                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0587n.06

                                           No. 12-6212
                                                                                        FILED
                          UNITED STATES COURT OF APPEALS                             Jun 18, 2013
                               FOR THE SIXTH CIRCUIT                           DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )       ON APPEAL FROM THE
                                                         )       UNITED STATES DISTRICT
               v.                                        )       COURT FOR THE EASTERN
                                                         )       DISTRICT OF KENTUCKY
FRED FELTMAN ROSER, IV,                                  )
                                                         )
       Defendant-Appellant.                              )
                                                         )



BEFORE: MOORE and GRIFFIN, Circuit Judges; and SARGUS, District Judge.*

       GRIFFIN, Circuit Judge.

       On September 28, 2010, police executed search warrants at two residences in Lexington,

Kentucky, where officers discovered large quantities of cocaine and marijuana and an arsenal of

firearms. Defendant Fred Feltman Roser lived at one of the residences and frequently visited the

other. Defendant pleaded guilty to conspiracy to distribute cocaine, conspiracy to distribute

marijuana, and possession of firearms in furtherance of drug trafficking crimes.

       The advisory Guidelines range for the drug convictions was 57 to 71 months of

imprisonment, and defendant faced a 60-month statutory sentence for the firearm conviction. The

district court denied defendant’s motion for a downward departure under U.S.S.G. §§ 5H1.3 (mental


       *
        The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District
of Ohio, sitting by designation.
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United States v. Roser


and emotional conditions) and 5K2.13 (diminished capacity). Nonetheless, the district court agreed

to downward depart based on defendant’s substantial assistance to law enforcement. Having

considered the advisory Guidelines, as well as the factors set forth in 18 U.S.C. § 3553(a), the district

court ultimately sentenced defendant to fifty months of imprisonment and four years of supervised

release. Defendant appeals the district court’s judgment. For the reasons that follow, we affirm.

        Defendant first argues that the district court erred when it denied his motion for a downward

departure under U.S.S.G.§§ 5H1.3 and 5K2.13. “We have consistently held that the decision by a

district court not to depart downwards from the Guidelines is not reviewable on appeal unless the

record reflects that the district court was not aware of or did not understand its discretion to make

such a departure.” United States v. Butler, 207 F.3d 839, 843 (6th Cir. 2000); see also United States

v. Bazazpour, 690 F.3d 796, 804 (6th Cir. 2012). Because the record in this case shows that the

district court was aware of, and fully understood, its discretion to depart downward, we are without

authority to second-guess its judgment. Bazazpour, 690 F.3d at 804.

        Defendant argues that we should nonetheless review his sentence because the district court

acted unreasonably by “ignor[ing] uncontradicted expert testimony” and “consider[ing] factors which

were neither reliable nor relevant.” In support of this argument, defendant relies on Gall v. United

States, 552 U.S. 38, 51 (2007). But Gall does not provide an exception to the limitation on our

review. See Butler, 207 F.3d at 843. The fact that the district court discredited expert testimony and

considered factors that, in defendant’s opinion, were unreliable or irrelevant, does not indicate that




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the district court lacked an awareness of, or an understanding about, its discretion to enter a departure

sentence. Accordingly, the issue is outside the scope of our review.

        Defendant next argues that the district court denied him a full and fair opportunity to respond

to evidence relied on at sentencing. Specifically, defendant complains that the district court

improperly considered the fact that he maintained his driver’s license and successfully obtained a

carry and conceal permit following his brain injury. Defendant also suggests that there is no record

evidence to support the district court’s finding that he dealt in large quantities of drugs and money

over a prolonged period of time. We disagree on both points.

        Sentencing courts are largely unrestrained in their consideration of “information concerning

the background, character, and conduct of a person convicted of an offense.” 18 U.S.C. § 3661;

Pepper v. United States, 131 S. Ct. 1229, 1240 & n.8 (2011). Nonetheless, “[t]he Fifth Amendment

requires that no person be deprived of liberty without due process of law. Federal Rule of Criminal

Procedure 32 protects the right to due process by requiring disclosure of most information relied

upon at sentencing.” United States v. Hayes, 171 F.3d 389, 392 (6th Cir. 1999) (internal citation

omitted). Accordingly, we have held that a district court commits error if it relies on extraneous,

non-record evidence in fashioning a sentence. See id. (district court erred by considering previously

undisclosed letters at the defendant’s sentencing hearing); United States v. Patrick, 988 F.2d 641,

647 (6th Cir. 1993) (district court erred by relying, without notice, on information from a

codefendant’s plea hearing to support a Guidelines enhancement).




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        In this case, however, the fact that defendant had maintained his driver’s license and

successfully obtained a carry and conceal permit is neither extraneous nor outside the record. Indeed,

the subjects were discussed in some detail at various proceedings. At his rearraignment, the district

court asked defendant in no uncertain terms, “did you have a driver’s license during that period of

time?” Defendant responded, “I had a driver’s license during that period of time, yes . . . . It wasn’t

taken away.” At the sentencing hearing held on September 5, 2012, defense counsel acknowledged,

“[t]here’s been some discussion in this case about [defendant’s] ability to drive.” The district court

also asked whether defendant had obtained a carry and conceal permit.                Defense counsel

acknowledged that defendant had successfully obtained such permit, and defendant admitted the

same. Thus, defendant had ample notice that the district court might rely on this information in

fashioning his sentence, and he could have rebutted or otherwise challenged the evidence at the

continued sentencing hearing held on September 10, 2012. We therefore conclude that no due

process violation occurred.

        Regarding whether defendant dealt in large quantities of drugs and money over a prolonged

period of time, the issue is not so much a due process argument, but a challenge to the district court’s

factual findings. A district court’s “factual findings will not be set aside unless clearly erroneous.”

United States v. Vasquez, 560 F.3d 461, 473 (6th Cir. 2009). Here, defendant admits that, between

April 2010 and September 2010, police observed him at the residences in question. When officers

executed search warrants, they discovered “approximately 157 marijuana plants and a marijuana

grow operation” at one of the residences. At the other residence, they discovered “approximately


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1 kilogram of cocaine, approximately 31 individually packaged pounds of processed marijuana in

block form, [and] 5 more marijuana plants,” as well as “numerous firearms” and “multiple cases of

ammo.” A large floor safe “contained approximately $11,700 in cash,” and officers also seized

“$215, five silver bars, nine silver coins, and a Rolex.” Thus, the undisputed record supports the

district court’s factual finding that defendant dealt in large quantities of drugs and money over a

prolonged period of time.

       Lastly, defendant argues that the district court should have granted him a downward departure

based on the conditions of his pre-sentence confinement. However, defendant never asked the

district court to consider his pre-sentence confinement as a basis for a departure sentence. Although

he mentioned the fact of his pre-sentence confinement in passing at sentencing, his motion for a

downward departure was based on U.S.S.G.§§ 5H1.3 and 5K2.13 only. Defendant’s sentencing

memorandum likewise limited the grounds for departure to these sections. The memorandum’s only

mention of his pre-sentence confinement was in response to an anticipated argument by the

government that a departure sentence would not reflect the seriousness of his offense and would not

conform to sentences imposed in other cases involving convictions of similar crimes. Further, at no

point prior to this appeal did defendant cite to any authority in the sentencing Guidelines or case law

that would support the district court’s consideration of his pre-sentence confinement as a basis for

a downward departure. Although we acknowledge that “pre-sentence confinement conditions may

in appropriate cases be a permissible basis for downward departures,” United States v. Carty, 264

F.3d 191, 196 (2d Cir. 2001) (per curiam), when a defendant fails to raise a specific mitigating factor


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at sentencing, the district court’s failure to consider the unargued factor is not an abuse of discretion,

United States v. Walls, 546 F.3d 728, 737 (6th Cir. 2008). And to the extent that defendant’s

argument is for a variance under 18 U.S.C. § 3553(a), we conclude that the district court’s sentence

was procedurally and substantively reasonable.

        For these reasons, we affirm defendant’s convictions and sentences.




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