                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0071n.06
                           Filed: January 23, 2008

                                           No. 07-5270

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
FLOYD HARRIS,                                     )    WESTERN DISTRICT OF TENNESSEE
                                                  )
       Defendant-Appellant.                       )


Before: RYAN and DAUGHTREY, Circuit Judges; and COHN, District Judge.*


AVERN COHN, District Judge. This is a criminal case. Defendant-Appellant Floyd Harris

(“Harris”) appeals his sentence of 188 months imposed following a guilty plea. Harris raises one

issue on appeal—whether the district court recognized that it had the authority to depart

downward in light of defendant’s argument that the application of the career offender

classification overstated his criminal history. For the reasons that follow, we affirm.


                                                  I.


       On November 27, 2006, Harris pled guilty to possession of more than five grams of

cocaine, in violation of 21 U.S.C. § 841(a)(1).



*
The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan,
sitting by designation.
       After the plea, a presentence investigation report (“PSR”) was prepared using the 2006

edition of the Federal Sentencing Guideline Manual. Because the total drug weight attributable

to Harris was 22.1 grams of cocaine base, Harris had a base offense level of 28 in accordance

with U.S.S.G. § 2D1.1(c)(6). The adjusted offense level remained at 28 because Harris had no

enhancements. However, the PSR found that under U.S.S.G. § 4B1.1 Harris qualified as a career

offender. As a result, his offense level was raised to 34. Harris received a three level reduction

for acceptance of responsibility. This yielded a total offense level of 31. Under U.S.S.G. §

4B1.1(b), career offenders have a criminal history category of VI. The guideline range for a total

offense level of 31 and a criminal history of category VI is 188 to 235 months.


       On February 22, 2007, Harris filed a Position Paper, requesting a downward departure on

the grounds that application of the career offender status overstated his prior criminal history.


       At sentencing, on February 26, 2007, Harris again argued that he should be sentenced

below the guidelines range because his prior convictions, which resulted in the career offender

classification, involved relatively minor amounts of drugs for which he received a term of four

years that was suspended except six months in the county jail. Harris noted that without the

career offender classification, his total offense level would be 25 with a criminal category of IV.

This would result in a guideline range of 84 to 105 months. Harris argued for a sentence at the

lower end of that range.


       The district court stated that the guidelines range in the PSR, which included the career

offender classification, was correct. After examining the factors under 18 U.S.C. § 3553(a), the



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district court imposed a sentence of 188 months. The district court did not explicitly rule on

Harris’s request for a downward departure or the authority to grant such departure.


                                                  II.


       Harris first argues that the district court failed to state on the record that it recognized its

authority to depart downward. This argument lacks merit. Our precedents make clear that a

district court is not required to state whether it has the authority to depart downward. See United

States v. Byrd, 53 F. 3d 144, 145 (6th Cir. 1995) (stating “there is no duty on sentencing judge to

state affirmatively that he knows he possesses power to make downward departure.”); United

States v. Prince, 214 F.3d 740, 767 (6th Cir. 2000) (same); United States v. Lucas, 357 F.3d 599,

609-10 (6th Cir. 2002) (same).


       Harris also says that he is entitled to a resentencing, citing United States v. Thomas, 49 F.

3d 253, 260 (6th Cir. 1995). In Thomas, a panel of this Court found that the record contained

some ambiguity on the language whether the district judge was aware of his discretion to

downwardly depart. Similarly, in United States v. Smith, 278 F. 3d 605, 611 (6th Cir. 2002), a

panel of this Court remanded the case to the district court to clarify whether the judge knew that

he had the discretion to grant the defendant a downward departure.


       Harris’s reliance on Thomas and Smith is misplaced. The fact that the district court did

not specifically state on the record that it recognized its authority to depart downward does not

create an ambiguity. To the contrary, the district court clearly understood that Harris’s guidelines

were one of several sentencing factors under § 3553(a). The district court also found that


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Harris’s guidelines, including the career offender classification, were properly calculated. The

district court discussed each of the § 3553(a) factors and rendered a sentence it found

appropriate. We find nothing in the district court’s statements, even in light of the Supreme

Court’s recent decisions in Kimbrough v. United States, __ U.S. __, 128 S.Ct. 558 (2007) and

Gall v. United States, __ U.S. __, 128 S.Ct. 586 (2007), which alters our conclusion that the

district court understood and fulfilled its sentencing obligation.


                                                 III.


       For the reasons stated above, Harris’s sentence is AFFIRMED.




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