                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a1036n.06

                                            No. 13-3137
                                                                                          FILED
                           UNITED STATES COURT OF APPEALS                           Dec 18, 2013
                                FOR THE SIXTH CIRCUIT                           DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
KEVIN DENNIS,                                     )    SOUTHERN DISTRICT OF OHIO
                                                  )
       Defendant-Appellant.                       )                   OPINION
                                                  )


       Before: MCKEAGUE and STRANCH, Circuit Judges; COLLIER, District Judge.*

       JANE B. STRANCH, Circuit Judge. Kevin Dennis appeals his conviction based on a guilty

plea. Specifically, he alleges that the district court committed several violations of Federal Rule of

Criminal Procedure 11 that amount to plain error and deprived him of a knowing and voluntary plea.

Dennis also appeals the procedural reasonableness of his sentence. We AFFIRM Dennis’s

conviction for the reasons below, but REMAND for resentencing in light of intervening precedent.

                      I. FACTS AND PROCEDURAL BACKGROUND

       In 2006, Kevin Dennis entered into an agreement to plead guilty to four counts of a ten-count

indictment. The four counts were Count 2 for health care fraud, Count 4 for money laundering,

Count 7 for manufacturing cocaine base (or crack), and Count 9 for possession of firearms in


       *
       The Honorable Curtis L. Collier, United States District Judge for the Eastern District of
Tennessee, sitting by designation.

                                                 -1-
furtherance of a drug trafficking crime. Two counts to which Dennis did not plead guilty play a role

here: Count 8 for possession with intent to distribute, and Count 10 for possession of a firearm by

an unlawful drug user.

       At Dennis’s plea hearing, the excluded Count 8 resurfaced. As to Count 7, the court asked

Dennis how he pleaded to “Count 7 . . . possession with intent to distribute,” which of course was

not the offense in Count 7. But when explaining the elements of the offense, the court accurately

listed the three elements for the offense in Count 7, manufacturing cocaine base: “manufactur[ing]

in excess of five grams of a mixture containing a detectable amount of cocaine base, . . . [doing] so

knowingly and intentionally” and doing so within the Southern District of Ohio. See 21 U.S.C. §

841. As to Count 9, the court accurately named the offense, but then described the elements as

follows:

       First, that you committed the drug trafficking offense alleged in Count 7 which we
       have just reviewed, that is manufacturing a substance containing a detectable amount
       of cocaine base; second that you knowingly possessed a firearm; third, that the
       possession was in furtherance of the drug trafficking crime; and fourth, that these
       acts occurred in whole or in part within the Southern District of Ohio.

See 18 U.S.C. § 924(c)(1)(A). The indicted offense for Count 9 actually stated that Dennis

possessed the firearm “in furtherance of a drug trafficking crime . . . that is, manufacturing and

possession with intent to distribute,” so it referred to the offenses in both Count 7 and Count 8.

       The other relevant portion of the plea hearing contains the factual basis the Government

provided to support the guilty plea. A special agent testified that the Government executed a search

warrant at Dennis’s house after investigating him for healthcare fraud and found:

       Dennis and an acquaintance were present at the execution of the warrant where
       Dennis possessed a loaded Browning HiPower 9 millimeter semiautomatic pistol.
       Also located between the box springs and a side rail of the bed where Dennis was
       sleeping was a loaded Smith & Wesson model 19 357 revolver.

                                                -2-
               Dennis was escorted out of the residence where he waived his rights and
       agreed to speak with officers. Dennis told Detective Aaron Byrd of the Columbus
       division of police that there was a fist size ball of crack cocaine inside the house.
       Dennis continued saying that he buys approximately five ounces of powder cocaine
       and rocks it up himself every couple of months. In the basement bathroom cabinet
       were two large glass containers with a white mixing bowl containing cocaine residue
       where the powder cocaine was manufactured to cocaine base.

               Over 100 grams of cocaine base were recovered from the residence with the
       bulk of 87.8 grams recovered from inside a gun safe in the basement of the residence.

At the plea hearing, Dennis admitted to these facts and pleaded guilty to Count 7 and Count 9 as

well as the other two counts.

       Dennis was sentenced on February 1, 2007. Dennis asked to be sentenced to the 120-month

statutory minimum associated with Counts 7 and 9, arguing that he was entitled to be sentenced

below the 157 to 180 month Guidelines range because of the disparity created by the 100:1 powder-

cocaine to crack-cocaine sentencing ratio. Without mentioning the powder-to-crack cocaine

disparity specifically, the court said that “there was not much to consider” regarding the drug

offenses, and, after considering the remaining sentencing factors under 18 U.S.C. § 3553(a),

sentenced Dennis to 157 months imprisonment. The court also directed Dennis to pay $564,630 in

restitution, the amount of which he defrauded the Government on the health care charges. There

was no more detailed discussion of the amount set for restitution—not in the PSR, not in Dennis’s

sentencing memorandum, and not in the sentencing transcript.

       Dennis now challenges the validity of his guilty plea for Counts 7 and 9 as well as the

procedural reasonableness of his sentence. Despite the fact that Dennis was originally sentenced

almost seven years ago, his case is before us on direct appeal. This is because his judgment was

vacated and re-entered on January 15, 2013 after Dennis successfully appealed a motion under 28




                                               -3-
U.S.C. § 2255 on grounds that his original counsel was ineffective for failing to file a notice of

appeal.

                                         II. GUILTY PLEA

          Dennis claims that his plea to Counts 7 and 9 were not knowing and voluntary because the

district court failed to comply with Federal Rule of Criminal Procedure 11 before accepting his plea.

Rule 11 is intended to ensure that a defendant’s plea is knowing, voluntary and intelligent by

ensuring that he understands his rights, the nature of the crime charged, the consequences of a plea,

and the factual basis for concluding that the defendant committed the crime charged. United States

v. Webb, 403 F.3d 373, 378-79 (6th Cir. 2005). A violation of the rule can undermine the validity

of a plea. Id. at 378.

          Normally, we would review a Rule 11 violation for harmless error. Fed. R. Crim. P. 11(h);

United States v. Martin, 668 F.3d 787, 791 (6th Cir. 2012). But because Dennis did not object at

the plea colloquy, we must instead evaluate this claim for plain error. United States v. Page, 520

F.3d 545, 546 (6th Cir. 2008). To establish plain error, Dennis must show “(1) that an error occurred

in the district court; (2) that the error was plain, i.e., obvious or clear; (3) that the error affected

defendant’s substantial rights; and (4) that this adverse impact seriously affected the fairness,

integrity or public reputation of the judicial proceedings.” Id. at 547 (quoting United States v. Vonn,

535 U.S. 55, 59 (2002)).

A. Manufacturing Crack Offense

          The only error Dennis alleges as to Count 7 is the district court’s incorrect reference to

Count 7 as “possession with intent to distribute” even though Count 7 was the manufacturing offense

and the Government had agreed to drop the possession with intent to distribute charge. Dennis


                                                  -4-
argues that the mis-statement was enough to confuse him as to the nature of his guilty plea even

though the court read the correct elements of the manufacturing offense and correctly referred to

Count 7 as “manufacturing” when discussing Count 9.

       Under Rule 11(b)(1)(G), the court accepting a plea must inform the defendant of “the nature

of each charge to which the defendant is pleading.” This provision merely requires that “the district

court must be satisfied, after discussion with the defendant in open court, that the defendant

understands the elements of the offense,” which usually means that the court must recite the

elements the Government would have to prove at trial. United States v. McCreary-Redd, 475 F.3d

718, 723 (6th Cir. 2007) (internal quotation marks omitted). Here, the court read the correct

elements of the manufacturing offense and confirmed that Dennis understood them. But an

otherwise accurate explanation of the nature of an offense can become an inadequate explanation

when the court introduces inaccurate information. See, e.g., Martin, 668 F.3d at 792 (treating the

district court’s erroneous description of the mandatory minimum as an error, even though the court

later correctly described the accurate mandatory minimum). While we hesitate to say that the court

inadequately explained the nature of an offense due to a mere mis-statement, the name of an offense

carries significant implications, especially here where the named offense was one that the

Government agreed to drop. Asking Dennis how he pleaded to the incorrect offense was error, and

the error was clear and obvious.

       Nevertheless, this error does not amount to reversible plain error unless it affected Dennis’s

substantial rights. See Page, 520 F.3d at 547. A Rule 11 violation only satisfies this element of the

plain error standard when the defendant shows a reasonable probability that, but for the error, the




                                                -5-
defendant would not have pleaded guilty. United States v. Dominguez-Benitez, 542 U.S. 74, 83

(2004).

          Reviewing the entire plea colloquy and the remaining record, as we must, we do not find

there to be a probability that Dennis would have pleaded differently that is “sufficient to undermine

confidence in the outcome” of his case. Id. (internal quotation marks omitted). Unlike the error

Dennis cites in United States v. Szymanski, 631 F.3d 794, 801 (6th Cir. 2011), where the district

court completely omitted the scienter element of the offense and was thus unable to determine

whether the defendant understood his plea,1 the court here did not omit necessary elements of the

offense. Nor is this case like United States v. Maye, 582 F.3d 622, 627 (6th Cir. 2009) where the

colloquy revealed that the court was confused about, and provided a mistaken description of, what

was required to establish guilt.

          Further undermining Dennis’s argument is the fact that the plea colloquy contains numerous

correct references to Count 7 as a “manufacturing” offense, including one the court made when

discussing Count 9 and one the prosecuting attorney made. The accurate and complete descriptions

of Count 7 in the indictment and the plea agreement provided sufficient information for Dennis to

be aware of the nature of the offense before the plea hearing. The plea colloquy is devoid of any

suggestion that Dennis did not understand the nature of Count 7.

          Dennis did not attempt to rescind his plea before sentencing, and we see nothing in the record

to suggest that Dennis would have had any incentive to plead differently had the court not misstated

the charge. The testimony regarding the underlying facts of the offense shows that the Government


          1
        The Rule 11 question in Syzmanski was before the court on harmless error review, but the
harmless error standard also limits reversal to situations in which the error affected the defendant’s
substantial rights. 631 F.3d at 801.

                                                   -6-
could have proven the manufacturing offense because Dennis admitted that he “rocks up [crack]

himself” and officers found a mixing bowl used for manufacturing crack in his home. It is not clear,

moreover, that Dennis would have had any incentive to plead differently whether the offense

charged was possession with intent to distribute or manufacturing because both offenses fall under

the same statute and carry the same statutory and Guidelines penalties. See 21 U.S.C. § 841(a)(1);

USSG § 2D1.1.

        Dennis presents an error but not sufficient evidence to show a reasonable probability that,

but for the error, he would not have pleaded guilty. Thus, the error here does not rise to the level

of plain error.

B. Firearm Offense

        Dennis alleges several Rule 11 errors in relation to Count 9, possession of firearms in

furtherance of a drug trafficking crime under 18 U.S.C. § 924(c). According to him, these errors in

combination deprived him of substantial rights.

        First, Dennis argues that the court erred under Rule 11(b)(1)(G) by erroneously describing

the elements of Count 9 when it said that the first element was “that you committed the drug

trafficking offense in Count 7” even though the indictment listed both “manufacturing and

possession with intent to distribute” as predicate offenses for Count 9. It did not. Dennis’s

argument depends on his assumption that by pleading guilty to Count 9, he was admitting to the

dropped possession with intent to distribute charge. But a conviction under 18 U.S.C. § 924(c) only

requires that the defendant have committed one of the predicate drug trafficking crimes, not both.

We have held that where a defendant may be properly convicted based on one of two elements in

the alternative, it does not constitute error to instruct a jury to convict based on one element “or” the


                                                  -7-
other even though the indictment lists the elements with the conjunctive “and.” United States v.

Mason, No. 95-6075, 1997 WL 242088, at *3 (6th Cir. 1997). We see no reason why a plea would

be any different.

       Second, Dennis argues that the court did not ensure that there was a sufficient factual basis

for the crime under Rule 11(b)(3). His argument depends on another alleged error under Rule

11(b)(1)(G): the court should have explained the offense beyond reciting the elements. This one

takes a little explaining. Dennis says that the court had an obligation to elaborate on the phrase “in

furtherance of” to ensure that he knew that the mere presence of a gun was not sufficient. See

United States v. Mackey, 265 F.3d 457, 460-61 (6th Cir. 2001) (holding that “in furtherance of”

requires more than the mere presence of a gun). He also contends that the court should have

provided additional explanation as to which drug trafficking crime was the predicate offense and

which gun served as the basis for the offense because, as charged, the offense was “inherently

confusing.” Because the court did not provide additional explanations, his argument goes, the

factual basis provided by the Government’s witness could not have been sufficient to ensure that

Dennis knowingly pleaded guilty because he did not know the facts failed to show that he committed

the offense.

       Dennis is correct as to the interplay of Rules 11(b)(3) and 11(b)(1)(G). Under Rule 11(b)(3),

“the court must determine that there is a factual basis for the plea” to ensure the plea is accurate and

there is some evidence that the defendant actually committed the offense. McCreary-Redd, 475 F.3d

at 722. The Rule 11(b)(3) requirement for a factual basis is integrally related to the Rule

11(b)(1)(G) requirement that the court rehearse the elements of the offense because the latter is

necessary for the defendant to understand the facts in relation to the law. Id. at 723. Thus a failure


                                                  -8-
to recite the elements can turn an otherwise sufficient factual basis into a Rule 11(b)(3) error, as in

McCreary-Redd. 475 F.3d at 723-24.

       The problem with Dennis’s argument is that nothing in the record created an obligation for

the court to provide additional explanations of the offense. We have said repeatedly that the court’s

obligation under Rule 11(b)(1)(G) is to recite the elements of the offense. E.g., McCreary-Redd,

475 F.3d at 723. We have looked for further clarification of an offense only where a party, or the

court itself, was confused about the elements of the offense. In Maye, for example, the court

reviewed the entire record and found that the court’s plea-hearing questions suggested that mere

possession was enough to prove a § 924(c) offense, and the sentencing transcript plainly showed the

defendant did not understand that mere possession of a gun was not enough. 582 F.3d at 627-30.

Likewise, in Szymanski, the court entirely omitted a critical element of the crime. 631 F.3d at 799-

801. There is no indication here of a similar misunderstanding on the part of anyone. During the

plea colloquy, the court accurately listed all essential elements of the offense and repeatedly used

the phrase “in furtherance of a drug trafficking crime”; there was no exchange during the colloquy

suggesting that mere possession was sufficient; and there is no evidence anywhere else in the record

showing a hole in Dennis’s understanding of the elements of the offense.

       Nor is there reason to require more evidence here based on the “confusing” nature of the

term “in furtherance of” or the fact that Count 9 could have been based on more than one predicate

offense and more than one gun. Dennis points to our statement in Mackey that the term

“furtherance” should be given its natural dictionary definition to mean “helping forward” or

“promotion,” but he does not explain why a college-educated defendant would not know the

ordinary definition of the term. See Mackey, 265 F.3d at 460-61. Additionally, the court’s recitation


                                                 -9-
of the elements did show that more than possession was required. It said that the offense required

“second, that you knowingly possessed a firearm; [and] third, that the possession of the firearm was

in furtherance of the drug trafficking crime.” As to Dennis’s argument that the indicted offense in

Count 9 was inherently confusing because it could have been based on multiple predicates and

multiple guns, we disagree. The plea, as explained by the court during the colloquy, was predicated

only on the manufacturing charge. The fact that Dennis had two guns did not make the law

confusing.

        Because there was no Rule 11(b)(1)(G) error, we are left only with the question of whether

the factual basis was not sufficient on its own. The special agent testifying for the Government said

that officers found a loaded semiautomatic pistol and a loaded revolver between the box spring and

side rail of the bed where Dennis was sleeping. It is unclear what room Dennis slept in, but the

crack and the manufacturing supplies were found in the basement of the same house as the guns.

Dennis argues that this testimony was insufficient because the agent did not say that the gun was

strategically located for Dennis’s use during the manufacture of crack and because it is questionable

how a gun could be used in furtherance of manufacturing as opposed to possession with the intent

to distribute.

        Under Mackey, it is not enough for a firearm to be located in the same premises as a drug

transaction without a showing of a connection between the two, but it is enough if the gun was

“strategically located so that it is quickly and easily available for use.” 265 F.3 at 462. Other factors

relevant to whether it was possessed in furtherance of the drug trafficking crime include: the type

of weapon; whether it was loaded; the legality of its possession; the type of drug activity involved;

and the time and circumstances under which the weapon was found. Id. The purpose of these


                                                  -10-
factors is to distinguish innocent possession—such as a wall-mounted antique rifle—from

possession that is actually used to promote the particular type of drug trafficking crime at issue. Id.

       We do not agree with Dennis that one cannot use a gun “in furtherance of” a manufacturing

offense. The gun can be used to protect the stash. See United States v. Combs, 253 F. App’x 532,

535 (6th Cir. 2007) (concluding that gun found on a bed headboard was sufficient to prove it was

possessed in furtherance of a manufacturing offense); United States v. Couch, 367 F.3d 557, 561

(6th Cir. 2004) (holding that a jury can reasonably infer possession in furtherance of a drug

trafficking crime if the gun is strategically located to provide defense); see also United States v.

Mobley, 618 F.3d 539, 547 (6th Cir. 2010) (noting that the information necessary to satisfy the

factual basis requirement is lower than that necessary to sustain a guilty verdict at trial). And the

testimony includes “some evidence” to suggest exactly that. The guns were loaded and within

Dennis’s reach while he slept in a house containing a large of amount of crack that he had recently

manufactured.

       Finally, Dennis asserts that because he told the court that he had not discussed defenses with

his attorney, the court should have further inquired into his understanding of the offense to protect

his right to counsel. Dennis admits that he changed this answer immediately after conferring with

counsel but cites his attorney’s later admission during § 2255 proceedings that he had done no legal

research as to possible defenses. We decline to hold that a court’s obligations under Rule

11(b)(1)(G) are heightened by a later discovery that counsel did not research possible defenses. At

the plea colloquy, the defendant himself assured the court that he had been adequately advised.

Counsel’s arguments are more appropriate for a § 2255 proceeding.

       We discern no error as to Dennis’s guilty plea to Count 9.


                                                 -11-
                                        III. SENTENCING

       Dennis claims that the district court procedurally erred in sentencing him when it did not

recognize its authority to vary downward on the sentence due to the 100:1 powder-to-crack cocaine

sentencing ratio2 and when it failed to consider offsets to the restitution amount.

       We review the procedural reasonableness challenge based on the crack-cocaine disparity

under the abuse-of-discretion standard. See United States v. Battaglia, 624 F.3d 348, 350 (6th Cir.

2010); see also United States v. Priester, 646 F.3d 950, 951-52 (6th Cir. 2011) (holding that plain

error review was inappropriate where defendant conveyed to the lower court the substance of his

argument that the court should vary from the Guidelines due to the crack-cocaine disparity). Under

the abuse-of-discretion standard, the district court’s legal interpretations are reviewed de novo, but

the court’s factual findings will not be set aside unless they are clearly erroneous. United States v.

Brooks, 628 F.3d 791, 796 (6th Cir. 2011).

       In 2009, the Supreme Court held that a district court can—based solely on its own policy

disagreements—categorically reject the 100:1 powder-to-crack cocaine sentencing ratio and

sentence a defendant to a lower sentence than called for by the Guidelines. Spears v. United States,

555 U.S. 261, 265-66 (2009). The district court did not have the benefit of Spears because it



       2
         The Fair Sentencing Act (FSA), passed in 2010, reduced the powder-to-crack cocaine
disparity that Dennis complained of in 2007. Pub. L. 111-220, 124 Stat. 2372 (Aug. 3, 2010). Soon
after passage of the FSA, the Supreme Court held that the FSA’s more lenient penalties apply to
those whose crimes preceded enactment of the FSA but who were sentenced after that date. Dorsey
v. United States, 132 S. Ct. 2321, 2331 (2012). The question—whether for purposes of Dorsey
Dennis was sentenced at his initial sentencing in 2007 or when the judgment was reimposed in
2013—was answered in United States v. Hughes, which held that when a sentence is vacated on
appeal and the same sentence is reimposed on remand, Dorsey applies only if the initial sentence
occurred after enactment of the FSA. 733 F.3d 642, 643 (6th Cir. 2013). Dorsey, therefore, does
not apply to the present appeal.

                                                -12-
sentenced Dennis in 2007. On several occasions, most recently in Priester, we have addressed

claims under Spears that are similar to Dennis’s claim. 646 F.3d at 951-53. At his pre-Spears

sentencing hearing, the defendant in Priester asked the district court to sentence him below the

Guidelines range because of the 100:1 disparity. Id. at 951. The court did not affirmatively say

whether it had the authority to take the ratio out of play based on its own policy disagreements, but

it acknowledged that a disparity existed in the Guidelines and referenced a recent change in the

Guidelines. Id. at 952. Because these statements went “beyond mere silence,” thus raising a

question as to the court’s assumptions about its later-granted authority under Spears, we remanded

under abuse-of-discretion review so that the district court could decide for itself whether Spears

would have made a difference. Id. at 951-53. “To say, on this record, that the court silently

recognized its later-announced authority in Spears, but chose not to exercise that authority, would

be mere fiction.” See Priester, 646 F.3d at 952.

       We have also addressed similar claims in three published cases where the sentencing court

was entirely silent as to its own pre-Spears authority to take the disparity out of play. United States

v. Curb, 625 F.3d 968, 970, 972-73 (6th Cir. 2010); United States v. Simmons, 587 F.3d 348, 363-65

(6th Cir. 2009); United States v. Johnson, 553 F.3d 990, 995-96 (6th Cir. 2009). In Johnson, we

remanded because we had “no way of ascertaining” from the record whether the court would have

imposed the same sentence in light of Spears. 553 F.3d at 996 n.1. Again, in Curb, we remanded

for resentencing because “we [could ]not know from the sentencing transcript whether the district

court would have imposed the same sentence . . . had it been aware of its authority to vary

categorically . . . based on a policy disagreement with the 100:1 crack-to-powder ratio.” 625 F.3d

at 973. Only in Simmons, the second in this line of cases, did we refuse to remand. 587 F.3d at 365.


                                                 -13-
There, we said that the defendant could not show plain error where the court repeatedly recognized

that the Guidelines were advisory but “provide[d] no indication that policy disagreements are not

a proper basis to vary.” Id. at 364-65. We later recognized in Curb, however, that this “express

statement” rule from Simmons was in direct conflict with the “inability to ascertain” rule from

Johnson. Because Johnson came first, we held that “Johnson, then, controls the standard for remand

under . . . Spears.” 625 F.3d at 973.

       The present case is most closely analogous to Priester because the sentencing court’s

statements went “beyond mere silence” and were enough to raise a question about the court’s

understanding of its authority. After discussing the relevant statutory minimum of 120 months for

Counts 7 and 9 combined, the court said:

       Really, there is not much to consider with regard to the drug offense and firearms.
       I am going to exclude that from the discussion simply because the statute provides
       the sentence for both of those. The question really becomes, with regard to crafting
       the right sentence, how to look at the health care fraud and related money laundering
       issue.

The statutory minimum was much lower than the Guidelines range of 157-180 months and did not

restrict the court’s authority under Spears. However, the “not much to consider” language suggests

that the court believed it could not and would not consider anything else relevant to these drug and

firearm offenses in the ensuing discussion. The court later said “I am to look at . . . the kind[] of

sentence that the sentencing range established together with policy statements from the sentencing

commission, the need to avoid unwarranted sentencing disparities with defendants of similar

records.” As the court had already explained, this recitation of the § 3553(a) factors “excluded”

considerations relating to the drug offense. Moreover, any general acknowledgment of policy

statements by the Sentencing Commission says nothing about whether the court’s own policy


                                                -14-
disagreements were relevant. We cannot say on this record that the court silently recognized its

later-granted authority under Spears, and therefore must remand under Priester. See Priester, 646

F.3d at 952.

       Even if we could construe the court’s statements as “mere silence,” we have “no way of

ascertaining” from this record whether the court would have imposed the same sentence in light of

Spears, and therefore remand would be appropriate under that construction based on Johnson and

Curb. Johnson, 553 F.3d at 996 n.1; see also Curb 625 F.3d at 973. Whether or not the rule from

Simmons has any continued viability, it does not apply here because—unlike in Simmons—the court

below did not expressly acknowledge that the Guidelines are advisory and did not include the drug

offense in the § 3553(a) discussion. Simmons, 587 F.3d at 364-65; see also Curb, 625 F.3d at 973

(holding that Johnson, not Simmons, controls the standard for remand under Spears).

       We remand for the district court to determine for itself whether Spears would have made a

difference. In this remand, we note no error in the district court’s imposition of restitution. See

United States v. Freeman, 640 F.3d 180, 186 (6th Cir. 2011) (specifying that plain error review

applies where the defendant did not raise a procedural sentencing error below). Dennis’s objection

to the restitution amount seems to be that the court did not order the probation office to provide a

more detailed statement of the amount of loss calculation. Dennis, however, admitted to the amount

of loss by not objecting to this portion of the PSR. See Fed. R. Crim. P. 32(i)(3)(A) (noting that any

undisputed portion of the PSR may be accepted as fact); see also United States v. Williams, 612 F.3d

500, 515-16 (6th Cir. 2010) (reviewing the defendant’s claim regarding the district court’s restitution

findings only after establishing that the defendant had objected to the PSR). We will not disturb this

portion of the sentence.


                                                 -15-
                                    IV. CONCLUSION

       For the reasons explained above, we AFFIRM Dennis’s guilty plea to Counts 7 and 9, but

REMAND for resentencing in light of Spears and Priester.




                                            -16-
       MCKEAGUE, Circuit Judge, concurring in part and dissenting in part

       While I agree with the majority that Dennis’s Count 7 and 9 convictions should be affirmed,

I do not believe the district court committed a procedural error in sentencing that warrants remand.

This is not a case where the district court’s intention is unclear. See United States v. Curb, 625 F.3d

968 (6th Cir. 2010). The district court clearly assumed that it had authority to deviate from the

advisory guidelines range on policy grounds and correctly recognized that there were no grounds

to depart from the lower statutory mandatory minimum with which it complied. Remand is therefore

unnecessary. For the following reasons, I respectfully dissent from the analysis in Section III of the

majority opinion.

       The majority contends that we have “no way of ascertaining” what sentence the district court

would have imposed if the district court had been aware of its ability to depart or vary from the

sentencing guidelines based on policy considerations. The primary source of concern is the district

court’s statement that “[r]eally, there is not much to consider with regard to the drug offense and

firearms. I am going to exclude that from the discussion simply because the statute provides the

sentence for both of those.” R. 50, Sentencing Tr. at 9. PageID # 252. When this language is read

in context, I believe that it becomes readily apparent that the district court would have imposed the

same sentence, even in light of Spears.

       To begin, there simply can be no question as to whether the district court was aware of the

policy arguments pertaining to the 100:1 crack-powder sentencing disparity. Dennis extensively

discussed in his sentencing memorandum the policy reasons for a downward variance from the

sentencing guidelines and indicated that the court could deviate from the sentencing guidelines “to

avoid unwarranted sentencing disparities among defendants with similar records who have been


                                                 -17-
convicted of offenses involving crack cocaine.” See Def. Sentencing Mem. at 6, 12–19, PageID #

132, 138–44. To support his contention that a variance was warranted, Dennis cited to the

Sentencing Commission’s policy statements and reports, which strongly indicate that crack is

punished too heavily in comparison to cocaine, and to numerous circuit and district court cases

where courts have varied from the guideline’s range for policy reasons. Id.

        Dennis reiterated these same points at the sentencing hearing. As his counsel explained to

the court:

        I would just like the Court to consider the 18 U.S.C. 3553(a) factors, the disparity,
        which the argument is set forth in the sentencing memorandum, between crack
        cocaine and powder cocaine penalties, Your Honor. And I would ask the Court, to
        seriously consider a 120-month sentence which would represent the statutory
        minimum mandatory and again is below the advisory guideline range.

R. 50, Sentencing Tr. at 5, PageID # 248 (emphasis added). All of the evidence before us indicates

that the district court in the present case, an experienced district judge, was extensively versed in

the policy arguments favoring a downward departure. Additionally, the language above and the

other references to the guideline’s advisory nature combined with the court’s express reference to

United States v. Booker, 543 U.S. 220 (2005) indicate that the court knew the guidelines were not

mandatory.


        When the sentencing transcript is viewed in its entirety, it is clear that the district court never

affirmatively stated or even hinted that it believed that the court lacked authority to deviate from the

sentencing guidelines on the basis of a policy disagreement. Following Dennis’s request for a 120-

month sentence, the court stated, “[j]ust to be clear, Count 7 and Count 9 each carry five-year

consecutive minimum sentences. Counts 2 and 4 do not.” Id. Dennis’s counsel stated that this was

correct. As the district court’s statement indicates, even excluding Counts 2 and 4, Dennis would


                                                   -18-
serve 120 months. Thus, by requesting only 120 months, Dennis sought to eliminate any

punishment for Counts 2 and 4 beyond the mandatory minimum 120-month punishment for Counts

7 and 9. As the court explained shortly after this exchange:

        As we have discussed, Counts 7 and 9 carry mandatory minimum sentences of 60
        months for a total of 120. And that’s of some moment to the Court because that
        would be imposed even if there were no health care fraud or money laundering.
        That’s a factor that seems to be important in the way this case should be analyzed for
        the appropriate sentence.

Id. at PageID # 250–51 (emphasis added). The district court then began its § 3553 (a) analysis and

indicated that it would first consider the nature and circumstances of the offense. It was only at this

moment that the court stated:

        Really, there is not much to consider with regard to the drug offense and firearms.
        I am going to exclude that from the discussion simply because the statute provides
        the sentence for both of those. The question really becomes, with regard to crafting
        the right sentence, how to look at the health care fraud and related money laundering
        issue. There was a lot of money involved. There was a long period of time that the
        fraudulent billing occurred. The scheme was complex and aggravated.

Id. at PageID # 252. Contrary to the majority’s suggestion, in no way does the line “there is not

much to consider” affirmatively indicate that the court believed it was prohibited from considering

policy disagreements as grounds to vary from an otherwise applicable advisory guideline range.

Instead, the record clearly shows that the district court was recognizing that the statutory floor

imposed a limit on the minimum punishment for Counts 7 and 9. This is why the district court

referred to what the “statute provides,” not what the guidelines provide. Id. Under these

circumstances, it is clear that the court was only expressing its belief that a sentence of at least 120

months was required for Counts 7 and 9, irrespective of its disagreement with the policy represented

by the crack-cocaine ratio and irrespective of its “presumed” authority to vary downward from any

otherwise applicable advisory guideline range.


                                                 -19-
       The only question then that remained was what additional punishment should be levied for

the money laundering offense and the aggravated and complex health care fraud which cost the

federal government $564,630. Effectively, the district court imposed a 37-month sentence for Count

2, Health Care Fraud and Count 4, Money Laundering. Both Counts 2 and 4 are class C felonies and

each is punishable by up to 10 years in prison. The district court’s determination that such serious

felonies should be punished and require deterrence in their own right, beyond the minimum

punishment mandated by Congress for Counts 7 and 9, was not an abuse of discretion, especially

considering that Dennis’s overall punishment of 157 months was at the very bottom of the overall

advisory guideline range (157 to 180 months) and conformed to the recommendation in the

presentence report. Presentence Rep. at 21.


       In sum, the crack-cocaine disparity issue was thoroughly brought to the sentencing court’s

attention, and the district court considered the Sentencing Commission’s policy statements and

recognized the advisory character of the guidelines by citing to Booker. The district court did not

in any way state or imply that a policy disagreement was not a proper basis to vary and the

suggestion that the court’s conduct went “beyond mere silence” misinterprets the record. See United

States v. Simmons, 587 F.3d 348, 364 (6th Cir. 2008) (“[W]hen a district court observes that the

Guidelines are advisory and provides no indication that policy disagreements are not a proper basis

to vary, then a sentence within the Guidelines range remains presumptively reasonable on appeal.”).1

       1
         I find perplexing the majority’s open ended query, regarding “[w]hether or not the rule from
Simmons has any continued viability.” Simmons has not been overturned en banc, and therefore,
remains Sixth Circuit precedent. Moreover, the very cases that the majority cites, most notably Curb,
extensively discuss Simmons and “harmonize” it with Johnson, rather than erasing the case’s
“viability.” See Curb 625 F.3d at 973 (discussing the interaction of Johnson and Simmons).
Furthermore, subsequent courts, including the Priester court, have discussed and distinguished
Simmons, reflecting the case’s continuing relevance and importance. Priester, 646 F.3d at 952. Any

                                                -20-
To the contrary, what the district court said that goes beyond “mere silence” indicates that the court

assumed it had authority to vary downward and gave defendant Dennis every benefit of his argument

by exercising that authority to impose the most lenient prison sentence permitted by law for his

cocaine base manufacturing offense. One cannot help but question what magic words the district

court, writing before Spears, should have presciently stated to have clarified its cognizance of its

authority to deviate on policy grounds, or how the court could have more clearly stated that the

statutory minimum of 120 months was the appropriate sentence for the drug and firearms offense

even in light of the crack-cocaine policy arguments. Because we are able to ascertain from the

record that the district court would have imposed the same sentence even if it were to have expressly

recognized what it impliedly assumed, remand for resentencing is a patent waste of judicial time and

resources. I therefore dissent.




suggestion of Simmons’ demise is premature.

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