                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0147n.06
                           Filed: February 22, 2007

                                           No. 05-3728

                          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
DAMON M. THOMPSON,                               )    SOUTHERN DISTRICT OF OHIO
                                                 )
       Defendant-Appellant.                      )




       Before: SILER, MOORE, and ROGERS, Circuit Judges.


       ROGERS, Circuit Judge. Damon M. Thompson appeals the 192-month sentence he

received following his guilty plea to the charges of conspiracy to distribute over five kilograms of

cocaine and using a firearm in relation to drug trafficking. Thompson argues that this sentence is

unreasonable because it is unwarrantedly disparate from the sentence of fifty-five months his co-

conspirator, Ali Jefferson, received for the same conspiracy charge. Because Thompson’s sentence

was within the applicable Guidelines range, his sentence is presumptively reasonable. Additionally,

the disparity between the sentence Thompson received and the sentence Jefferson received is not




                                                 1
No. 05-3728
USA v. Thompson

unreasonable in light of the additional charge against Thompson and Thompson’s more extensive

criminal history. The sentence imposed by the district court is, therefore, affirmed.


                                                I.


       The charges against Thompson arise from his attempt to purchase cocaine from a distributer

in Arizona in order to resell the cocaine in Ohio. In March of 2004, Thompson contacted an

individual in Tucson whom Thompson believed to be a cocaine distributer. That individual was, in

fact, an undercover DEA agent. Thompson traveled to Tucson twice to negotiate the purchase of

fifty kilograms of cocaine, which was to be delivered to him in Columbus. On April 20, two

undercover agents from Tucson met with Thompson in Columbus to finalize plans for the delivery

of the cocaine. Ali Jefferson, whose involvement in the purchase was previously unknown to the

agents, joined Thompson at this meeting. During that meeting it was determined that Jefferson’s

Lexus SUV would be given to the undercover agents as part of the down payment for the cocaine.

The agents took the SUV that evening and arranged for Thompson and Jefferson to meet them at a

hotel in Columbus the next day. When Thompson and Jefferson arrived at the hotel, Jefferson

remained in the lobby while Thompson went upstairs to meet one of the undercover agents. While

Thompson met with the agent to complete the transaction, Jefferson was led to a disabled vehicle

that supposedly contained the cocaine. Thompson was arrested as he counted out the purchase

money. At the time of his arrest, Thompson had a loaded Glock 45-caliber pistol on his person.

Jefferson, who was not armed, was arrested as he attempted to enter the disabled vehicle.



                                               -2-
No. 05-3728
USA v. Thompson

       In June 2004, Jefferson waived indictment and, pursuant to a plea agreement, pled guilty to

one count of conspiracy to distribute over five kilograms of cocaine in violation of 21 U.S.C. § 846

and two criminal forfeiture counts. In February 2005, United States District Judge Gregory L. Frost

sentenced Jefferson to fifty-five months incarceration.


       Thompson was indicted by the Grand Jury on August 12, 2004. On December 17, 2004,

pursuant to a plea agreement, Thompson pled guilty to one count of conspiracy to possess with intent

to distribute over five kilograms of cocaine under 21 U.S.C. § 846, one count of possession of a

firearm in furtherance of a drug trafficking offense under 18 U.S.C. § 924(c)(1)(A), one count of

forfeiture under 21 U.S.C. § 853(a)(2), and one count of forfeiture of a firearm under 18 U.S.C. §

924(d)(1). On May 11, 2005, the Government filed a motion for downward departure for substantial

assistance on behalf of Thompson. The presentence investigation report (PSIR) determined that

Thompson had an adjusted offense level of thirty-three and a criminal history of IV as to Count One,

the conspiracy to distribute charge, resulting in a Guidelines range of 188-235 months. Count Two,

possession of a firearm in furtherance of a drug trafficking offense, required a mandatory consecutive

term of not less than sixty months.


       On May 12, 2005, the district court held a sentencing hearing for Thompson during which

the court considered a number of requests for downward departure under the Guidelines. First,

Judge James L. Graham considered Thompson’s argument that Jefferson’s fifty-five month sentence

and the sentences imposed in two other cases involving similar charges justified a downward

departure to avoid unwarranted disparity. In rejecting Thompson’s disparity argument, the district

                                                -3-
No. 05-3728
USA v. Thompson

court referred to “the fact that Mr. Thompson’s criminal history is much more extensive than his

codefendant in this case.” Second, the court rejected Thompson’s requests for departures because

of the harshness of Thompson’s presentence confinement and physical impairment, Thompson’s

family background, and his allegation of third-party coercion. Third, the court granted a downward

departure because the price of the cocaine involved in this transaction was below market and granted

the Government’s motion for downward departure, resulting in a final total offense level of twenty-

nine.


        Having determined the applicable Guidelines range, the district court then heard general

arguments on the appropriate sentence. In this non-Guidelines context, Thompson again asked the

court to consider the avoidance of sentencing disparity and the other issues that he had raised as

grounds for departure under the Guidelines. In arriving at Thompson’s sentence, the district court

observed that “previous sentences have not afforded adequate deterrence for this defendant” and

found that Thompson “represented a substantial risk for recidivism.” The court imposed a sentence

of 132 months for Count One, which was within the applicable Guidelines range of 121-151 months.

The court also imposed a consecutive sentence of sixty months for Count Two. Thompson now

brings this timely appeal, in which he argues that the district court erred in not giving him a sentence

that was in relative parity with the sentence Jefferson received.


                                                  II.




                                                 -4-
No. 05-3728
USA v. Thompson

       Thompson’s sentence is not unreasonable because the district court properly considered the

alleged disparity between his sentence and his co-defendant’s sentence in the context of a possible

Guidelines departure and again when weighing the factors in 18 U.S.C. § 3553(a). “The sentence

imposed by the district court is reviewed for reasonableness and must be affirmed if it is reasonable.

A sentence falling within the relevant Guidelines range is entitled to a rebuttable presumption of

reasonableness.” United States v. Carson, 469 F.3d 528, 530-531 (6th Cir. 2006) (citing United

States v. Williams, 436 F.3d 706, 707-08 (6th Cir. 2006)). This court reviews sentences for both

procedural reasonableness and substantive reasonableness. United States v. Collington, 461 F.3d

805, 808 (6th Cir. 2006).


       The sentence imposed by the district court is procedurally reasonable because the district

court properly calculated the applicable Guidelines range and, recognizing the non-mandatory nature

of the Guidelines, considered the other factors listed in 18 U.S.C. § 3553(a). See United States v.

Webb, 403 F.3d 373, 383 (6th Cir. 2005). While the primary thrust of Thompson’s argument on

appeal involves the substantive reasonableness of the disparity between the sentence that he received

and the sentence his co-conspirator received, Thompson also argues that the district court failed to

consider whether a lower sentence was sufficient to satisfy the sentencing goals in 18 U.S.C. §

3553(a). Contrary to Thompson’s assertion, the district court expressly considered “the kinds of

sentences that are afforded in this case,” including the possibility of a lower sentence, but found that

the circumstances of this case did not justify a lower sentence. Therefore, while consideration of the




                                                 -5-
No. 05-3728
USA v. Thompson

§ 3553(a) factors “need not be evidenced explicitly,” the record here clearly reflects that the district

court considered Thompson’s arguments for a lower sentence. Williams, 436 F.3d at 708.


       Thompson’s sentence is also substantively reasonable because the disparity between

Thompson’s sentence and the sentence imposed on his co-conspirator is not unreasonable in light

of the dissimilarities between the two defendants. Thompson’s relies on 18 U.S.C. § 3553(a)(6),

which provides that one of the factors that a court must consider when imposing a sentence is “the

need to avoid unwarranted sentence disparities among defendants with similar records who have

been found guilty of similar conduct.” However, in a case reversing a below-Guidelines departure

prior to Booker, this court reasoned that “[t]he objective of this statute is not to eliminate sentence

disparities between defendants of the same case who have different criminal records; rather, the

objective is to eliminate unwarranted disparities nationwide.” United States v. LaSalle, 948 F.2d

215, 218 (6th Cir. 1991) (internal quotation marks and citation omitted). This court in LaSalle

observed that “to reduce a defendant’s sentence because of a perceived disparity between the

sentences of one defendant and that of his co-defendant in the same case creates a new and

unwarranted disparity between that first defendant’s sentence and the sentences of all the defendants

nationwide who are similarly situated.” Id. See also United States v. Epley, 52 F.3d 571, 584 (6th

Cir.1995) (relying on LaSalle and holding that a downward departure could not be supported solely

by a disparity between the defendant’s sentence and the sentences of unindicted co-conspirators).

While these cases were decided in the context of unwarranted departures prior to Booker, the fact




                                                 -6-
No. 05-3728
USA v. Thompson

that they purported to interpret 18 U.S.C. § 3553 makes them of some relevance to the question of

reasonableness in the post-Booker advisory Guidelines context.


          However, even if disparity between co-defendants could result in an unreasonable sentence

after Booker in some cases, that would not be the case here because Thompson and Jefferson do not

have similar records. There are two significant differences between Thompson and his co-

conspirator that explain the disparity between their sentences. First, Jefferson was not armed during

the drug purchase from which the charges in this case arise. Therefore, only Thompson was charged

with possession of a firearm in furtherance of a drug trafficking offense,1 which charge resulted in

a mandatory consecutive sentence of “not less than 5 years.” 18 U.S.C. § 924(c)(1)(A)(i). This

additional charge accounts for nearly half of the difference between Thompson’s sentence and

Jefferson’s sentence.


          A second difference between Thompson and Jefferson, which was recognized by the district

court, is that “Thompson’s criminal history is much more extensive than his codefendant in this

case.”2       It was not unreasonable for the district court to conclude that Thompson’s extensive


          1
         Thompson relies on United States v. Morrow, 977 F.2d 222 (6th Cir. 1992), to argue that
Jefferson was “equally culpable for the use of a firearm” and the additional sixty-month sentence for
Thompson was therefore unwarranted. However, in Morrow this court merely upheld the conviction
of an individual charged with aiding and abetting the use of a firearm in furtherance of a trafficking
offense. Id. at 230-31. Morrow did not deal with relative punishment levels for aiders versus
principals.
          2
         While Jefferson’s criminal history is not part of the record in this case, Thompson concedes
the existence of a disparity between his criminal history and Jefferson’s. Accordingly, Thompson’s
reliance on United States v. Tzoc-Sierra, 387 F.3d 978 (9th Cir. 2004) is misplaced. In Tzoc-Sierra,

                                                 -7-
No. 05-3728
USA v. Thompson

criminal history justified the additional seventy-seven months separating his sentence from

Jefferson’s sentence.


       Because the additional charge against Thompson and Thompson’s extensive criminal history

justified the larger sentence Thompson received, no unwarranted disparity resulted from the district

court’s imposition of a sentence within the relevant Guidelines range. Thompson has, therefore,

provided this court with no reason to hold that the sentence imposed by the district court was

unreasonable.


                                                III.


       For the foregoing reasons, the sentence imposed by the district court is AFFIRMED.




the Ninth Circuit held that a downward departure was justified by the disparity between the sentence
imposed on the defendant-appellee and the sentences imposed on his co-defendants in the same case.
However, the court explicitly noted that the defendant-appellee in that case had “no criminal
history.” Id. at 981. The Ninth Circuit did not hold that disparate sentences for co-defendants with
different criminal histories and facing different charges would warrant a departure. Id.

                                               -8-
No. 05-3728
USA v. Thompson

       KAREN NELSON MOORE, Circuit Judge, concurring. Because Thompson had a more

extensive criminal history than his co-conspirator Jefferson, it is unnecessary to determine the effect,

if any, of our pre-Booker precedent cited in the majority opinion regarding the requirement in 18

U.S.C. § 3553(a)(6) that courts must consider in sentencing “the need to avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of similar conduct.”

As Thompson and Jefferson do not have “similar records,” there are no “unwarranted sentence

disparities” presented by Thompson that would trigger § 3553(a)(6). In my view, § 3553(a)(6) may

require comparison of sentences of co-participants in particular crimes “to avoid unwarranted

sentence disparities,” but we need not, and do not, reach that issue today because of the differences

between Thompson and Jefferson. With that understanding, I concur.




                                                 -9-
