              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 09a0248n.06
                            Filed: April 1, 2009

                                        No. 07-4219

                       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
IVAN J. SMITH,                                                 Southern District of Ohio at
                                                               Columbus
       Defendant-Appellant.


                                                         /

Before:       GUY, GILMAN, and COOK, Circuit Judges.

       PER CURIAM.           Defendant Ivan J. Smith, found guilty by a jury in 2003 of three

counts of possession with intent to distribute either cocaine or cocaine base, has been twice

resentenced by the district court in the wake of United States v. Booker, 543 U.S. 220 (2005).

Smith now seeks a third resentencing, arguing that retroactive crack cocaine amendments to

the United States Sentencing Guidelines require that his prison term be reduced. Finding the

requested resentencing to be unnecessary, because the district court’s September 2007

sentence was in accordance with the retroactive November 2007 amendments, we affirm.

                                              I.

       In September 2003, Smith was found guilty by a jury of two counts of attempted

possession with intent to distribute more than 500 grams of cocaine (on two different dates),
No. 07-4219                                                                                               2

and one count of possession with intent to distribute more than five grams of cocaine base,

or “crack” cocaine. The jury made specific findings concerning the amounts alleged in the

indictment.

        Smith’s initial sentencing was held in March 2004. Smith made objections to the

recommendations in the presentence report, specifically (1) the inclusion of 505.1 grams of

a cocaine mixture discovered in a shoe box as relevant conduct, (2) a two-level enhancement

for obstruction of justice under U.S.S.G. § 3C1.1, and (3) the addition of a criminal history

point for a previous possession-of-marijuana conviction. Smith also requested a downward

departure in his criminal history category. The objections and request were denied by the

district court, which determined the sentencing guidelines range to be between 188 and 235

months in prison (offense level 34, criminal history category III). The range reflected the

two-level enhancement for obstruction of justice, which resulted from the district court’s

determination that Smith had committed perjury when he testified at trial. Smith’s sentence

included 200 months in prison on each count, to be served concurrently; eight years of

supervised release; and a fine and special assessment.

        Smith filed an appeal, claiming error in both his conviction and his sentence.1 While

the appeal was pending, Booker was decided by the United States Supreme Court, making

the sentencing guidelines advisory, rather than mandatory. We affirmed the conviction but,

citing Booker, determined that “[t]he district court committed plain error, therefore, in


        1
          During the time the first appeal was pending, Smith filed a motion for new trial based on newly
discovered evidence, which was denied by the district court. Some of those issues are the subject of Smith’s
subsequent 28 U.S.C. § 2255 petition to set aside his conviction. The district court has stayed disposition
of that petition pending resolution of the instant appeal.
No. 07-4219                                                                                 3

sentencing Smith under the then-mandatory Sentencing Guidelines based upon a judge-found

fact.” Smith’s sentence was vacated and the case was remanded for resentencing.

       At the first resentencing held November 3, 2005, the district court determined that,

post-Booker, it did not have the authority to make a factual finding on Smith’s obstruction

of justice at his trial.   Accordingly, the district court determined that the guidelines

sentencing range was 151 to 188 months, and sentenced Smith to 180 months in prison,

leaving the remaining sentence terms unchanged. The government disagreed with this

position in both its sentencing memorandum and on the record, arguing that under the post-

Booker advisory sentencing guidelines, the district court was permitted to make an

obstruction-of-justice factual finding and the resulting sentence enhancement.            The

government appealed the new sentence.

       We agreed with the government on the second appeal, concluding the district court

did have the authority to make a factual finding on the obstruction-of-justice issue under the

advisory guidelines, citing United States v. Gates, 461 F.3d 703, 708 (6th Cir. 2006); United

States v. Ferguson, 456 F.3d 660, 665 (6th Cir. 2006); and United States v. Coffee, 434 F.3d

887, 898 (6th Cir. 2006). Accordingly, we remanded the case a second time for resentencing.

       The second resentencing in this case was held September 19, 2007. Given our ruling,

the district court imposed the two-level enhancement for obstruction of justice. This

reinstated an advisory guideline range of 188 to 235 months, based on an offense level of 34

and a criminal history category of III. However, the district court did not impose a sentence
No. 07-4219                                                                                             4

in that range. For the reasons described below, the district court chose to resentence Smith

to the same 180-month period that it had imposed at the previous hearing.

        In Smith’s sentencing memorandum filed prior to the September 2007 resentencing,

he renewed the objections that he had voiced in previous proceedings, and raised a new issue

before the district court.        He specifically asked the court to consider then-recent

recommendations of the United States Sentencing Commission concerning amendments to

the guidelines reducing the disparity between crack and powder cocaine, which had not yet

been implemented.2 Application of the anticipated guidelines would have given Smith an

offense level of 32 versus a level of 34 under the then-current guidelines, and resulted in a

lowered guidelines range of 151 to 188 months’ imprisonment.

        At the sentencing hearing, the district court discussed the 18 U.S.C. § 3553(a)

sentencing factors on the record, articulating at the end the “need to avoid unwarranted

sentencing disparities among defendants with similar records who have been found guilty of

similar conduct.” Noting that it would not “wait on” the Sentencing Commission’s ultimate

conclusion regarding the proposed amendments prior to sentencing the defendant, the district

court acknowledged the disparity in sentencing “throughout the nation among federal judges

with regard to this disparity of crack and powder cocaine.” The district court discussed many

of the practical reasons why the Sentencing Commission was considering the change, and

determined it would not be fair to give the defendant a guidelines sentence “on the 100 and


        2
         In an effort to reduce the sentencing disparity between powder and crack cocaine offenses, the
November 2007 amendments reduced, by two levels, the base offense level assigned to each quantity of crack
cocaine identified in the guidelines. See Kimbrough v. United States, 128 S. Ct. 558, 569 (2007). The
amendments were made retroactive effective March 3, 2008. See 73 Fed. Reg. 217-01 (Jan. 2, 2008).
No. 07-4219                                                                                             5

1 disparity type of thing that’s going on right now, as opposed to what it might change to

later on.” The district court then sentenced Smith to the previously imposed 180 months on

each count, to be served concurrently, which is within the post-amendment guidelines range.

The government did not object to the district court’s pronouncement. Defendant then filed

this appeal.3

                                                   II.

        Although Smith requests that we vacate his sentence and remand to the district court

for application of the amended guidelines, such action would serve no real purpose. Smith

cites to 18 U.S.C. § 3582(c)(2), which provides that—as in this case—when the sentencing

range used to sentence a defendant has subsequently been lowered, the term of imprisonment

may be reduced upon appropriate motion to the sentencing court. Smith does not assert that

such a motion was made to the district court, simply stating that he is “a good and proper

candidate for an additional reduction in sentence.” Smith directs us to United States v. Poole,

538 F.3d 644 (6th Cir. 2008), where we found the proper procedure for application of

retroactive amendments to the Sentencing Guidelines was to “affirm the sentence but to

remand for consideration of whether the prisoner is entitled to a sentence reduction under §

3582(c).” Id. at 646 (citing United States v. Ursery, 109 F.3d 1129, 1137-38 (6th Cir.




        3
        His appeal was filed October 1, 2007, 11 days after the district court’s September 20, 2007
Judgment and Commitment Order, but 10 days after the district court’s written order of September 21, 2007,
concerning Smith’s objections to the presentence report. The government accepts the appeal as timely.
No. 07-4219                                                                                                6

1997)). 4 In Poole, however, there is no indication that the district court considered the

upcoming amendments in fashioning a sentence.

        The government requests that we simply affirm the district court without remand, for

the reason that the defendant has already received the benefit that the retroactive amendment

contemplates. We agree with this position. Whether or not it was proper for the district court

to consider the upcoming amendments in the way that it did, the amendments took effect.

We also note that the district court was sentencing this defendant for the third time, and that

it thoroughly applied the 18 U.S.C. § 3553(a) sentencing factors. The district court’s

previous sentence of 180 months’ imprisonment was consistent with the range that would

have resulted from application of the later-enacted amendments, and it is clear that the

district court was taking the upcoming amendments into consideration to lend finality to its

third pronouncement of sentence for this defendant. Because the record indicates that the

district court would not alter its sentence if it were to revisit this issue, we decline to remand

for resentencing.

        AFFIRMED.




        4
         Smith also cites to United States v. McPhearson, 303 F. App’x 310 (6th Cir. 2008), for this
proposition, and the distinguishable Second Circuit case of United States v. Keller, 539 F.3d 97 (2d Cir.
2008), where the matter was remanded to the district court for resentencing, because the record gave no
indication of whether the district court understood the extent of its discretion to vary from the guidelines.
