               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0062n.06

                                         No. 13-5391

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                      FILED
UNITED STATES OF AMERICA,                         )               JAN 23, 2014
                                                  )         DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )      ON APPEAL FROM THE UNITED
                                                  )      STATES DISTRICT COURT FOR
MICHAEL DARDEN,                                   )      THE WESTERN DISTRICT OF
                                                  )      TENNESSEE
       Defendant-Appellant.                       )



       BEFORE: ROGERS, McKEAGUE, and WHITE, Circuit Judges.



       PER CURIAM. Michael Darden appeals his sentence. We affirm.

       Darden pleaded guilty of being a felon in possession of a firearm, in violation of

18 U.S.C. § 922(g). The district court determined that his base offense level was 20. The court

added two levels because the firearm had been stolen (§ 2K2.1(b)(4)(A)); added four levels

because Darden possessed the firearm in connection with a felony drug offense (USSG

§ 2K2.1(b)(6)(B)); and subtracted two levels for acceptance of responsibility (§ 3E1.1(a)),

resulting in a total offense level of 24. Based on the total offense level of 24 and a criminal

history category of V, Darden’s guidelines range was 92 to 115 months of imprisonment. The

district court sentenced him to 92 months in prison, to be followed by two years of supervised

release.

       On appeal, Darden raises the following arguments: (1) the government’s refusal to move

for an additional one-level decrease for acceptance of responsibility under USSG § 3E1.1(b) was
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United States v. Darden

arbitrary; (2) the district court erred by requiring him to submit to unlimited drug testing during

his term of supervised release; and (3) there is a discrepancy between the district court’s oral

sentence and the written judgment concerning whether his probation officer may require him to

participate in drug treatment during his term of supervised release.

                                              Facts

       On January 12, 2011, officers with the Shelby County Sheriff’s office sought to locate

and arrest Brian Lackland on an outstanding warrant.         During surveillance, Lackland was

observed in a vehicle with Darden in the driver’s seat. The vehicle was stopped, and officers

smelled marijuana as they approached.       As Darden exited the vehicle, officers observed a

revolver wedged between the driver’s seat and the center console and a marijuana cigarette in the

driver’s door pocket. A check revealed the gun had been reported stolen. Lackland and Darden

were arrested, and the vehicle was searched.         Officers recovered a gray skull cap on the

passenger seat containing marijuana and narcotics. Agents asked Lackland if the cap was his,

but before Lackland could respond, Darden stated that the gun and the drugs were his.

       Darden was charged with being a felon in possession of a firearm and pleaded guilty to

the charge.   PID 2; Minute Entry, R 19.         Darden’s PSR included a four-level guideline

enhancement under U.S.S.G. § 2K2.1(b)(6) for possessing a firearm in connection with a drug-

trafficking offense. PSR, p. 4. Prior to his sentencing hearing, Darden submitted a Position

Paper objecting to the accuracy of paragraph 5 of the PSR, which states: “Darden stated that the

gun and the drugs were his.” PID 51–52. Darden responds: “Mr. Darden accepts responsibility

for the firearm but vehemently denies that the drugs located underneath the grey skull cap in the

passenger seat were his. He further denies that he was drug trafficking.” Id.




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       During the sentencing hearing, Darden objected to the four-level enhancement for

possession of a fire arm in connection with a felony drug offense. PID 78. The government

argued that Darden pled guilty to possessing the gun and the drugs at his plea hearing, but

because he now knew he would receive a four-level increase, he was disavowing any connection

with drugs. PID 91. The defense countered that Darden had always said the drugs were not his

(PID 92), and Darden testified that he never made a statement that the drugs and the gun were

his. PID 119. The government called three officers as witnesses who testified that Darden said

during his arrest that the gun and the drugs were his. PID 85, 98, 112. Although the district

court noted Darden was never asked about drugs during the change of plea hearing in which

Darden pled guilty, the district court credited the officer’s testimony and ruled that the

government carried its burden of proving possession of a firearm in connection with drug

trafficking. PID 132–33.

       The government then asserted that Darden had not accepted responsibility, arguing that

because Darden denied that he possessed the gun, he was denying information that comprised the

offense in contravention of the sentencing guideline in § 1E1.3. PID 136–37. The defense

countered that Darden had timely accepted responsibility for his conduct because he “always

admitted the gun was his.” Id. The district court granted Darden the two-level adjustment for

acceptance of responsibility, reasoning that during the plea hearing, Darden was confronted with

possession of the weapon, and he freely admitted to it. PID 138. The district court held that

Darden was not entitled to the third level adjustment “in light of everything I’ve heard. In light

of the position of the government.” PID 138–39. Darden’s Guideline’s sentencing range was

calculated to be a total offense level of twenty four. The district court asked if there were “any

other objections to the Presentence Report, the facts, as well as the calculation.” PID 140. There


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United States v. Darden

were none. Id. The district court sentenced Darden to 92 months’ imprisonment, followed by

two years of supervised release. PID 153–54. Following sentencing, the district court asked if

there was “anything else from probation?” and “anything else from [the defense]?” PID 155.

Nothing further was raised. Id.

       The district court ordered that Darden participate in drug testing under the direction of the

probation office during his supervised release:

       Normally, I wouldn’t do that in light of the fact that there is really nothing in the
       Presentence Report to indicate a problem with drugs. The only two things that
       make me make that recommendation are, number one, the drugs found in the car.
       But number two, Mr. Darden is in a substance abuse group at the correctional
       center, so there must be some reason that he has in his mind for doing that.

PID 155.

        However, when asked by defense counsel if he would recommend Darden for a 500-hour

drug program, the district court stated:

       I don’t know that I have the basis for that . . . . I mean, there is no demonstration
       with the exception of just presently enrolled in substance abuse group,
       demonstration of any type of addiction or anything along those lines.

PID 156. The district court further noted that if placed in the drug program, it would not be close

to home.     Defense counsel responded that Darden understood that, and explained that

“sometimes they can participate in the program just for the benefit of it . . . even though they

may not get any credit.” PID 157.

                                             Analysis

       Darden first argues that he was entitled to a one-level decrease for acceptance of

responsibility under § 3E1.1(b) and that the government acted arbitrarily in declining to move for

the reduction. Under the procedural rule set out in United States v. Bostic, the district court must

clearly ask the parties whether they have any objections to the sentence not previously raised


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United States v. Darden

after pronouncing the sentence but before adjourning the sentencing hearing. United States v.

Bostic, 371 F.3d 865, 872 (2004), cert. denied, 552 U.S. 965 (2007). Although the district court

asked for objections following the guidelines calculation, it did not clearly ask whether the

parties had any objections not previously raised after pronouncing the sentence. We therefore

review the district court’s sentencing determination under an abuse-of-discretion standard. Id;

see also United States v. Batti, 631 F.3d 371, 379 n.2 (6th Cir. 2011); United States v. Bey, 384

F. App’x 486, 489 (6th Cir. 2010).       A defendant may receive a one-level decrease under

§ 3E1.1(b) only where the government moves for such a reduction.           Id. “[T]he one-level

reduction in subsection (b) is permitted only if the government moves for it in a motion stating

that “the defendant has assisted authorities in the investigation or prosecution of his own

misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby

permitting the government to avoid preparing for trial and permitting the government and the

court to allocate their resources efficiently. . . .” U.S. Sentencing Guidelines Manual § 3E1.1(b)

(2011). The government’s discretion to file the motion is subject only to the limitation that its

refusal to do so cannot be based on a constitutionally impermissible factor and cannot be

arbitrary. United States v. Collins, 683 F.3d 697, 704–05 (6th Cir.), cert. denied, 133 S. Ct. 571

(2012). This means that the prosecutor's decision must bear a rational relation to a legitimate

government end and must not be based on factors such as religion, sex, or race. Id. (citing

United States v. Lapsins, 570 F.3d 578, 769 (6th Cir. 2009)). The defendant must present

“objective evidence of an improper motive or arbitrary action” to overcome the government's

decision not to file a § 3E1.1(b) motion. Id.

       The district court did not abuse its discretion in declining to reduce Darden’s offense

level under § 3E1.1(b).      At sentencing, Darden contested the four-level increase under


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United States v. Darden

§ 2K2.1(b)(6)(B) on the basis that he never admitted that the drugs found in his vehicle belonged

to him. The government was required to present testimony to the contrary from three law

enforcement officers.     Given Darden’s testimony and the testimony of the officers, it was

reasonable for the government to assert that Darden had not fully accepted responsibility, and, as

a result, the government’s decision to refrain from filing a motion under § 3E1.1(b) was not

arbitrary. See Collins, 683 F.3d at 707 (holding that the government’s decision to withhold the

motion was not arbitrary or unconstitutionally motivated where it was required to undertake trial-

like preparations to defend a motion to suppress); Laspins, 570 F.3d at 758 (holding that the

government’s refusal to move for the a third-level reduction was not arbitrary or unconstitutional

where the defendant filed numerous objections to the PSR recanting previous statements);

Coleman, 627 F.3d at 215 (holding that the government had a non-arbitrary good faith belief that

Coleman had not accepted responsibility where he made a threatening phone call to a witness).

       Darden next argues that the special condition of his supervised release requiring him to

submit to unlimited drug testing at his probation officer’s discretion is not supported by the facts

of the case. Because the district court failed to ask Darden for objections after specifying the

conditions of his supervised release, we review the reasonableness of the special condition for an

abuse of discretion. See United States v. Stepp, 680 F.3d 651, 671 (6th Cir. 2012). “District

courts are permitted to impose any special conditions of supervised release they deem reasonably

related to the enumerated sentencing factors. Id. at 671 (citing 18 U.S.C. § 3583(d)). On the

procedural side, we ask whether the district court adequately stated in open court at the time of

sentencing its rationale for mandating special conditions of supervised release.          Id.   The

substantive inquiry asks whether the condition of supervised release is reasonably related to the

dual goals of probation, the rehabilitation of the defendant and the protection of the public. Id.


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Any conditions imposed must involve no greater deprivation of liberty than is reasonably

necessary for the sentencing purposes and must be consistent with any pertinent policy

statements issued by the Sentencing Commission. Id.

       The district court has adequately stated its rationale for mandating drug testing in this

case. Darden argues the district court abused its discretion by requiring unlimited drug testing

even though, by the court’s own admission, he has no history of substance abuse. Although this

court has vacated a drug treatment condition where drug use had no relation to any of the

offenses in the indictment, United States v. Frazier, No. 12–3887, 2013 WL 6224032, at * 5 (6th

Cir. Dec. 2, 2013), Darden had numerous prior offenses involving controlled substances, several

officers testified that Darden admitted that the drugs found in his vehicle belonged to him, and

Darden had participated in a substance-abuse program while incarcerated.           See 18 U.S.C.

§ 3583(d); United States v. Gaynor, 530 F. App’x 536, 540–41 (6th Cir. 2013). Considering the

evidence as a whole, the district court did not abuse its discretion by requiring Darden to submit

to periodic drug testing at his probation officer’s discretion.

       Finally, Darden argues that there is a discrepancy between the district court’s oral

sentence and the written judgment concerning whether his probation officer may require him to

participate in drug treatment during his term of supervised release. Generally, when an oral

sentence conflicts with the written judgment, the oral sentence controls. United States v. Denny,

653 F.3d 415, 421 (6th Cir. 2011). Where an oral sentence is ambiguous, however, the written

judgment may be used to resolve the ambiguity and determine the intended sentence. Id.

       The district court’s oral sentence was ambiguous to the extent that the court ordered

Darden to participate in drug treatment during his term of supervised release, but concluded that

there was no basis to recommend him for the 500-hour substance abuse program while he was


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incarcerated. However, the written judgment clarified that the court intended to subject Darden

to periodic drug testing, not drug treatment, during his term of supervised release.

       Accordingly, we affirm Darden’s sentence.




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