USA v. Kevin Tincher

Filing

OPINION filed: AFFIRMED, decision not for publication pursuant to local rule 206. Karen Nelson Moore (authoring) and Julia Smith Gibbons, Circuit Judges and Paul D. Borman, U.S. District Judge for the Eastern District of MI.

Case: 09-4189 Document: 006110983276 Filed: 06/13/2011 Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0396n.06
No. 09-4189

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

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)
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Plaintiff–Appellee,
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v.
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KEVIN R. TINCHER,
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)
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Defendant–Appellant.
_______________________________________)

Jun 13, 2011
LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE SOUTHERN
DISTRICT OF OHIO
OPINION

Before: MOORE and GIBBONS, Circuit Judges; BORMAN, District Judge.*
KAREN NELSON MOORE, Circuit Judge.

Kevin R. Tincher pleaded guilty to

distributing oxycodone and cocaine, being a felon in possession of a firearm, and dealing firearms
without a license. The district court sentenced Tincher to 108 months of imprisonment and five
years of supervised release. Although the term of imprisonment falls within the Guidelines range,
Tincher contends on appeal that his sentence is unreasonable. Tincher seeks lenience because he has
suffered brain damage, is addicted to drugs, and supports a minor child. He also argues that the
government “‘manufactured’ or ‘invented’” his crimes, although he acknowledges that he was not
formally entrapped. Appellant Br. at 10. Nevertheless, because we conclude that Tincher’s sentence
is procedurally and substantively reasonable, we AFFIRM Tincher’s sentence.

*

The Honorable Paul D. Borman, United States District Judge for the Eastern District of
Michigan, sitting by designation.

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United States v. Tincher
I. BACKGROUND
On December 19, 2007, Tincher sold thirty-eight OxyContin pills and .80 gram of cocaine
to Special Agent Jeremy Godsave, who was working undercover with the Bureau of Alcohol,
Tobacco, Firearms, and Explosives. On the same day, he also gave .79 gram of cocaine to the
confidential informant who had arranged Tincher’s sale to Agent Godsave. On January 4, 2008,
Tincher sold eighteen OxyContin pills and a .41-caliber pistol to Agent Godsave. Finally, on
January 8, 2008, Tincher sold a .357-caliber pistol and a .45-caliber pistol to Agent Godsave.
Tincher did not have a Federal Firearms License and was a convicted felon at the time of each sale.
On February 26, 2009, Tincher pleaded guilty to two counts of distributing oxycodone, 21
U.S.C. §§ 841(a)(1) and (b)(1)(C), one count of distributing cocaine, 21 U.S.C. §§ 841(a)(1) and
(b)(1)(C), one count of being a felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1) and
924(a)(2), and one count of dealing firearms without a license, 18 U.S.C. §§ 922(a)(1) and
924(a)(1)(D). In exchange, the government dismissed a second count of being a felon in possession
of a firearm, one count of possessing with intent to distribute cocaine in excess of 500 grams, and
one count of using and carrying a firearm during and in relation to a drug trafficking crime.
At sentencing, Tincher faced a Guidelines range of 92 to 115 months of imprisonment.
Tincher argued that, although the government had not entrapped him, the government had
“prodd[ed]” Tincher to commit the crimes. R. 53 (Objections to PSR at 2). He also stressed
elements of his personal history, including untreated brain damage, longstanding drug abuse, a lack
of education and parental guidance during his youth, and a newfound desire to raise his son.

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Although the district court recognized these features, the district court viewed “the safety of the
community” as its “paramount consideration” and “truly . . . the predominant factor here.” R. 68
(Sent. Tr. at 23, 21). Tincher’s “past criminal record [wa]s extensive,” id. at 17, including “some
12 or 13 felonies and half a dozen, if not more, misdemeanors,” id. at 22, which the district court
described at length. The district court explained that “[t]he safety of the community is very much
at risk based upon [Tincher’s] past record.” Id. The district court therefore sentenced Tincher to 108
months of imprisonment, to be followed by five years of supervised release.
II. ANALYSIS
On appeal, Tincher argues that his sentence is unreasonable.1 We disagree, holding instead
that the district court acted within its discretion in imposing the 108-month sentence.
Preliminarily, Tincher argues that United States Sentencing Guidelines (U.S.S.G.) §§ 5H1.1,
5H1.3, 5H1.4, and 5H1.6 are unconstitutional to the extent that they forbid district courts from
imposing non-Guidelines sentences on the bases of age, mental and emotional conditions, physical
conditions including alcohol or drug abuse, and family ties and responsibilities. These Part H
Guidelines limit the circumstances in which district courts may depart due to the listed bases. In the
wake of Booker, these provisions do not prevent district courts from varying based on how the listed
factors inform the 18 U.S.C. § 3553(a) analysis. United States v. Davis, 537 F.3d 611, 616–17 (6th

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Although Tincher characterizes his claim as a challenge to the substantive reasonableness
of the sentence, his arguments encompass both procedural and substantive considerations. See
Appellant Br. at 9–10 (quoting law about the need to explain the basis for rejecting a defendant’s
arguments), 13 (contending that “it is not clearly evident from the record” that the court took “into
account” Tincher’s arguments).
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Cir.) (§ 5H1.1), cert. denied, 129 S. Ct. 752 (2008); United States v. Baker, 502 F.3d 465, 468 (6th
Cir. 2007) (§ 5H1.6). By extension, the provisions also cannot prevent district courts from picking
which within-Guidelines sentence to impose based on how the listed factors inform the § 3553(a)
analysis. Therefore, the constitutional question that Tincher has raised relies on an overly broad
understanding of what the Part H Guidelines prohibit.
A. Procedural Reasonableness
We review sentences for abuse of discretion to determine whether the sentence is reasonable.
Gall v. United States, 552 U.S. 38, 51 (2007). For a sentence to be procedurally reasonable, “[t]he
sentencing judge should set forth enough [reasons] to satisfy the appellate court that he has
considered the parties’ arguments and has a reasoned basis for exercising his own legal
decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356 (2007). “When a defendant
raises a particular, nonfrivolous argument in seeking a lower sentence, the record must reflect both
that the district judge considered the defendant’s argument and that the judge explained the basis for
rejecting it.” United States v. Damra, 621 F.3d 474, 508 (6th Cir. 2010) (internal quotation marks
and alteration marks omitted). “Sometimes the circumstances will call for a brief explanation;
sometimes they will call for a lengthier explanation.” Rita, 551 U.S. at 357. In all cases, though,
the key “question is whether ‘[t]he record makes clear that the sentencing judge listened to each
argument,’ ‘considered the supporting evidence,’ was ‘fully aware’ of the defendant’s
circumstances[,] and took ‘them into account’ in sentencing him.” United States v. Vonner, 516 F.3d
382, 387 (6th Cir.) (en banc) (quoting Rita, 551 U.S. at 358), cert. denied, 129 S. Ct. 68 (2008).

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Because the district court in this case did not ask the Bostic question, Tincher’s failure to object after
the district court announced his sentence does not limit us to plain-error review. United States v.
Thomas, 498 F.3d 336, 340 (6th Cir. 2007) (holding that “Do you have anything further for the
record, Mr. Canady?” does not satisfy Bostic); R. 68 (Sent. Tr. at 30–31) (“Mr. Monta, anything
further?”).
Tincher highlights five factors to which, in his view, the district court gave inadequate weight
when selecting his sentence. The district court thoroughly addressed two of these factors. First,
Tincher “under[went] a personal transformation during the 18 months of prior incarceration” and
now “desire[s] to raise his 18-month old son.” Appellant Br. at 15. The district court recognized
that Tincher “strongly desire[s] to raise his child” and took into consideration Tincher’s “apparent
sincerity” about his “desire to turn his life around.” R. 68 (Sent. Tr. at 20, 23). It also opted not to
impose an above-Guidelines sentence because the district court “hope[d] that this Defendant is ready
to turn his life in the right direction.” Id. at 24–25. Clearly, the district court understood and
addressed Tincher’s argument. Second, Tincher asserts that the government “manufactured” his
crime, while admitting that he was not entrapped. Appellant Br. at 10. Tincher contests the
government’s assertion that he dealt firearms, oxycodone, or cocaine on a regular basis or in large
quantities, blaming his conviction on having been “repeatedly prodded by the [confidential
informant].” Id. at 15. In response, the district court explained that “[t]hese offenses were not
manufactured as much as they were the providing of opportunities for the Defendant to commit
crimes. And there’s very little that the Court feels it should do” in response. R. 68 (Sent. Tr. at

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20–21). The district court took that factor “into consideration to some extent but the Court c[ould
]not avoid the fact that a predisposition existed in this case to a high degree.” Id. at 21. Putting aside
the parties’ dispute about the extent of Tincher’s involvement in other crimes, the district court
adequately explained its conclusion that Tincher was predisposed to commit the crimes to which he
pleaded guilty.
The district court also considered the three other factors that Tincher finds important, despite
recounting them in less detail than Tincher would have preferred. First, the district court observed
that Tincher’s history of drug use included “[a]lcohol, marijuana, cocaine, methamphetamine, [and]
OxyContin.” R. 68 (Sent. Tr. at 20). Tincher supplements these facts by noting that his drug use
started at a young age. He has used marijuana and alcohol regularly since age 11 and cocaine since
age 14. Second, the district court noted that Tincher received only six years of formal education,
although it also observed that “[h]e’s far more intelligent than his formal education would indicate.”
Id. Tincher adds that his childhood involved financial difficulties and little adult supervision. Third,
the district court noted that “a host of medical issues” afflict Tincher. Id. It did not explain the
nuances of Tincher’s partially untreated brain damage, which was caused by a suicide attempt that
left Tincher in a coma for three months.
Because the district court considered each of Tincher’s arguments and took them into account
when crafting Tincher’s sentence, we find that Tincher’s sentence is procedurally reasonable. While
it is always possible for a district judge to have recited the defendant’s arguments in more detail, this
is not a case in which “we are unable to answer the simple question of why the district judge decided

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to impose” the sentence that he did. United States v. Wallace, 597 F.3d 794, 803 (6th Cir. 2010).
Nor is this a case in which “[t]he district judge . . . did not make even a cursory mention” of the
disputed issues. Id. at 804. Instead, “‘the record makes clear that the sentencing judge listened to
each argument.’” Id. (quoting Rita, 551 U.S. at 358).
Tincher’s final objection to the procedural reasonableness of his sentence is that public safety
is not a legitimate basis for imposing long sentences for drug crimes. According to Tincher, drug
crimes are victimless and incarceration for drug offenses has not lowered the rates of violent crime.
The district court, however, seems to have used the phrase “public safety” to refer to 18 U.S.C.
§ 3553(a)(2)(B–C). Those subsections explain “the need for the sentence imposed . . . to afford
adequate deterrence to criminal conduct” and “to protect the public from further crimes of the
defendant.” Regardless of Tincher’s views about the merits of federal drug policy, Tincher’s actions
were criminal. Tincher’s sentence functions as a deterrent to the commission of drug crimes. His
incapacitation protects the public from Tincher’s drug sales for the duration of his incarceration.
Moreover, two of the crimes to which Tincher pleaded guilty were firearms offenses, not drug
offenses. The district court, then, did not procedurally err by considering “public safety.”
Because the district court listened to each of Tincher’s arguments and explained why each
factor affected or did not affect Tincher’s sentence, Tincher’s sentence is procedurally reasonable.
B. Substantive Reasonableness
For similar reasons, we conclude that Tincher’s sentence is substantively reasonable. “A
sentence is substantively unreasonable if the district court selects a sentence arbitrarily, bases the

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sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an
unreasonable amount of weight to any pertinent factor.” United States v. Lapsins, 570 F.3d 758, 772
(6th Cir. 2009) (internal quotation marks omitted). Our circuit presumes, subject to rebuttal, that a
sentence is substantively reasonable when it falls within the Guidelines range. Vonner, 516 F.3d at
389–90. As explained above, the factors that the district court considered were permissible, and the
district court did not fail to consider any relevant sentencing factors. That the district court found
public safety to be the predominant concern is not proof that the district court gave public safety
unreasonable weight, nor is it proof that the district court ignored the defendant’s personal history.
Tincher has not overcome the presumption that his within-Guidelines sentence is substantively
reasonable.
III. CONCLUSION
The district court did not abuse its discretion when it imposed a within-Guidelines sentence
on Tincher. Because we have determined that Tincher’s sentence is both procedurally and
substantively reasonable, we AFFIRM Tincher’s sentence.

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