USA v. Joshua Ewing

Filing

Per Curiam OPINION filed : Accordingly, we AFFIRM Ewing's sentence. Decision not for publication. R. Guy Cole , Jr., Chief Circuit Judge; Damon J. Keith and Alice M. Batchelder, Circuit Judges.

Case: 13-6255

Document: 31-2

Filed: 10/03/2014

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0763n.06

FILED

No. 13-6255
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSHUA EWING,
Defendant-Appellant.

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Oct 03, 2014
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF
KENTUCKY

BEFORE: COLE, Chief Judge; KEITH and BATCHELDER, Circuit Judges.

PER CURIAM. Joshua Ewing appeals his sentence.
A jury found Ewing guilty of armed bank robbery, in violation of 18 U.S.C. §§ 2113(a)
and 2113(d), and brandishing a firearm during and in relation to a crime of violence, in violation
of 18 U.S.C. § 924(c)(1)(A)(ii). The district court determined that, based on his total offense
level of 24 and criminal history category of IV, Ewing’s guidelines range of imprisonment for
the robbery conviction was 77 to 96 months.

Ewing’s guidelines range for the firearm

conviction was the statutory mandatory minimum term of 84 months.

The district court

sentenced Ewing to 77 months in prison for the robbery conviction, to be served consecutively to
an 84-month term for the firearm conviction.
On appeal, Ewing argues that his sentence is procedurally and substantively unreasonable
because the district court failed to properly consider that he had an abusive upbringing and
mental health and substance abuse problems, that he had not served significant sentences for his

Case: 13-6255

Document: 31-2

Filed: 10/03/2014

Page: 2

No. 13-6255
United States v. Ewing
past crimes, that his criminal history category overstated the seriousness of his past criminal
conduct and likelihood to recidivate, and that lengthy prison terms do not promote deterrence.
We review sentences under a deferential abuse-of-discretion standard for reasonableness,
which has both a procedural and a substantive component. United States v. O’Georgia, 569 F.3d
281, 287 (6th Cir. 2009). A sentence may be procedurally unreasonable where the district court
fails to consider the sentencing factors under 18 U.S.C. § 3553(a) or fails to adequately explain
its chosen sentence.

Gall v. United States, 552 U.S. 38, 51 (2007). A sentence may be

substantively unreasonable where the district court selects the sentence arbitrarily, fails to
consider pertinent § 3553(a) factors, or gives an unreasonable amount of weight to any pertinent
factor. United States v. Vowell, 516 F.3d 503, 510 (6th Cir. 2008). We apply a rebuttable
presumption of substantive reasonableness to a within-guidelines sentence. United States v.
Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc).
In imposing Ewing’s sentence, the district court stated that it had considered the
sentencing factors under § 3553(a), and it explained that its chosen sentence was based largely
on the guidelines. Further, the court reasonably concluded that a below-guidelines sentence was
unwarranted based on the seriousness of Ewing’s crimes and his significant and violent criminal
history. Under the circumstances, Ewing has neither shown that the district court committed
procedural error nor rebutted the presumption that his within-guidelines sentence is substantively
reasonable.
Accordingly, we affirm Ewing’s sentence.

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