authorize
a “downward departure” under the Guidelines, but separately addressing whether the factor
authorizes a “variance” under § 3553(a)). As discussed further below, the district court plainly
imposed Fuson’s sentence by considering the § 3553(a) factors and not simply the Guideline
departures. The district court even stated that Fuson’s sentence amounted to a “variance” from the
Guidelines. (See, e.g., J.A. 98 (“I think of all these kinds of cases, this is one where the nature and
the circumstances of how the offense occurred . . . justify a deviation or variance from the
guidelines.” (emphasis added)).) And although the district court remarked that “the appropriate
sentence in this case is at the level 10,” (id. 96), we conclude the court was merely indicating (albeit
unnecessarily) where the sentence would fall if it were derived from the Guidelines. The court was
not, as the Government contends, “recommitting” the same Guideline-departure errors we found in
Fuson I.
C. Reasonableness
The government further contends that even as a non-Guidelines sentence under § 3553(a),
Fuson’s sentence is unreasonable, both procedurally and substantively. We disagree.

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1. Procedural Reasonableness
A sentence may be procedurally unreasonable if the district court fails to consider the
applicable Guidelines range or neglects to consider the other factors listed in § 3553(a) and instead
simply selects what the court deems an appropriate sentence. Collington, 461 F.3d at 808 (citing
United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005)). Here, the district court correctly
calculated the Guidelines range of twenty-four to thirty months, and the Government conceded that
this range was reasonable. The court then independently considered and faithfully applied the §
3553(a) factors, specifically discussing the nature and circumstances of the offense and Fuson’s
history and characteristics (see § 3553(a)(1)); the need for the sentence imposed to provide just
punishment (see § 3553(a)(2)(A)), to afford adequate deterrence (see § 3553(a)(2)(B)), and to protect
the public (see § 3553(a)(2)(C)); the need to avoid unwarranted sentencing disparities (see §
3553(a)(6)); and the need to provide restitution (see § 3553(a)(7)). For procedural reasonableness,
this is all that we require. See Davis, 458 F.3d at 495 (noting that sentence “satisfies each of [the]
procedural requirements and indeed can fairly be described as a thorough application of the §
3553(a) factors” where the judge used the appropriate version of the Guidelines and correctly
calculated the Guidelines range, considered the availability of Guidelines departures, and
independently considered and faithfully applied each of the § 3553(a) factors); see also Collington,
461 F.3d at 809 (sentence was procedurally reasonable even though district court did not explicitly

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name each of the § 3553(a) factors it used to arrive at the sentence). We therefore conclude the
district court imposed a procedurally reasonable sentence.
2. Substantive Reasonableness
When a district court considers the relevant § 3553(a) factors in depth and reaches its
determination that the appropriate sentence varies from the advisory Guidelines range, we are
reluctant to find the sentence unreasonable. Id. at 811. Nonetheless, a sentence may be considered
substantively unreasonable when the district court selects the sentence arbitrarily, bases the sentence
on impermissible factors, fails to consider pertinent § 3553(a) factors, or gives an unreasonable
amount of weight to any pertinent factor. Id. at 808 (citing Webb, 403 F.3d at 383). When the
district court independently chooses to deviate from the advisory Guidelines range (whether above
or below it), we apply a form of proportionality review: “[T]he farther the judge’s sentence departs
from the guidelines sentence . . . the more compelling the justification based on factors in section
3553(a)” must be. Davis, 458 F.3d at 496 (citations omitted).
Davis and Collington guide our decision here. In Davis, we held that a district court’s
downward variance from the Guidelines was substantively unreasonable. Id. at 500. There, a jury
convicted the defendant of bank fraud, and the district court determined the Guidelines sentencing
range to be thirty to thirty-seven months. Id. at 494. Under § 3553(a), the district court imposed a
lower sentence, relying heavily on three factors: the defendant was seventy years old, fourteen years
had elapsed since he committed the offense, and the offense was a white-collar crime. See id. The
sentence amounted to one day in prison, three years of supervised release (including one year of
home confinement) and 100 hours of community service. Id. at 495.

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This Court vacated the sentence, concluding it was substantively unreasonable. The Court
noted that the one-day prison sentence amounted to an extraordinary variance from the Guidelines
range of thirty to thirty-seven months and that the circumstances did not justify that variance. First,
the Court explained that the fourteen-year gap between conviction and sentence did not support such
a dramatically reduced sentence “and indeed may not support a variance at all” because “[t]ime
intervals of this sort appear nowhere in” the list of § 3553(a) factors. Id. at 497. Second, the Court
noted that although Booker gives the district court “a freer hand to account for [disfavored
sentencing factors such as] the defendant’s age in its sentencing calculus under § 3553(a) than it had
before Booker,” the defendant’s age did not warrant the one-day sentence where the defendant’s
fraud caused over $900,000 in losses, he did not repay the lost money, he did not accept
responsibility for his crime, and he had yet to show remorse. The Court also explained that the
sentence left no room to make reasoned distinctions between the defendant’s sentence and sentences
more worthy defendants may deserve. See id. at 499. Third, the Court rejected the district court’s
reliance on the white-collar nature of the crime to reduce the sentence, explaining that “[o]ne of the
central reasons for creating the sentencing guidelines . . . was to ensure stiffer penalties for white-
collar crime and to eliminate disparities between white-collar sentences and sentences for other
crimes.” Id. Thus, although the Court recognized that the district court “retains ample discretion
to grant [the defendant] a variance on this record,” the one-day sentence on these “less-than-
extraordinary facts” was unreasonable. Id. at 500.
In Collington, on the other hand, we upheld a district court’s downward variance from the
Guidelines. There, the defendant pleaded guilty to possession of over fifty grams of crack cocaine

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USA v. Fuson
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with intent to distribute; being a felon in possession of a firearm; and unlawful possession of a
machine gun. 461 F.3d at 806. The district court determined the Guideline sentencing range would
be 188 to 235 months. Id. at 807. The district court then varied downward from this range based
on the defendant’s (1) criminal history (he had been imprisoned for only seven months before this
crime and this incident was the first time this quantity of drugs and guns had been found in his
possession); (2) family history (his father was murdered when the defendant was nine years old, and
the defendant’s mother died of cancer two years later); and (3) age (the defendant was young enough
that he might reform and lead a productive life when released from prison in his mid-thirties). Id.
at 809. Considering these factors, the district court sentenced the defendant to 120 months’
imprisonment with five years of supervised release. Noting that the district court “couched all of its
reasons for [the defendant’s] sentence in the factors listed in section 3553(a)” and did not “assign
an unreasonable amount of weight to any of the factors it considered,” this Court upheld the sentence
as substantively reasonable.
We conclude Fuson’s sentence is substantively reasonable. In contrast to the district court
in Davis, which relied heavily (and nearly exclusively) on disfavored or improper sentencing factors
(time lapse before sentence, age of the defendant, and the white-collar nature of the crime), the
district court here relied more on the “nature and circumstances” of the offense and properly
considered “history and characteristics of the defendant” under § 3553(a)(1), noting certain
particularly unique factors: Fuson’s wife bought the gun, which was an antique; it was not bought
for any criminal purpose; and Fuson’s criminal record, comprised of relatively minor predicate
offenses, was unblemished for the past seven years. The court’s application of the § 3553(a) factors

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here was thus akin to the district court’s reasonable sentence in Collington. And although the district
court remarked that Fuson was working and supporting his family, the court did not rely heavily on
this factor, even noting that it was disfavored. The district court retains discretion to give such
disfavored factors some weight. See, e.g., Davis 458 F.3d at 498 (district court has a “freer hand”
to consider disfavored factors); Jackson, 408 F.3d at 305 n.3 (“To the extent that the district court
in resentencing relies on any factors [that] are deemed by the Guidelines to be prohibited or
discouraged . . . , the district court will need to address these provisions and decide what weight, if
any, to afford them in light of Booker.”). Had the court relied heavily on improper factors, such as
Fuson’s family situation, our task would be more difficult. In sum, although we deem this case to
approach the boundary of the district court’s broader sentencing discretion under Booker, it does not
cross the line.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the sentence imposed by district court.

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JULIA SMITH GIBBONS, Circuit Judge, concurring. While determining that Fuson’s
sentence is procedurally reasonable is relatively easy, it is far less obvious that the sentence is
substantively reasonable. Nevertheless, after much consideration, I join the majority opinion’s
conclusion that the sentence should be affirmed. In reaching this result, an important point for me
is that six months home confinement was imposed as a condition of probation; another is that
Fuson’s period of supervision is the maximum permitted by statute. Yet, other factors counsel
against a determination of substantive reasonableness in my mind. Many defendants charged with
violations of 18 U.S.C. § 922(g) evidence no intent to use the weapon in a violent manner, support
their families, and have not been in trouble for a long time. It is hard for me to see why this
defendant was deserving of a very lenient sentence, while others similarly situated have served
prison sentences. I must acknowledge, however, that district courts post-Booker have sentencing
discretion that in some circumstances permits such disparity. And I agree with the majority that this
case differs from Davis, in which our court found a one-day sentence based on the defendant’s age,
white-collar offense, and the passage of time substantively unreasonable. I therefore concur,
agreeing that the sentence does not cross the boundary line of a district court’s broader sentencing
discretion under Booker.

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