                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0359n.06

                                           No. 09-2025
                                                                                           FILED
                          UNITED STATES COURT OF APPEALS                              May 26, 2011
                               FOR THE SIXTH CIRCUIT                            LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )   ON APPEAL FROM THE UNITED
v.                                                )   STATES DISTRICT COURT FOR THE
                                                  )   WESTERN DISTRICT OF MICHIGAN
CURTIS RASHE TURNER,                              )
                                                  )
       Defendant-Appellant.                       )                   OPINION


BEFORE:        MARTIN and STRANCH, Circuit Judges; THAPAR, District Judge.*


       JANE B. STRANCH, Circuit Judge. Defendant-Appellant Curtis Turner pleaded guilty

to possession with intent to distribute five grams or more of crack cocaine in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(B)(iii). The district court sentenced Turner to 120 months of imprisonment,

which fell at the bottom of the applicable Sentencing Guidelines range. In this appeal, Turner

contends that his sentence is both procedurally and substantively unreasonable. For the following

reasons, we AFFIRM.

                                         BACKGROUND

       The facts of this case are not in dispute and are summarized as set forth in the Presentence

Report (“PSR”). In September 2008, a confidential informant working with the Cass County,




       *
       The Honorable Amul R. Thapar, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 09-2025
United States v. Turner


Michigan Sheriff’s Office made two separate purchases of crack cocaine from Turner. The first sale,

which took place on September 15, involved the confidential informant giving Turner $20 cash for

a .19-gram rock of cocaine. The second sale occurred at Turner’s residence on September 19, and

was for a .787-gram rock of cocaine. During this second sale, Turner’s girlfriend, Rebecca Jones,

retrieved the cocaine and gave it to the confidential informant in exchange for $100.

       Law enforcement authorities subsequently obtained and executed a search warrant for

Turner’s residence. Both Turner and Jones were inside the residence at the time the warrant was

executed. During the search, officers located $1,820 in cash, a digital scale, five suspected rocks of

crack cocaine, two cellular telephones, and a tray of suspected marijuana, all on the living room

table. In the bedroom, officers found two shoe boxes, one containing 41 rocks of crack cocaine, and

the another containing 32 individual bags of crack cocaine. In the basement, officers also found a

backpack containing a loaded 9mm pistol. Turner and Jones were both arrested and transported to

the Cass County Jail.

       On February 25, Turner was indicted on six federal drug and firearm charges. In exchange

for dismissal of the other charges, Turner pleaded guilty to Count 4 of the indictment, which charged

him with possession with intent to distribute five grams or more of crack cocaine in violation of 21

U.S.C. § 841(a)(1), (b)(1)(B)(iii). The PSR held Turner responsible for a total of 25.021 grams of

crack cocaine, which included the quantities involved in the undercover purchases and seized from

the residence, and also quantities sold to an unnamed police source housed at the Cass County Jail.

It calculated a total offense level of 27 and a criminal history category of V, which yielded an


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United States v. Turner


advisory Sentencing Guideline range of 120 to 150 months of imprisonment.                  The PSR

recommended a sentence at the very top of this range, 150 months of imprisonment, along with five

years of supervised release.

       The district court conducted a sentencing hearing on August 5, 2009. Turner requested that

the district court vary from the applicable Guidelines range, primarily arguing that the Sentencing

Guidelines’ harsher treatment of crack cocaine offenses was not justified and the court instead should

apply “a guideline sentencing calculation that does not reflect any disparity between the crack and

powder cocaine sentencing schemes.” R38 at 6. In support, Turner cited congressional testimony

by Assistant Attorney General Lanny Breuer announcing the Obama Administration’s position that

the sentencing disparity should be eliminated.

       The district court sentenced Turner to 120 months of imprisonment, at the bottom of the

applicable crack-cocaine Guideline range. In doing so, the court recognized that the Supreme Court

has given district courts authority on their own to vary from the guidelines. The court, however,

chose not to exercise that discretion. Turner filed a timely notice of appeal on August 10, 2009.

                                            ANALYSIS

I.     STANDARD OF REVIEW

       On appeal, Turner challenges the reasonableness of his sentence. Generally, this Court

considers such challenges under an abuse-of-discretion standard.1 United States v. Barahona-


       1
        Appellee argues that Turner’s procedural arguments should be reviewed only for plain error
because he failed to object to the procedural propriety of the district court’s sentence when invited
to do so at the conclusion of sentencing. See United States v. Vonner, 516 F.3d 382, 385–86 (6th

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United States v. Turner


Montenegro, 565 F.3d 980, 983 (6th Cir. 2009). “Reasonableness review has both a procedural and

a substantive component.” United States v. Wettstain, 618 F.3d 577, 591 (6th Cir. 2010). The Court

“must first 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.” Gall v. United States, 552 U.S. 38, 51 (2007).

       If the Court concludes that the sentence is procedurally sound, the Court “then consider[s]

the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id.

“The essence of a substantive-reasonableness claim is whether the length of the sentence is ‘greater

than necessary’ to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).” United States v.

Tristan-Madrigal, 601 F.3d 629, 632–33 (6th Cir. 2010) (quoting 18 U.S.C. § 3553(a)).

II.    PROCEDURAL REASONABLENESS

       A.      Reliance on Crack-Cocaine Sentencing Guideline

       Turner first argues that his sentence is procedurally unreasonable because “it is based on the

crack-cocaine sentencing guideline.” Appellant’s Br. at 10. Citing Assistant Attorney General

Lanny Breuer’s testimony and the recently enacted Fair Sentencing Act,2 Turner argues that the


Cir. 2008) (en banc); United States v. Bostic, 371 F.3d 865, 872–73 (6th Cir. 2004). We need not
consider whether plain-error review applies in the present case because Turner’s claims fail to satisfy
the more lenient abuse-of-discretion standard typically applicable to reasonableness challenges.
       2
        Among other things, the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372,
reduced the crack-to-powder ratio in mandatory minimum sentences to approximately 18-to-1. A
panel of this Court has held that the Act does not apply retroactively. United States v. Carradine,

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No. 09-2025
United States v. Turner


crack-cocaine Guideline is “flawed and unreliable,” Appellant’s Br. at 10, and “does not serve the

purposes of 18 U.S.C. § 3553(a),” id. at 8. Instead, he contends that his sentence should correspond

with the powder-cocaine Guideline, which would advise a significantly shorter sentence.

       The Supreme Court addressed a district court’s authority to vary from the crack-cocaine

Sentencing Guidelines in two recent cases. In Kimbrough v. United States, 552 U.S. 85 (2007), the

Court held that “the cocaine Guidelines, like all other Guidelines, are advisory only.” Id. at 91. In

making the determination whether “a within-Guidelines sentence is ‘greater than necessary’ to serve

the objectives of sentencing” under section 3553(a), the Court held that a district court “may consider

the disparity between the Guidelines’ treatment of crack and powder cocaine offenses.” Id.

Subsequently, in Spears v. United States, 555 U.S. 261, 129 S. Ct. 840 (2009) (per curiam), the

Supreme Court clarified that a district court has the “authority to vary from the crack cocaine

Guidelines based on policy disagreement with them, and not simply based on an individualized

determination that they yield an excessive sentence in a particular case.” Id. at 843. Accordingly,

under Kimbrough and Spears, “district courts are entitled to vary from the crack-cocaine guidelines

[even] in a mine-run case where there are no ‘particular circumstances’ that would otherwise justify

a variance from the Guidelines’ sentencing range.” Id. at 843–44.

       This is not to say, however, that a district court necessarily errs when sentencing a defendant

within the applicable crack-cocaine Guideline range. While Kimbrough and Spears establish that

a sentencing court may vary from the crack-powder ratio set forth in the Guidelines, “applying the


621 F.3d 575, 580 (6th Cir. 2010).

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No. 09-2025
United States v. Turner


ratio does not, ipso facto, make a sentence unreasonable under existing case law.” United States v.

Caver, 470 F.3d 220, 249 (6th Cir. 2006); accord United States v. Simmons, 587 F.3d 348, 366 (6th

Cir. 2009) (“[W]e have repeatedly held the disparate treatment of crack and powder cocaine advised

by the Guidelines is not per se unreasonable or unconstitutional.”). Accordingly, the district court’s

sentence is not inherently unreasonable merely because it falls within the Guideline range applicable

to crack-cocaine offenses.

       B.      Authority to Vary From Crack-Cocaine Sentencing Guideline

       Turner also argues that his sentence is procedurally unreasonable because the district court

did not fully comprehend its discretion to vary from the crack-cocaine Guideline range as recognized

by the Supreme Court in Kimbrough and Spears. Although resentencing is appropriate where a

sentencing court erroneously believed that it lacked authority to vary from the crack-to-powder ratio

set forth in the Guidelines on policy grounds, see, e.g., United States v. Johnson, 553 F.3d 990,

995–96 (6th Cir. 2009), the sentencing transcript in the present case demonstrates that the district

court understood its discretion to vary. The court expressly noted that the Supreme Court has “given

the district courts authority on their own to vary from the guidelines and . . . use some other ratio.”

R49 at 17–18. The court, however, chose “not to exercise that discretion in this case . . . for a

number of reasons.” R49 at 18.

       First, the court explained it would not vary from the applicable crack-cocaine Guideline range

because it was based on “positive law, law that Congress enacted” and Congress had “multiple

opportunities to change” the crack-cocaine ratio and it had not yet done so. R49 at 18. Second, in


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No. 09-2025
United States v. Turner


response to Turner’s argument that a variance was compelled by the Obama Administration’s

position on the issue, the court stated its belief that it would be “an inappropriate basis for the Court

to exercise its discretion based on what [the executive] branch of the federal government is

advocating at the time.” R49 at 19. The court continued:

        Now, that said, there could be other reasons why the Court can exercise its discretion
        in a case to vary, and certainly Gall, Kimbrough, and others have recognized that.
        But in this case I’m not willing to do it because I don’t believe I have a record on
        which to make a meaningful determination.

        Plus, it seems to me, that although crack cocaine is certainly the offense of
        conviction, and I understand that, the sentence of the Court is driven by other things
        as well here, including the long history that Mr. Turner has had with trouble on law
        enforcement and the need for some kind of attention-getting sentence that’s more
        significant than what he’s had before to reinforce what I hope will be a growing
        desire to move in the direction of law-abiding conduct. So for those reasons the
        Court is not willing to exercise its own discretion to vary from the guidelines as they
        were calculated.

R49 at 19 (emphasis added).

        As this Court recently explained in United States v. Johnson, 407 F. App’x 8 (6th Cir. 2010),

“[w]hile district judges have wide discretion in fixing a crack-to-powder ratio, they are not free to

cede their discretion by concluding that their courtrooms are the wrong forum for setting a crack-to-

powder ratio.” Id. at 11. Unlike the district court in Johnson, however, the lower court here did not

rely exclusively on such impermissible grounds in rejecting the defendant’s policy argument. The

sentencing transcript demonstrates that the district court understood the scope of its discretion to vary

on policy grounds and calculate its own crack-to-powder ratio, but was “not willing to do it” in the

present case because it did not “have a record on which to make a meaningful determination.” R49


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No. 09-2025
United States v. Turner


at 19. That the district court felt that it would be “inappropriate” to vary from the crack-cocaine

Guidelines based solely on the Obama Administration’s position does not establish a procedural

error under these circumstances. We conclude the district court’s sentence was procedurally

reasonable.



III.    SUBSTANTIVE REASONABLENESS

        Turner also challenges the substantive reasonableness of the district court’s sentence. “In

selecting a sentence, the [district] court must consider the factors set forth in section 3553(a) and

arrive at a sentence ‘sufficient, but not greater than necessary, to comply with’ those factors.” United

States v. Gunter, 620 F.3d 642, 647 (6th Cir. 2010) (quoting 18 U.S.C. § 3553(a)). Substantive

errors may occur “where the district court selects the sentence arbitrarily, bases the sentence on

impermissible factors, fails to consider pertinent § 3553(a) factors or gives an unreasonable amount

of weight to any pertinent factor.” United States v. Moon, 513 F.3d 527, 543 (6th Cir. 2008)

(internal quotation marks and alterations omitted). A rebuttable presumption of substantive

reasonableness is afforded a properly calculated, within-Guidelines sentence. United States v.

Polihonki, 543 F.3d 318, 322 (6th Cir. 2008). “Although this presumption is rebuttable, we cannot

reverse a sentence simply because we determine that a different sentence would be appropriate.”

United States v. Higgins, 557 F.3d 381, 398 (6th Cir. 2009).

        Turner challenges the substantive reasonableness of the district court’s bottom-of-the-

Guideline sentence because he asserts that “[a] 120–month sentence is longer than necessary to


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No. 09-2025
United States v. Turner


satisfy the § 3553(a) factors in [this] case.” Appellant’s Br. at 8. According to Turner, the district

court “gave too much weight to the crack-cocaine guideline” and too little consideration to “the

history and characteristics of Mr. Turner.” Id. Specifically, he argues that the district court should

have considered more fully several mitigating factors, including the crack-cocaine disparity under

the Guidelines, his young age (27), and his “relatively petty” criminal history. Id. at 15.

       Turner’s arguments are insufficient to rebut the presumption of reasonableness afforded the

district court’s sentence. The sentencing transcript reveals that the district court engaged in a

thoughtful analysis of the relevant section 3553(a) factors without giving disproportionate weight

to any one of them. The district court first determined that the applicable Guidelines range was 120

to 150 months, as the parties conceded at the sentencing hearing. It then recognized, however, that

“[t]he overall purpose of sentencing . . . is to impose a sentence under [section] 3553 of Title 18

that’s sufficient but not greater than necessary to comply with the purposes of the statute.” R49 at

11–12. The court noted that its consideration of these sentencing factors led it to conclude that a

sentence of 120 months, at the bottom of the applicable Guideline range, was appropriate.

       In reaching this sentence, the court found “significant” Turner’s “long-term problem with

criminal justice, both in his juvenile years and in his adult years.” R49 at 13. The court noted that

it felt compelled to impose a “jarring,” R49 at 16, “attention-getting sentence that’s more significant

than what [Turner’s] had before to reinforce what [the court hoped would] be a growing desire to

move in the direction of law-abiding conduct,” R49 at 19.




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No. 09-2025
United States v. Turner


        The court also considered several mitigating factors that cut in favor of a lower sentence.

First, Turner was in state custody for five months following his arrest, for which he may not get

credit under the federal system. Second, Turner was a “relatively young man” and it was “too early,

in the Court’s view, to give up and say . . . there are all these bad predictors of recidivism, so I’m

going to go to the high end of the range because he’s not going to make it.” R49 at 13. Third, the

court noted that Turner had demonstrated “a determination and a grit,” suggesting that he may be

able “to use this obstacle as a stepping stone.” R49 at 14. Finally, the court recognized that,

“although some of [Turner’s criminal history] certainly involves drugs and serious offenses, there

is a lot of low-level offenses comparatively.” R49 at 15. According to the court, this was “another

reason that [the sentence was] at the low end of the federal guidelines.” R49 at 15.

        There is no indication in the record that the district court’s sentence was arbitrary,

incomplete, or based on impermissible factors. Moreover, the district court expressly considered the

factors emphasized by Turner on appeal—i.e., his young age and the nature of his previous criminal

offenses. Although Turner argues that the court should have weighed these factors differently, there

is no reason to conclude that the district court abused its discretion. Cf., e.g., United States v. Young,

553 F.3d 1035, 1055–56 (6th Cir. 2009) (holding that district court did not abuse its discretion in

imposing within-Guidelines sentence where the court specifically considered mitigating evidence

and “enumerated the specific evidence and the § 3553(a) factors that led it to believe that the

sentences it imposed were appropriate”). Accordingly, we conclude that Turner’s sentence is not

substantively unreasonable.


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No. 09-2025
United States v. Turner


                                         CONCLUSION

         For the aforementioned reasons, we AFFIRM the sentence imposed on Turner by the district

court.




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