               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0755n.06

                                          No. 13-6440
                                                                                     FILED
                         UNITED STATES COURT OF APPEALS                           Oct 01, 2014
                              FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee,                            )
                                                      )   ON APPEAL FROM THE UNITED
v.                                                    )   STATES DISTRICT COURT FOR
                                                      )   THE EASTERN DISTRICT OF
FREDERICK M. HARRIS,                                  )   KENTUCKY
                                                      )
       Defendant-Appellant.                           )


       BEFORE: BATCHELDER, GILMAN, and GIBBONS, Circuit Judges.


       PER CURIAM. Frederick M. Harris, a federal prisoner, appeals through counsel the

200-month sentence imposed following his guilty plea to a charge of conspiracy to distribute

controlled substances.

       A presentence report was prepared in this case, which indicated that Harris was a career

offender, based on at least two previous controlled-substance offenses. Harris was in the highest

possible criminal history category regardless of his career offender status, based on a list of

convictions fifteen pages long. The guidelines range was calculated at 188 to 235 months of

imprisonment. Harris filed a sentencing memorandum in which he argued that a sentence within

the range would be excessive. He cited a Sentencing Commission report to the effect that the

recidivism rate for career offenders with only prior drug offenses, as opposed to crimes of

violence, is only 27 percent. He asked for a sentence of 74 months, calculated without the career

offender offense level, and argued that his co-defendants received sentences of 65 months or
No. 13-6440
United States v. Harris

less. At the sentencing hearing, the district court noted that comparison with the sentences

received by co-defendants was not necessary, but that comparison should be made with others

convicted of this offense nationwide. The court noted that the average sentence in 2011 was 172

months, and the average guidelines minimum was 225 months. The court also responded to the

argument about recidivism, citing a Bureau of Justice statistic showing that someone with a

record comparable to Harris’s had an 82 percent chance of recidivism. The district court found

no basis for a downward variance. The district court contrasted this situation with one in which

the court granted a downward variance to 120 months for a career offender who had only two

prior controlled-substance convictions and no others. After Harris allocuted and the government

moved for consideration of his cooperation in a state case, the district court determined to

sentence Harris to 35 months less than the maximum guidelines sentence it had originally

considered.

       In his brief before this court, Harris argues that his sentence is substantively unreasonable

because the district court assumed that he would reoffend and failed to consider the sentencing

factors. He also argues that his sentence is procedurally unreasonable because the district court

did not give notice of its intent to rely on the statistics it cited and did not respond to his

argument for leniency.

       We review the substantive reasonableness of a sentence under an abuse-of-discretion

standard. United States v. Herrera-Zuniga, 571 F.3d 568, 581 (6th Cir. 2009). No abuse of

discretion is apparent in the alleged assumption by the district court that Harris would reoffend,

given his criminal record to date. The record demonstrates that far from failing to discuss the

sentencing factors, the court addressed the sentencing factors comprehensively.          A lengthy

explanation of the relevance of the sentencing factors is not required where the sentence is within


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No. 13-6440
United States v. Harris

the guidelines range, and such a sentence is entitled to a presumption of reasonableness. United

States v. Lapsins, 570 F.3d 758, 774 (6th Cir. 2009).

       We review the procedural reasonableness of a sentence for plain error where the

defendant did not raise his objections below. See United States v. Bostic, 371 F.3d 865, 872-73

(6th Cir. 2004). Nor did the district court plainly err in relying on statistics for the average

nationwide sentence for this offense in response to the argument in the sentencing memorandum

that the sentence should be compared to those of the co-defendants. The district court correctly

noted that the appropriate comparison was not with the sentences of co-defendants but with the

sentences of nationwide defendants with similar criminal histories. United States v. Mitchell,

681 F.3d 867, 883 (6th Cir. 2012); United States v. Presley, 547 F.3d 625, 631 (6th Cir. 2008).

The citation to recidivism statistics was also in response to the reliance by Harris on such

statistics in his sentencing memorandum. The cases cited by Harris, such as United States v.

Hayes, 171 F.3d 389 (6th Cir. 1999), are inapposite because they involved situations where the

sentencing judge was given information that was unavailable to the defendant, and not publicly

available statistics such as those Harris himself relied on in his memorandum. Nor does the

record support the claim that the district court failed to respond to the argument for leniency. In

fact, the transcript shows that the district court expressly addressed the arguments raised in the

sentencing memorandum and considered the allocution by Harris in deciding to sentence him at

200 months rather than the 235-month maximum of the guidelines range the court was originally

considering.

       Finding no abuse of discretion or plain error in the sentencing proceeding, and

concluding that a different sentence was not required in this case, see United States v. Brown,

579 F.3d 672, 687 (6th Cir. 2009), we affirm the district court’s judgment.


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