                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0006n.06

                                             No. 09-3283
                                                                                            FILED
                                                                                        Jan 04, 2011
                             UNITED STATES COURT OF APPEALS
                                                                                  LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                  )
                                                           )         ON APPEAL FROM THE
       Plaintiff-Appellee,                                 )         UNITED STATES DISTRICT
                                                           )         COURT FOR THE NORTHERN
v.                                                         )         DISTRICT OF OHIO
                                                           )
RANDY S. DELANO,                                           )                            OPINION
                                                           )
       Defendant-Appellant.                                )




BEFORE:        COLE and WHITE, Circuit Judges; and O’MEARA, District Judge.*

       COLE, Circuit Judge. Defendant-Appellant Randy Delano appeals his sentence of 168

months’ imprisonment for two counts of possession with the intent to distribute cocaine and crack

cocaine, in violation of 21 U.S.C. § 841(b)(1)(A) and (b)(1)(C). Delano contends that his sentence

is substantively unreasonable because (1) the district court placed excess emphasis on Delano’s

statement at the sentencing hearing and insufficient weight on his difficult upbringing and mental

illness, and (2) his criminal history category overstated the seriousness of his prior criminal conduct.

For the reasons stated below, we AFFIRM.




        *
       The Honorable John Corbett O’Meara, United States District Court for the Eastern District
of Michigan, sitting by designation.
No. 09-3283
USA v. Delano

                                        I. BACKGROUND

       In June 2007, a police officer stopped Delano and his girlfriend, Loreal Johnson, for a traffic

violation. The officer questioned Johnson about a bulge in her clothing, which she admitted

contained drugs that Delano had asked her to hold for him when he noticed the officer behind their

car. Johnson had approximately 120 grams each of cocaine and crack cocaine. A jury convicted

Delano of two counts of possession with the intent to distribute cocaine and crack cocaine.

         Delano was subject to a 120-month mandatory minimum on the crack cocaine count, and

a 240-month statutory maximum on the cocaine count. The United States Pretrial Services and

Probation Office prepared a presentence report (“PSR”) calculating a U.S. Sentencing Guidelines

(“Guidelines”) range of 210 to 262 months, based on an offense level of thirty-two and criminal

history category VI. The district court sustained Delano’s objection to the PSR’s recommended two-

level enhancement for obstruction of justice, resulting in an offense level of thirty.

       At the sentencing hearing, Delano requested a downward departure under Guidelines

§ 4A1.3(b)(1) on the basis that criminal history category VI overstated the seriousness of his prior

conduct. He had been accorded thirteen criminal history points for his prior offenses and an

additional two for the proximity of the current offense to his release from custody for a prior

conviction. He argued that because a number of his convictions were misdemeanors, those offenses

should be grouped by type and each group counted only once, resulting in six criminal-history points

and bringing him down to criminal history category III. The district court considered and rejected

this argument, noting that many criminal defendants have a number of misdemeanor offenses that

increase their criminal-history category and that Delano’s prior offenses included complicity to

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No. 09-3283
USA v. Delano

breaking and entering and two cocaine possessions in addition to the misdemeanors. Delano’s

attorney also presented evidence that Delano suffered from bipolar disorder and was the product of

an abusive, neglectful, and traumatic childhood. Then, Delano was given an opportunity to speak:

       DISTRICT COURT: Is there anything you want to say, Mr. Delano?

       DELANO: Yes. Yes, sir. Since I’ve been found guilty I wrote down like numerous
       pages of what I planned on saying before you on this, and it was all—I just crumbled
       it up and threw it away, because I just—I don’t even know how to say it, but I feel
       the prosecution is wrong. They keep putting it off like I pawned this off on her, like
       I threw it on her, but if I would have got caught with something in my possession and
       they would have came to me and was like, well, say it’s such-and-such, we going to
       do this for you, I would have said it was such-and-such, too.

       DISTRICT COURT: I don’t understand what you’re saying.

       (The defendant spoke with counsel off the record.)

       DELANO’S ATTORNEY: Thank you. We’re done, Your Honor.

       DISTRICT COURT: I didn’t mean to stop him, I just didn’t understand what he was
       saying.

       DELANO: I’m saying if I felt that—they wanted to make it sound like a female is
       not capable of transporting drugs like that. If you look at my past criminal history,
       like you said, 1.9, I went from a cocaine problem to a distribution overnight, and I
       just don’t see how it can happen like that. They want to act like a female is not
       capable of transporting this much drugs on her own.

       DISTRICT COURT: So you’re saying she’s the one that had the drugs?

       DELANO: She is the one that got caught with them, yes. This is 2008, we got a
       female running for president. Why can’t we have a female that’s—I just don’t see
       how 168 months to 210 months for something I ain’t never get caught with, and what
       she’s going to say on the stand, and—I’m sorry, Your Honor. You know what I’m
       saying? I know you’ve got your—

       DISTRICT COURT: Okay.


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No. 09-3283
USA v. Delano

       DELANO: I just can’t see me like—that’s a lot of time for—if anything, they should
       have kept me with the conspiracy charge, you know what I’m saying, because I was
       in the car. They could dismiss the conspiracy charge and charge me with possession,
       and I ain’t never have it in my possession. The cops and the prosecutor and the jury
       had it in their possession more than I did. I ain’t never had it in my possession. But
       because it was a female that got caught with it, they want to act like she’s not capable
       of doing that. And a female is just as capable of doing that to get money just as a guy
       is.

       And I just don’t see me being over—that’s it, Your Honor. Thank you.

       DISTRICT COURT: Well, you really have done yourself a disservice, but I mean,
       that’s what you decided to do.

(Sentencing Hr’g Tr., District Ct. Docket No. 108, at 21-23.) The district court then discussed the

18 U.S.C. § 3553(a) factors, explaining that Delano’s bipolar disorder and significant problems with

regard to his childhood suggested a below-Guidelines sentence would be sufficient. However, the

court then stated:

       The real problem I guess with regard to you is with regard to what you just said. I
       also need to impose a sentence that reflects just punishment, affords adequate
       deterrence, and protects the public, and reflects the seriousness of the offense. And
       I was inclined earlier to believe that a lower sentence, you know, could serve those
       purposes, but by trying to shove off all the responsibility for this off on your
       girlfriend, it raises real questions in my mind that a longer sentence is needed to
       provide adequate deterrence and protect the public.

       So if you would have either stayed quiet, you know, which you had a right to do, or
       had simply not tried to inculpate her to help yourself, you know, I would have
       thought that there was greater hope for rehabilitation.

       ....

       So taken as a whole, I am going to sentence you at the low end of the guidelines, and
       I would indicate to you you would have gotten below the guidelines if you wouldn’t
       have reflected your efforts to incriminate her.



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No. 09-3283
USA v. Delano

(Sentencing Hr’g Tr., District Ct. Docket No. 108, at 25-26.) The court went on to sentence Delano

to 168 months of incarceration on both possession counts, to run concurrently. Delano timely filed

this appeal.

                                           II. ANALYSIS

       A. Standard of Review

       This Court reviews a district court’s sentencing determination for reasonableness under a

deferential abuse-of-discretion standard. United States v. Studabaker, 578 F.3d 423, 430 (6th Cir.

2009) (citing United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007)). Delano only challenges the

substantive reasonableness of his sentence.

       The district court must impose a sentence that is “sufficient, but not greater than necessary,

to comply with” the factors in 18 U.S.C. § 3553(a). See United States v. Tristan-Madrigal, 601 F.3d

629, 632 (6th Cir. 2010). “‘A sentence is substantively unreasonable if 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.’” Id. at 633 (quoting

United States v. Walls, 546 F.3d 728, 736 (6th Cir. 2008) (internal quotation marks and alterations

omitted)). A sentence within the Guidelines range “warrants a presumption of reasonableness.”

United States v. Herrera-Zuniga, 571 F.3d 568, 590 (6th Cir. 2009).

       B. Substantive Reasonableness

       Delano first argues that his sentence is substantively unreasonable because the district court

placed too much weight upon his statement at allocution and not enough weight upon his difficult



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No. 09-3283
USA v. Delano

upbringing and bipolar disorder. The district court considered Delano’s mental illness and troubled

childhood and ultimately agreed with Delano that these factors supported a lower sentence.

        When Delano spoke to the district court, he continued to blame the crime on his girlfriend.

Finding that Delano’s statements showed a failure to take responsibility and lack of remorse that

called into question whether a below-Guidelines sentence would reflect the seriousness of the

offense, protect the public, and provide adequate deterrence, the district court imposed a sentence

at the very bottom of the Guidelines range. Delano’s contention that his sentence contains a four-

year penalty for exercising his constitutional right to speak at sentencing is off the mark for three

reasons. First, the argument assumes that Delano would have received the mandatory minimum of

120 months, which is four years shorter than the 168-month sentence the district court actually

imposed. There is no support for this assumption in the record. The district court never indicated

that it was considering a120-month sentence; it simply stated that Delano “would have gotten below

the guidelines if [he] wouldn’t have reflected [his] efforts to incriminate [his girlfriend]” (Sentencing

Hr’g Tr., District Ct. Docket No. 108, at 26). We cannot know how far below the Guidelines that

sentence would have been.

        Second, it was not Delano’s exercise of his right to speak, but rather, that he did not accept

responsibility for his crime, that the district court took into account in considering the § 3553(a)

factors. This was not error.

        Finally, to the extent that Delano claims his statement was only a single factor for the district

court to consider in determining an appropriate sentence, he is conflating facts with factors. One

fact, such as a defendant’s criminal history or statement at allocution, “may bear upon more than one

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No. 09-3283
USA v. Delano

of the section 3553(a) factors.” United States v. Gunter, 620 F.3d 642, 647 (6th Cir. 2010). As the

district court explained, Delano’s statement evidenced a refusal to take responsibility and lack of

remorse that bore on several factors, including the need for the sentence imposed to reflect the

seriousness of the offense, promote respect for the law, afford adequate deterrence, and protect the

public. Cf. 18 U.S.C. § 3553(a)(2). The district court did not abuse its discretion when it determined

that a downward variance would be inappropriate and imposed a sentence at the very bottom of the

Guidelines range.

       Delano also argues, as he did below, that criminal history category VI overstated his actual

criminal history because most of his prior convictions were misdemeanors and, thus, he was entitled

to a downward departure. When, as here, a district court is aware of its discretion to grant a

downward departure, we lack jurisdiction to review its decision not to do so. United States v.

Santillana, 540 F.3d 428, 431 (6th Cir. 2008).         We may, however, consider whether any

overstatement of Delano’s criminal history renders his sentence substantively unreasonable. See id.

We find that it does not. As the district court noted, many defendants have a large number of

misdemeanor offenses that contribute to their criminal history points. Furthermore, Delano’s

contention that grouping his misdemeanors would result in six criminal history points and a criminal

history category of III is inaccurate. Although six of Delano’s criminal history points came from

misdemeanors—two instances of theft, two instances of passing bad checks, and one instance of

petty theft—seven more came from more serious offenses—two instances of cocaine possession and

a conviction for complicity to breaking and entering and theft. With the two points added for

proximity of time to the current offense, even if the misdemeanors were given one point in total,

                                                -7-
No. 09-3283
USA v. Delano

Delano would still have ten criminal history points, which would put him in category V, not III.

Finally, even if we were to accept that criminal history category V was more appropriate, Delano’s

ultimate sentence of 168 months would still be encompassed in the new Guidelines range of 151 to

188 months. This further supports the reasonableness of Delano’s sentence.

                                      III. CONCLUSION

       For the above reasons, Delano has failed to rebut the presumption of reasonableness and his

sentence is AFFIRMED.




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