United States v. Pearce ( 2008 )


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  •                            RECOMMENDED FOR FULL-TEXT PUBLICATION
    Pursuant to Sixth Circuit Rule 206
    File Name: 08a0240p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    _________________
    X
    Plaintiff-Appellee, -
    UNITED STATES OF AMERICA,
    -
    -
    -
    Nos. 07-3146/3193
    v.
    ,
    >
    CARL PEARCE (07-3146), and CURTIS JOHNSON            -
    -
    Defendants-Appellants. -
    (07-3193),
    -
    N
    Appeal from the United States District Court
    for the Northern District of Ohio at Cleveland.
    No. 05-00120—Donald C. Nugent, District Judge.
    Submitted: June 5, 2008
    Decided and Filed: July 3, 2008
    Before: DAUGHTREY, CLAY, and McKEAGUE, Circuit Judges.
    _________________
    COUNSEL
    ON BRIEF: John B. Gibbons, LAW OFFICES, Cleveland, Ohio, Charles E. Fleming, FEDERAL
    PUBLIC DEFENDER’S OFFICE, Cleveland, Ohio, for Appellants. Kelly L. Galvin, ASSISTANT
    UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.
    _________________
    OPINION
    _________________
    CLAY, Circuit Judge. In this consolidated appeal, Defendants, Carl Pearce (“Pearce”) and
    Curtis Johnson (“Johnson”), challenge, on Fourth Amendment grounds, their convictions for
    possession of firearms and ammunition while having previously been convicted of a felony, in
    violation of 18 U.S.C. § 922(g)(1) (2000). In particular, Defendants contest the district court’s
    denial of their motions to suppress evidence seized following a stop of Johnson for which the police
    allegedly lacked reasonable suspicion. Pearce also disputes the procedural reasonableness of his
    235-month sentence. For the reasons that follow, we AFFIRM the district court’s suppression
    ruling as well as Defendants’ convictions and sentences.
    I. BACKGROUND
    On January 14, 2005, officers from the Cleveland Police Department (“CPD”) and the
    Cleveland Metropolitan Housing Authority (“CMHA”) were conducting a special detail in the area
    1
    Nos. 07-3146/3193                      United States v. Pearce, et al.                                         Page 2
    surrounding the Woodhill Family Homes Estates and the Morris Black Estates, housing projects in
    northeast Cleveland. In particular, the officers were targeting the streets surrounding the Mount
    Carmel Deli (the “Deli”), a delicatessen located at 11007 Mt. Carmel Street. This special detail was
    intended to address a recently increased level of criminal activity–particularly narcotics
    trafficking–in the area, which had been evidenced by a homicide shooting near the Deli a few days
    earlier.
    At approximately 8:15 p.m. that evening, Johnson, accompanied by a passenger, Pearce,
    parked a white Ford Taurus on the south side of Mt. Carmel Street, across from the Deli. Shortly
    thereafter, Officer Paul Shaughnessy (“Shaughnessy”), a fifteen-year veteran of the CMHA, initiated
    the planned police sweep by pulling onto Mt. Carmel Street and parking his marked police cruiser
    in the middle of the street, a little behind where the Taurus had been parked. While Officer
    Shaughnessy was parking and exiting from his cruiser, he observed Pearce leaning slightly forward
    in the passenger seat of the Taurus while Johnson exited the vehicle on the driver’s side. As soon
    as Johnson stepped out of the car, “he turned and he faced toward [Officer Shaughnessy], and he
    kind of hunched over a little bit, and he stuck his right hand into to the small of his back at his
    waistline, and then he started backing up, started backing up away from [Officer Shaughnessy],
    . . . toward the front of his car.” J.A. at 226. According to Officer Shaughnessy, “it appeared as
    though [Johnson] was trying to pull something out, or put something in his pants.” J.A. at 74.
    Fearing that Johnson might have a weapon, Officer Shaughnessy immediately drew his own gun and
    ordered Johnson to show his hands and walk toward the police cruiser.
    During this time, other CPD officers, including Officer Daniel Svoboda (“Svoboda”), had
    arrived on the scene and had begun to move toward the Taurus to assist Officer Shaughnessy. When
    Johnson failed to comply with several of Officer Shaughnessy’s verbal requests to show his hands,
    Officer Svoboda also drew his gun and advanced toward Johnson. Officer Svoboda observed that,
    instead of complying with Officer Shaughnessy’s instructions, Johnson was “reaching behind his
    back,” J.A. at 270, where it “appeared he was holding something down out of his back or hands.”
    J.A. at 118. Once Officer Svoboda drew his weapon, Johnson complied with the request to show
    his hands and moved toward Officer Shaughnessy who began to frisk Johnson in search of weapons.
    From this protective pat-down of Johnson, Officer Shaughnessy recovered nine small plastic bags
    containing marijuana.
    As Officer Shaughnessy was conducting his pat-down of Johnson, Officer Svoboda walked
    towards the now empty Taurus.1 Looking through the passenger’s side window, Officer Svoboda
    saw “a magazine or clip from a gun laying on the passenger floorboard” in plain view. J.A. at 272.
    At that point, Officer Svoboda immediately shouted “gun.” Upon hearing this warning, Officer
    Shaughnessy placed handcuffs on Johnson and other officers detained Pearce who was still in the
    immediate vicinity of the Taurus. Officer Svoboda and other CPD officers then searched the Taurus.
    Their search uncovered a Hi-Point 9mm pistol with seven rounds of ammunition underneath the
    passenger seat, as well as crack cocaine, a Bryco 9mm pistol, and twelve rounds of ammunition
    between the driver’s seat and the middle console of the vehicle.
    While still being detained by Officer Shaughnessy, Johnson voluntarily informed the officer
    that he was the owner of one of the guns. Johnson again confirmed that he possessed the Bryco
    firearm in a subsequent interview with Agent Christopher Arone from the United States Bureau of
    Alcohol, Tobacco, and Firearms. Pearce never admitted to ownership of either weapon.
    1
    By now, Pearce had exited the Taurus. However, as the police officers were focused on Johnson because of
    his odd behavior when exiting the vehicle, the record does not clearly indicate at what precise point in time Pearce got
    out of the Taurus.
    Nos. 07-3146/3193                United States v. Pearce, et al.                               Page 3
    Based upon the firearms discovered during the search of the Taurus, on March 9, 2005,
    Defendants were charged in the United States District Court for the Northern District of Ohio with
    one count each of being a convicted felon in possession of a firearm and ammunition, in violation
    of 18 U.S.C. § 922(g)(1). On June 9, 2005, Pearce filed a motion to suppress evidence. On
    December 16, 2005, Johnson filed a motion to suppress all evidence which the law enforcement
    officers had obtained as a result of their stop of him and their subsequent search of the Taurus. After
    conducting an evidentiary hearing, the district court denied these motions on August 1, 2006.
    On December 4, 2006, the case proceeded to a jury trial. At the conclusion of the evidence,
    Defendants again requested the district court to suppress the evidence obtained following the
    allegedly unconstitutional stop of Johnson. These motions, like their previous ones, were denied.
    The jury subsequently convicted Defendants of the felon in possession charges.
    On January 31, 2007, the district court held Defendants’ sentencing hearing. The district
    court found both Defendants to be armed career criminals, and thus required to serve a minimum
    of fifteen years imprisonment pursuant to 18 U.S.C. § 924(e). With respect to Johnson, the district
    court noted that the advisory United States Sentencing Guidelines (the “Guidelines”) range was 188
    to 235 months. With respect to Pearce, the district court calculated the advisory Guidelines range
    to be 235 to 293 months. After considering arguments raised by Defendants, as well as the specific
    characteristics of each of them, the district judge sentenced Johnson to 188 months imprisonment,
    followed by five years of supervised release, and sentenced Pearce to 235 months imprisonment,
    followed by five years of supervised release.
    On February 1, 2007, Pearce filed a timely notice of appeal. Shortly thereafter, on February
    12, 2007, Johnson filed his notice of appeal. The appeals were subsequently consolidated as they
    involve the same general issues of law and fact.
    II. DISCUSSION
    On appeal, Defendants challenge the district court’s denial of their motions to suppress the
    evidence obtained following the police officers’ initial stop of Johnson. Specifically, Defendants
    argue that, because the officers lacked either reasonable suspicion or probable cause for this stop,
    it was unlawful under the Fourth Amendment, and thus any evidence obtained as a result of the stop
    and the subsequent search of the Taurus must be suppressed. Additionally, Pearce claims that the
    district court abused its sentencing discretion by imposing his 235-month sentence without
    addressing the sentencing factors set forth in 18 U.S.C. § 3553(a). We find both of these arguments
    to lack merit and accordingly affirm Defendants’ convictions and sentences.
    A. Denial of Motion to Suppress
    1. Standard of Review
    On appeal of a district court’s ruling on a motion to suppress, we review the district court’s
    factual findings for clear error and its legal conclusions de novo. United States v. Moon, 
    513 F.3d 527
    , 536 (6th Cir. 2008). Whether a search was reasonable under the Fourth Amendment is a
    question of law which is reviewed de novo. United States v. Blair, 
    524 F.3d 740
    , 747 (6th Cir.
    2008); see Ornelas v. United States, 
    517 U.S. 690
    , 691 (1996) (holding that “the ultimate questions
    of reasonable suspicion and probable cause to make a warrantless search should be reviewed de
    novo”). When a district court has denied the motion to suppress, we must “consider the evidence
    in the light most favorable to the government.” United States v. Carter, 
    378 F.3d 584
    , 587 (6th Cir.
    2004) (en banc).
    Nos. 07-3146/3193                United States v. Pearce, et al.                                Page 4
    2. Analysis
    The Fourth Amendment provides that “[t]he right of the people to be secure in their persons,
    houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S.
    Const. amend. IV. “A warrantless search or seizure is ‘per se unreasonable under the Fourth
    Amendment–subject only to a few specifically established and well-delineated exceptions.’” United
    States v. Roark, 
    36 F.3d 14
    , 17 (6th Cir. 1994) (quoting Katz v. United States, 
    389 U.S. 347
    , 357
    (1967)). The Supreme Court has identified three types of reasonable, and thus permissible,
    warrantless encounters between the police and citizens: (1) consensual encounters in which contact
    is initiated by a police officer without any articulable reason whatsoever and the citizen is briefly
    asked questions; (2) a temporary involuntary detention or Terry stop which must be predicated upon
    “reasonable suspicion;” and (3) arrests which must be based upon “probable cause.” United States
    v. Alston, 
    375 F.3d 408
    , 411 (6th Cir. 2004) (quoting United States v. Bueno, 
    21 F.3d 120
    , 123 (6th
    Cir. 1994)).
    The second of these exceptions was first spelled out by the Supreme Court in Terry v. Ohio,
    
    392 U.S. 1
    (1968), where it held that “an officer may, consistent with the Fourth Amendment,
    conduct a brief, investigatory stop when the officer has a reasonable articulable suspicion that
    criminal activity is afoot.” Illinois v. Wardlow, 
    528 U.S. 119
    , 123 (2000) (citing 
    Terry, 392 U.S. at 30
    ). To determine whether a particular stop is permissible under the Fourth Amendment, a court
    “must look at the ‘totality of the circumstances’ of [the] case to see whether the detaining officer has
    a ‘particularized and objective’ basis for suspecting legal wrongdoing.” United States v. Arvizu, 
    534 U.S. 266
    , 273 (2002) (quoting United States v. Cortez, 
    449 U.S. 411
    , 417-18 (1981)). “This process
    allows officers to draw on their own experience and specialized training to make inferences from
    and deductions about the cumulative information available to them that ‘might well elude an
    untrained person.’” 
    Id. (quoting Cortez,
    449 U.S. at 418); see also 
    Ornelas, 517 U.S. at 699
    (noting
    that appellate courts must “give due weight to inferences drawn from [the] facts by resident judges
    and local law enforcement”). While an “officer must be able to articulate more than an inchoate and
    unparticularized suspicion or ‘hunch’ of criminal activity” in order to justify a investigatory stop,
    
    Wardlow, 528 U.S. at 123-24
    (internal quotation marks omitted), “the likelihood of criminal activity
    need not rise to the level required for probable cause, and it falls considerably short of satisfying a
    preponderance of the evidence standard.” 
    Arvizu, 534 U.S. at 274
    (citing United States v. Sokolow,
    
    490 U.S. 1
    , 7 (1989)).
    After detaining a person for a Terry stop, the officer may conduct a “reasonable search for
    weapons . . . where he has reason to believe that he is dealing with an armed and dangerous
    individual.” 
    Terry, 392 U.S. at 27
    . However, in order to arrest the person or to conduct a
    subsequent search of the person’s vehicle or packages, the officer must have “probable cause to
    believe that a criminal offense has been or is being committed.” Devenpeck v. Alford, 
    543 U.S. 146
    ,
    152 (2004). “Probable cause exists if the facts and circumstances known to the officer warrant a
    prudent man in believing that an offense has been committed.” Henry v. United States, 
    361 U.S. 98
    ,
    102 (1959); accord Beck v. Ohio, 
    379 U.S. 89
    , 91 (1964); Brinegar v. United States, 
    338 U.S. 160
    ,
    175-76 (1949); Logsdon v. Hains, 
    492 F.3d 334
    , 341 (6th Cir. 2007). “Whether probable cause
    exists depends on the reasonable conclusion to be drawn from the facts known to the arresting
    officer at the time of the arrest.” 
    Devenpeck, 543 U.S. at 152
    .
    In order to deter law enforcement officials from violating the Fourth Amendment by stopping
    persons without reasonable suspicion or by arresting them without probable cause, the Supreme
    Court has directed that “all evidence obtained by an unconstitutional search and seizure [is]
    inadmissible in federal court regardless of its source.” Mapp v. Ohio, 
    367 U.S. 643
    , 654 (1961); see
    also Weeks v. United States, 
    232 U.S. 383
    (1914) (establishing the exclusionary rule). This
    exclusionary rule is supplemented by the “fruit of the poisonous tree” doctrine, which bars the
    admissibility of evidence which police derivatively obtain from an unconstitutional search or
    Nos. 07-3146/3193                      United States v. Pearce, et al.                                          Page 5
    seizure. See Wong Sun v. United States, 
    371 U.S. 471
    , 484-85 (1963); Silverthorne Lumber Co. v.
    United States, 
    251 U.S. 385
    , 392 (1920). However, in order to exclude evidence under these
    constitutional doctrines, the defendant must show more than “the mere fact that a constitutional
    violation was a ‘but-for’ cause of [the police’s] obtaining [the] evidence.” Hudson v. Michigan, 
    547 U.S. 586
    , 592 (2006). “[B]ut-for causality is only a necessary, not sufficient condition for
    suppression.” 
    Id. “Rather, the
    more apt question in such a case is whether, granting establishment
    of the primary illegality, the evidence to which instant objection is made has been come at by
    exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the
    primary taint.” 
    Id. (quoting Wong
    Sun, 371 U.S. at 487-88 
    (internal quotation marks omitted)).
    In the instant case, we find that Johnson was not unreasonably seized in violation of the
    Fourth Amendment. As a preliminary matter, we note that Pearce does not have standing under the
    Fourth Amendment to challenge Officer Shaughnessy’s initial stop of Johnson. The Supreme Court
    has found that “‘Fourth Amendment rights are personal rights which, like some other constitutional
    rights, may not be vicariously asserted.’” Rakas v. Illinois, 
    439 U.S. 128
    , 133-34 (1978) (quoting
    Alderman v. United States, 
    394 U.S. 165
    , 174 (1969)). “In order to qualify as a person aggrieved
    by an unlawful search and seizure one must have been a victim of a search or seizure, one against
    whom the search was directed, as distinguished from one who claims prejudice only thorough the
    use of evidence gathered as a consequence of a search or seizure directed at someone else.” 
    Id. at 134-35
    (internal quotation marks omitted) (emphasis altered); see also Minnesota v. Carter, 
    525 U.S. 83
    , 88 (1998) (“[I]n order to claim the protection of the Fourth Amendment, a defendant must
    demonstrate that he personally has an expectation of privacy in the place searched, and that his
    expectation is reasonable.” (emphasis added)). As Pearce himself was not seized or detained in any
    manner during Officer Shaughnessy’s initial stop of Johnson, he has no standing under the Fourth
    Amendment to challenge the lawfulness of that stop. While Pearce would have standing to
    challenge his own arrest, and possibly the police’s subsequent search of the Taurus, for lack of
    probable cause, he has failed to do so. Moreover, even if Pearce had brought such a challenge, it
    would lack merit. After Officer Svoboda observed a gun magazine in plain view on the passenger-
    side floorboard of the car which Pearce had just exited, the police clearly had probable cause to
    arrest Pearce and to search the vehicle. Accordingly, we affirm the district court’s denial of Pearce’s
    motion to suppress.
    While Johnson’s motion to suppress does not suffer from a standing deficiency like Pearce’s
    motion, we find that it was nevertheless appropriately denied on its merits.2 Officer Shaughnessy’s
    2
    As an initial matter, we note that Johnson’s suppression argument seems to be somewhat misguided. Johnson
    focuses exclusively upon the legality of the stop by Officer Shaughnessy. However, the only evidence actually derived
    from this stop were the bags of marijuana found on Johnson’s person during Officer Shaughnessy’s protective pat-
    down–evidence that is irrelevant for the purpose of determining whether Johnson had possessed a firearm as a previously
    convicted felon, in violation of 18 U.S.C. § 922(g). Johnson appears to presume that, under the “fruit of the poisonous
    tree” doctrine, the legality of the officers’ subsequent search of the Taurus, which uncovered the relevant firearms
    evidence, is dependent upon the initial legality of Officer Shaughnessy’s stop. Yet, as noted above, the “fruit of the
    poisonous tree” doctrine only precludes the admission of evidence that “has been come at by exploitation of [the]
    illegality” of the search or seizure. 
    Hudson, 547 U.S. at 592
    (quoting Wong 
    Sun, 371 U.S. at 488
    ). In the instant case,
    the police did not obtain the firearms evidence as a result of Officer Shaughnessy’s stop of Johnson, but rather because
    of Officer Svoboda’s separate observation of a gun magazine laying in plain view on the passenger side floorboard of
    the Taurus. While it might be argued that Officer Svoboda would never have looked in the Taurus but for Officer
    Shaughnessy’s stop of Johnson, such but-for causality is not sufficient to trigger the exclusionary rule. See 
    Hudson, 547 U.S. at 592
    . On the contrary, Officer Svoboda’s observation of the gun magazine as he walked by the Taurus–something
    which he arguably would have done anyway, as part of his sweep of the area, regardless of Officer Shaughnessy’s stop
    of Johnson–seems to constitute a means of discovery “sufficiently distinguishable to be purged of the primary taint” of
    Officer Shaughnessy’s allegedly illegal stop. 
    Id. (quoting Wong
    Sun, 371 U.S. at 488
    ). Nevertheless, we need not reach
    this “fruit of the poisonous tree” issue to resolve this case because we find that Officer Shaughnessy’s stop of Johnson
    was permissible under the Fourth Amendment.
    Nos. 07-3146/3193                      United States v. Pearce, et al.                                         Page 6
    brief investigatory detention of Johnson3 was permissible under the Fourth Amendment because,
    in light of the totality of the circumstances, Officer Shaughnessy had an objectively reasonable
    suspicion that “his safety or that of others was in danger.” 
    Terry, 392 U.S. at 27
    . When Officer
    Shaughnessy entered a known high-crime area in his marked police cruiser, he observed Johnson
    exit a vehicle, glance towards him, hunch over, place his right hand in the small of his back, and
    start backing away. Based on his “own experience and specialized training,” 
    Arvizu, 534 U.S. at 273
    , Officer Johnson reasonably suspected that “Johnson had a weapon and was getting ready to
    fire.” J.A. at 75-76. Indeed, even from a layman’s perspective, Johnson’s behavior, while
    susceptible of an innocent explanation–Johnson may have simply been trying to put his wallet
    away–might also have been reasonably viewed as an attempt to conceal a weapon and/or other
    contraband material, such as narcotics, from a police officer who had just appeared on the scene.
    See 
    Arvizu, 534 U.S. at 277
    (“A determination that reasonable suspicion exists . . . need not rule out
    the possibility of innocent conduct.”). When combined with the fact that Johnson was engaged in
    such behavior in an area known for criminal activity and on a street where a crime-related homicide
    had recently occurred, Officer Shaughnessy’s observations provided a sufficient basis for
    temporarily detaining Johnson to determine whether or not he was actually engaged in wrongdoing.
    See, e.g., United States v. Paulette, 
    457 F.3d 601
    , 606 (6th Cir. 2006) (finding that “the officers had
    a reasonable suspicion that [the defendant] was engaged in criminal activity based upon his hand
    movements consistent with drug-dealing activity, efforts to evade the police upon noticing them, and
    presence in a high crime area”); see also 
    Wardlow, 528 U.S. at 124
    (noting that, while an
    “individual’s presence in an area of expected criminal activity, standing alone, is not enough to
    support a reasonable, particularized suspicion that the person is committing a crime,” police
    “officers are not required to ignore the relevant characteristics of a location in determining whether
    the circumstances are sufficiently suspicious to warrant further investigation”).
    The cases cited by Johnson in support of his contention that Officer Shaughnessy lacked
    reasonable suspicion are inapposite. In United States v. Patterson, we found that police officers
    lacked reasonable suspicion for a Terry stop of the defendant when, acting on an anonymous tip
    from a drug hotline, they went to a particular street corner and observed the defendant’s companion
    throw an object away after seeing the officers approaching. 
    340 F.3d 368
    , 370-72 (6th Cir. 2003).
    In reaching our conclusion in that case, we emphasized that the officers there lacked an
    individualized suspicion that the defendant was engaged in wrongdoing. See 
    id. at 372.
    Unlike the
    officers in Patterson, however, Officer Shaughnessy did not stop Johnson because of the activities
    of other persons in the same general area, but rather because of Johnson’s own hunching forward
    and hand-placement which reasonably suggested that he might be carrying a weapon.
    In United States v. Baldwin, we found that the police lacked reasonable suspicion to detain
    the defendant when the police heard gunshots in a particular area, briefly followed an individual
    fleeing from that area, and then came across the defendant in his car after losing the trail of the
    fleeing individual. 114 F. App’x 675, 679-81 (6th Cir. 2004) (unpublished). In reaching that
    conclusion, we noted that “[e]ven if the fleeing pedestrian may have been involved in the shooting
    incident, as the Government contends, there has been no showing of any specific, articulable facts
    which gave rise to a reasonable suspicion that [the defendant] was connected to the firing of the
    gunshots.” 
    Id. at 680.
    The instant case, however, is quite distinguishable. As opposed to the record
    in Baldwin, where the only evidence suggesting that the defendant was involved in criminal activity
    was his presence in an area near a crime scene, the testimony in this case demonstrates that not only
    3
    The government appropriately does not dispute that Officer Shaughnessy’s drawing of his gun and his
    instruction to Johnson to “raise his hands” constitutes a stop under Terry. See Brendlin v. California, 
    127 S. Ct. 2400
    ,
    2405 (2007) (“A person is seized by the police and thus entitled to challenge the government action under the Fourth
    Amendment when the officer, by means of physical force or show of authority, terminates or restrains his freedom of
    movement.” (internal quotation marks omitted)).
    Nos. 07-3146/3193                      United States v. Pearce, et al.                                           Page 7
    was Johnson in a high-crime area, but that he was also acting in a way suggestive of his carrying of
    a gun.
    In summary, we conclude that Officer Shaughnessy had reasonable suspicion to stop Johnson
    for a brief investigatory detention and to conduct a protective pat-down to ensure that Johnson was
    not carrying any weapons. As this stop was lawful under the Fourth Amendment, we hold that any
    evidence discovered by the police while conducting it or as a potential result of it–i.e., the firearms
    evidence uncovered during the4 police’s subsequent search of the Taurus–was properly not
    suppressed by the district court. Accordingly, we affirm the district court’s denial of Johnson’s
    motion to suppress.
    B. Procedural Reasonableness of Pearce’s Sentence
    1. Standard of Review
    We “review a district court’s sentencing determination, ‘under a deferential abuse-of-
    discretion standard,’ for reasonableness.” United States v. Lalonde, 
    509 F.3d 750
    , 769 (6th Cir.
    2007) (quoting Gall v. United States, 
    128 S. Ct. 586
    , 591 (2007)). This reasonableness review
    contains procedural and substantive components. See 
    Gall, 128 S. Ct. at 597
    ; United States v. Bolds,
    
    511 F.3d 568
    , 579 (6th Cir. 2007). With respect to the procedural component of sentencing, our task
    is to “ensure that the district court: (1) properly calculated the applicable advisory Guidelines range;
    (2) considered the other § 3553(a) factors as well as the parties’ arguments for a sentence outside
    the Guidelines range; and (3) adequately articulated its reasoning for imposing the particular
    sentence chosen, including any rejection of the parties’ arguments for an outside-Guidelines
    sentence and any decision to deviate from the advisory Guidelines range.” 
    Bolds, 511 F.3d at 581
    ;
    see also 
    Gall, 128 S. Ct. at 597
    (directing appellate courts to “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 § 3553(a) factors,
    selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen
    sentence – including an explanation for any deviation from the Guidelines range”). Only after we
    have completed this task and have determined that the district court committed no significant
    procedural error do we then consider any challenges raised regarding the substantive reasonableness
    of the defendant’s sentence. In evaluating the substantive aspect of a sentence, we may apply a
    rebuttable presumption of reasonableness to sentences within the Guidelines. See 
    Gall, 128 S. Ct. at 597
    ; 
    Bolds, 511 F.3d at 581
    . We also “give ‘due deference’ to the district court’s conclusion that
    the sentence imposed is warranted by the § 3553(a) factors.” 
    Bolds, 511 F.3d at 581
    (quoting 
    Gall, 128 S. Ct. at 597
    ).
    2.       Analysis
    Upon review of the sentencing transcript in this case,5 we find that the district court did not
    commit any “significant procedural error.” 
    Gall, 128 S. Ct. at 597
    . Contrary to what Pearce
    suggests, the district court explicitly recognized at the outset of the sentencing hearing that, while
    4
    As we have already noted, we are not convinced that the firearms evidence uncovered during the police
    officer’s search of the Taurus is the fruit of their stop of Johnson. See supra note 2. However, even if such a search is
    properly viewed as derivative of Officer Shaughnessy’s stop of Johnson, we note that the search would be justified by
    probable cause. Once Officer Svoboda observed a gun magazine lying in plain view in the vehicle, the officers had
    sufficient justification to search the vehicle for weapons.
    5
    Pearce’s sentencing “arguments” in this case have provided us with little guidance as to which, if any,
    procedural errors the district court committed when sentencing him. Rather than pointing to any specific errors made
    by the district court at sentencing, Pearce’s appellate brief consists primarily of a discussion of post-Booker sentencing
    law without any explanation of how the facts in this case demonstrate a violation of such law.
    Nos. 07-3146/3193               United States v. Pearce, et al.                              Page 8
    it would need to calculate the advisory Guidelines range for each defendant, it would not be bound
    by that range and would, in fact, be required to consider the other § 3553(a) factors when crafting
    a sentence. The district court then proceeded to calculate Pearce’s advisory Guidelines range as 235
    to 293 months, at which point it noted that Pearce was an armed career criminal, pursuant to 18
    U.S.C. § 924(e), and thus statutorily required to serve at least fifteen years imprisonment. After
    calculating the advisory Guidelines range, the district court heard arguments from Pearce’s attorney
    who asked the court to consider Pearce’s family background, the other § 3553(a) factors, and the
    potential longevity of the sentence. The district judge then explained to Pearce that, pursuant to
    recent Supreme Court cases, he had discretion to impose a sentence outside of the Guidelines, but
    that “there is a strong argument that a Guidelines sentence is fair and appropriate.” J.A. at 444.
    Next, the court considered Pearce’s unique circumstances, emphasizing in particular his extensive
    criminal background. Finally, the district court sentenced Pearce to 235 months imprisonment,
    followed by five years of supervised release, the lowest term recommended by the Guidelines.
    This record does not reveal any significant procedural errors. The district judge correctly
    calculated the applicable advisory Guidelines range, listened to the arguments presented by Pearce,
    and responded with an explanation of why he felt the Guidelines provided an appropriate sentence
    for Pearce. While the district court did not explicitly name the particular § 3553(a) factors he was
    considering when imposing Pearce’s sentence, the record does not demonstrate that he failed to
    consider them. Rather, the record reflects that the district court, well-aware of its sentencing
    discretion, thoughtfully exercised that discretion to impose a sentence at the lower end of the
    advisory Guidelines range. Pearce has offered no credible argument to suggest that the district court
    simply ignored the other § 3553(a) factors and blindly applied a Guidelines sentence. Pearce has
    likewise failed to challenge the substantive reasonableness of his sentence. Accordingly, we hold
    that the district court did not abuse its sentencing discretion in Pearce’s case.
    III. CONCLUSION
    For the foregoing reasons, the convictions and sentences imposed by the district court are
    AFFIRMED.