                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0699n.06

                                            No. 08-6484
                                                                                         FILED
                           UNITED STATES COURT OF APPEALS                             Nov 12, 2010
                                FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk
UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                     ON APPEAL FROM THE UNITED
                                                       STATES DISTRICT COURT FOR THE
DUANE FREDERICK ASHER,                                 EASTERN DISTRICT OF KENTUCKY

       Defendant-Appellant.

                                                /



BEFORE:        MARTIN, COLE, and CLAY, Circuit Judges.

       PER CURIAM. Defendant Duane Frederick Asher, who pleaded guilty to conspiracy to

distribute 100 or more kilograms of marijuana in violation of 21 U.S.C. §§ 846 and 851, appeals his

80 month sentence of incarceration, entered by the U.S. District Court for the Eastern District of

Kentucky, on substantive and procedural reasonableness grounds. Defendant alleges that the district

court erred by (1) relying on impermissible considerations when determining whether he was entitled

to a downward departure for substantial assistance; (2) failing to calculate the applicable guidelines

range before determining his sentence; (3) failing to consider his non-frivolous claims in support of

a shorter sentence; and (4) failing to adequately explain the rationale for its chosen sentence. For

the following reasons, we AFFIRM the district court's decision.
                                           No. 08-6484

                                        BACKGROUND

       Defendant Duane Frederick Asher was arrested on November 2, 2007, on drug conspiracy

charges following a five month investigation by the Drug Enforcement Administration. With

assistance of counsel, Defendant pleaded guilty to one count of conspiracy to distribute 100

kilograms or more of marijuana in violation of 21 U.S.C. §§ 841(a)(1), 846, an offense which carries

a mandatory minimum sentence of 120 months in instances where a defendant has a prior felony

drug conviction. 21 U.S.C. § 841(b)(1)(B). Defendant was subject to this enhancement because

timely notice was provided of a 1994 conviction for conspiracy to distribute marijuana pursuant to

21 U.S.C. § 851. Under the terms of his plea agreement, Defendant consented to the forfeiture of

all property and proceeds related to his criminal enterprise under 21 U.S.C. § 853. In addition,

Defendant waived his right to appeal his guilty plea and conviction, but expressly retained the right

to appeal his sentence.

       On December 1, 2008, Defendant was sentenced by the district court to an 80 month term

of incarceration, representing a 33 percent downward departure from the statutory minimum

sentence. The district court based its downward departure on a § 5K.1.1 motion submitted by the

government under seal, describing Defendant's substantial assistance to federal investigators.

However, the court declined to grant Defendant an additional departure pursuant to 18 U.S.C. §

3553(a)(1) based on characteristics such as his childhood background, service to the community, and

family hardships.

       At the conclusion of Defendant's sentencing hearing, the district court provided both parties

an opportunity to object to aspects of the proceedings or sentence imposed, consistent with United


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States v. Bostic, 371 F.3d 865 (6th Cir. 2004). Neither party raised objections at that time. Final

judgment against Defendant was entered on December 1, 2008, and on December 9, 2008, Defendant

filed this timely appeal.

                                              DISCUSSION

I.      The Sentence’s Procedural Reasonableness

        A.      Standard of Review

        Where, as here, a defendant fails to raise or otherwise preserve procedural objections to a

sentence before the district court, appellate review is limited to plain error. Bostic, 371 F.3d at

871–73; see also United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008); United States v.

Herrera-Zuniga, 571 F.3d 568, 580–81 (6th Cir. 2009).1 Under plain error, a defendant must

establish (1) error; (2) that is obvious or clear; (3) affecting his substantial rights as well as (4) the

fairness, integrity, or public reputation of his judicial proceedings. See generally United States v.

Wilson, 614 F.3d 219, 223 (6th Cir. 2010); United States v. Davis, 397 F.3d 340, 346 (6th Cir.

2005); Vonner, 516 F.3d at 386. While steep, this burden is not insurmountable. See, e.g., Wilson,

614 F.3d at 223 (reversing sentence on plain error).

        B.      Analysis




        1
         Pursuant to Bostic, plain error generally applies to procedural errors that were not raised “prior to
and during the sentencing hearing,” United States v. Blackie, 548 F.3d 395, 398 (6th Cir. 2008), yet which
could have been corrected “on the spot.” Herrera-Zuniga, 571 F.3d at 581 n.7.


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                                            No. 08-6484

       A sentence is procedurally unreasonable if it fails to calculate or improperly calculates the

sentencing guidelines range; treats the guidelines as mandatory; fails to consider pertinent § 3553(a)

factors; bases the sentence on clearly erroneous facts; or fails to adequately explain the sentence

imposed. See United States v. Bolds, 511 F.3d 568, 579 (6th Cir. 2007) (citing Gall v. United States,

552 U.S. 38, 51 (2007)). A sentence will also be considered procedurally unreasonable if the district

court fails to address a defendant's non-frivolous arguments in support of a lower sentence. See

United States v. Wallace, 597 F .3d 794, 803 (6th Cir. 2010).

       Defendant in the instant case alleges that the district court (1) failed to calculate the

applicable guidelines range when determining his sentence; (2) failed to address his non-frivolous

arguments for a downward departure; and (3) failed to explain adequately the rationale for the

sentence imposed. We consider each argument in turn.

               1.       Failure to calculate the applicable guidelines range

       Defendant argues that the district court failed to calculate his applicable guidelines range;

however, we find this argument is without merit. During the sentencing hearing, the district court

explicitly stated that the applicable guidelines sentence was the statutory minimum sentence

applicable in this case and thoroughly explained the basis for its conclusion. Because the sentencing

guideline ranges were explicitly calculated by the district court, no procedural error occurred.

               2.      Failure to address or consider Defendant’s non-frivolous arguments in
                       support of a shorter sentence

       Defendant next argues that the district court erred by failing to consider his non-frivolous

arguments in support of a shorter sentence. However, because Defendant sought leniency based on



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his family background and characteristics in a case where a statutory minimum sentence applied,2

the district court properly denied his motion. When a defendant is subject to a statutory minimum

sentence, the ordinary mitigating factors of § 3553(a)(1) do not permit downward departure. See

United States v. Cecil, 615 F.3d 678, 695 (6th Cir. 2010) (“[A] district court's wish to impose a

sentence beneath the mandatory minimum cannot be effectuated through resort to § 3553(a)”); see

also United States v. Hameed, 614 F.3d 259, 270 (6th Cir. 2010). Rather, courts may not depart

below a mandatory minimum sentence “unless the government moves for such a departure under

either 18 U.S.C. §§ 3553(e) or 3553(f)).” United States v. McIntosh, 484 F.3d 832, 835 (6th Cir.

2007).

         Although statutory minimum sentences interfere with a district court's ability to exercise

discretion and consider § 3553(a) mitigation factors, their constitutionality has been upheld and is

not contested in the present action. See United States v. Wettstain, 618 F.3d 577, 591–92 (6th Cir.

2010) (“[I]t is well-settled that mandatory minimum sentences, which limit a sentencing court's

discretion with regard to § 3553(a) factors, are constitutional.”) (internal quotations omitted).

Therefore, the court properly denied Defendant's motion as lacking merit.

                3.      Failure to explain the rationale for the sentence imposed

         Sentencing judges are required to “make an individualized assessment based on the facts

presented, and must discuss all relevant statutory factors to facilitate reasonable appellate review.”



         2
          Defendant was subject to a mandatory minimum sentence here because, as this Court has held,
“where a statutorily required minimum sentence is greater than the maximum of the applicable guidelines
range, the statutorily required minimum sentence shall be the guideline sentence.” United States v. Johnson,
564 F.3d 419, 423 (6th Cir. 2009) (citing U.S.S.G. § 5G1.1(b)).

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United States v. Simmons, 587 F.3d 348, 358 (6th Cir. 2009) (citing Gall, 552 U.S. at 50) (internal

quotations omitted). In addition, a sentencing court “must articulate its reason for choosing a

particular sentence, and it must specifically address any argument raised by the defendant at

sentencing.” United States v. Caver, 470 F.3d 220, 248 (6th Cir. 2006). Failure to do so may render

a sentence procedurally unreasonable, even where a court's omission only concerns the basis for its

chosen departure. See United States v. Christman, 607 F.3d 1110 (6th Cir. 2010) (Reversing

below-guidelines sentence as an abuse of discretion because court failed to provide sufficient

explanation).

       In the instant case, the district court properly discussed and considered the § 3553(a) factors,

unrelated to mitigation, which influenced its choice of sentence, including the need for the sentence

imposed; its promotion of deterrence; the extent to which it protected the public; how the sentence

compared to those of others found guilty of similar conduct; and the manner in which it addressed

Defendant's need for drug counseling. The court also expressed its opinion that an “80 month

sentence would be sufficient but not greater than necessary to achieve the purposes of § 3553(a)(2).”

(Sentencing Hr’g at 34).

       The sentencing judge also spoke briefly about its decision to grant a downward departure

from the mandatory minimum sentence, noting: “I do believe that based upon the information that

was provided to the Court in chambers that a reduction of 33 percent from the sentence based upon

activities to date would be an appropriate reduction.” (Sentencing Hr’g at 34 ). While this discussion

was brief, it was consistent with the instruction provided by § 3553(c)(2) concerning motions to

depart made under seal or in chambers. In pertinent part, § 3553(c)(2) states: “In the event that the


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                                           No. 08-6484

court relies upon statements received in camera in accordance with Federal Rule of Criminal

Procedure 32 the court shall state that such statements were so received and that it relied upon the

content of such statements.” 18 U.S.C. § 3553(c)(2).

       Mindful of the fact that § 3553(c)(2) relaxes the requirement that a district court’s reasons

be provided in open court, we cannot conclude that the district court committed plain error with

respect to its explanation for the sentence, or that its explanation was so patently inadequate as to

compromise Defendant’s right to “meaningful appellate review.” Blackie, 548 F.3d at 403; see also

Wallace, 597 F.3d at 807.

       Although the court’s public statement of reasons was brief, the court provided a lengthier

explanation in chambers— noting that, in granting a § 3553(e) petition for downward departure, it

would be considering information relating to Defendant’s cooperation such as the usefulness,

timeliness and significance of the information provided, and whether or not Defendant’s assistance

had placed his family in danger. The only issue not fully addressed by the sentencing court was how

these different factors ultimately weighed into its determination as to the appropriate level of

departure, or why it had not selected a higher overall departure range. However, these issues do not

implicate the right to meaningful appellate review because the extent of a court’s downward

departure is not reviewable. Rather, as this Court has held, “[w]hen the district court grants a

downward departure for substantial assistance and the defendant’s claim on appeal goes only to the

extent of the departure, this Court has no jurisdiction over the appeal.” United States v. Curry, 536

F.3d. 571, 573 (6th Cir. 2008) (citing United States v. Jones, 417 F.3d 547, 551 (6th Cir. 2005)).

Therefore, the district court did not commit clear error.


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       Because the district court properly calculated the guidelines range; properly determined that

Defendant’s arguments for leniency were frivolous in light of the applicable statutory minimum

sentence; and adequately explained the basis of its chosen sentence given § 3553(c)(2)’s relaxed

requirements regarding a public statement of reasons, we find that Defendant’s sentence was

procedurally reasonable.

II.    The Sentence’s Substantive Reasonableness

       Once a sentencing decision is found to be procedurally sound, courts consider the substantive

reasonableness of the sentence under an abuse-of-discretion standard. United States v. Penson, 526

F.3d 331, 337 (6th Cir. 2008). The substantive reasonableness inquiry turns primarily on “whether

the length of the sentence is reasonable in light of the § 3553(a) factors.” United States v. Tate, 516

F.3d 459, 469 (6th Cir. 2008). Courts will also consider whether the district court selected the

sentence arbitrarily; based the sentence on impermissible factors; failed to consider pertinent §

3553(a) factors; or gave an unreasonable amount of weight to any pertinent factor. United States v.

Benson, 591 F.3d 491, 500 (6th Cir. 2010).

       In the instant case, Defendant claims that the district court impermissibly considered the

nature of his offense when determining what, if any, departure he was entitled to under 21 U.S.C.

§ 3553(e). As this Court has held, “only factors relating to a defendant’s cooperation may influence

the extent of a departure pursuant to § 3553(e).” United States v. Bullard, 390 F.3d 413, 416 (6th

Cir. 2004) (improper to consider a defendant’s history or circumstances during § 3553(e) motion);

see also United States v. Hameed, 614 F.3d 259 (6th Cir. 2010) (improper to consider sentencing

guidelines reform); United States v. Ridge, 329 F.3d 535, 542 (6th Cir. 2003) (improper to consider


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the possibility of a subsequent departure); United States v. Snelling, 961 F.2d 93, 97 (6th Cir. 1991)

(“departure[s] must be based solely upon the ‘substantial assistance’ rendered by the defendant”)

(internal citations omitted). However, a review of the sealed sentencing transcript reveals that the

district court selected its downward departure based solely upon the extent of Defendant’s

cooperation. Therefore, Defendant’s sentence is substantively reasonable and no abuse of discretion

occurred in this case.

                                          CONCLUSION

       Because we conclude that Defendant’s sentence was substantively and procedurally

reasonable, we AFFIRM the sentence imposed by the district court.




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