                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                     File Name: 08a0476n.06

                                      Filed: August 8, 2008

                                           No. 07-1251

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,           )
                                    )
      Plaintiff-Appellee,           )                         ON APPEAL FROM THE
                                    )                         UNITED STATES DISTRICT
v.                                  )                         COURT FOR THE WESTERN
                                    )                         DISTRICT OF MICHIGAN
MARCUS TARRELL SYLVESTER,           )
                                    )                         OPINION
      Defendant-Appellant.          )
____________________________________)


Before: MARTIN and NORRIS, Circuit Judges, and STAMP, Senior District Judge.*

       FREDERICK P. STAMP, JR., Senior District Judge. Marcus Tarrell Sylvester (“Sylvester”)

pleaded guilty in the United States District Court for the Western District of Michigan to being a

convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Sylvester filed a

sentencing memorandum in which he argued for an unspecified downward departure from the

applicable sentencing range set forth in the United States Sentencing Commission advisory

guidelines. In that memorandum, Sylvester stated that he had no objections to the Presentence

Investigation Report (“PIR”) and that he agreed that the applicable advisory sentence under the

guidelines provided for a range of fifty-seven (57) to seventy-one (71) months. The district judge

       *
        The Honorable Frederick P. Stamp, Jr., United States District Judge for the Northern District
of West Virginia sitting by designation.
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                                                                                                 07-1251

sentenced Sylvester to a term of imprisonment of sixty (60) months, to be followed by three (3) years

of supervised release. On appeal, Sylvester challenges his sentence on grounds of procedural and

substantive reasonableness. For the reasons that follow, the sentence imposed by the district court

is AFFIRMED.

                                        I. BACKGROUND

       In 2003, Sylvester pleaded guilty to three offenses in two separate state criminal actions in

the Seventeenth Circuit Court, Grand Rapids, Michigan.1 On December 16, 2003, the state court

sentenced Sylvester to three years of probation on all three offenses.

       While Sylvester was on probation, state authorities executed a search warrant on his

residence on December 2, 2004, after he had failed to report to his probation officer as required by

the conditions of his probation. During the search, law enforcement officials discovered Sylvester

hiding under a pile of clothes in a basement bedroom. They also discovered an unloaded .32 caliber

Smith and Wesson handgun and a box of .32 caliber ammunition, as well as a scale, and a razor

blade with white residue.

       At that time, Sylvester was taken back into state custody. The state court revoked Sylvester’s

probation for failing to report to his probation officer and for possessing a firearm, and sentenced

Sylvester to eighteen (18) months to twenty (20) years of imprisonment. Sylvester was paroled from

state custody on June 13, 2005. Some time during the latter part of November 2006, Sylvester was



       1
        In one of the cases, Sylvester pleaded guilty to delivery of a controlled substance, and in the
other, he pleaded guilty to one count of domestic violence and one count of second degree home
invasion.

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once again taken into state custody for parole violations, which included failure to comply with

substance abuse treatment requirements.

       Meanwhile, during the early part of 2005, the United States Department of Justice Bureau

of Alcohol, Tobacco and Firearms (“ATF”) had completed a federal investigation into Sylvester’s

firearm possession. Based upon the results of its investigation, the ATF recommended to the United

States Attorney’s Office that the firearm offense be prosecuted. Federal authorities secured an

indictment against Sylvester on August 29, 2006--approximately eighteen months after the ATF

recommended prosecution, and more than one year after Sylvester was paroled by the state court

after his probation had been revoked for possession of a firearm.2

       On December 6, 2006, Sylvester pleaded guilty in the United States District Court for the

Western District of Michigan to being a convicted felon in possession of a firearm in violation of

18 U.S.C. § 922(g)(1). He was released on bond until his sentencing. On December 11, 2006,

during the presentence interview with his probation officer, Sylvester was subjected to a random

drug test, which preliminarily tested positive for marijuana use. Despite Sylvester’s strenuous

denials and his insistence that the drug screen had yielded a false positive, a laboratory report

confirmed that he had used marijuana. Sylvester was then rearrested for violating the terms of his




       2
        The ATF’s report recommending prosecution is undated. The precise date upon which the
matter was forwarded to the U.S. Attorney’s Office is therefore uncertain. An ATF report dated
March 30, 2005 referring to a firearm identification correction from the ATF’s Report of
Investigation dated February 28, 2005 suggests that the recommendation for prosecution was
probably forwarded some time in March or April 2005.

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bond. Subsequently, the United States District Court for the Western District of Michigan sentenced

Sylvester to a sixty-month term of imprisonment and a three-year period of supervised release.

                                            II. ANALYSIS

        On appeal, Sylvester argues that his sentence is both procedurally and substantively

unreasonable. When reviewing a sentence for reasonableness, an appellate court must engage in a

two-step analysis: it must first determine whether the sentencing court committed any significant

procedural error;3 and, if the sentence imposed is found procedurally sound, the appellate court must

then evaluate the substantive reasonableness of the sentence. Gall v. United States, 128 S. Ct. 586,

597 (2007).

        A.      Procedural Reasonableness

        The standard of review for a procedural reasonableness challenge to a sentence depends upon

whether the challenging party objected in the lower court proceedings on the ground of procedural

reasonableness. If the challenging party did so object, this Court reviews under an abuse-of-

discretion standard. United States v. Jones, 445 F.3d 865, 869 (6th Cir. 2006); United States v.

Richardson, 437 F.3d 550, 553 (6th Cir. 2006). In this Circuit, district courts are advised to ask the

parties whether they have any objections, not previously raised, to the court’s proposed sentence.

United States v. Bostic, 371 F.3d 865 (6th Cir. 2004). If the challenging party has been afforded the




        3
         A district court’s failure to consider the factors set forth at 18 U.S.C. § 3553(a), for example,
or to adequately explain the reasons for the sentence imposed constitutes significant procedural error.
Gall v. United States, 128 S. Ct. 586, 597 (2007).

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opportunity to object to the court’s reasons for selecting the sentence imposed and has failed to do

so, this Court reviews for plain error. United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008).4

        In the case at bar, the district court provided the requisite opportunity to object. JA 118-119.

Sylvester failed to object on procedural reasonableness–or any other–grounds. Consequently, plain

error is the appropriate standard of review for Sylvester’s appellate challenge to the procedural

reasonableness of his sentence.

        Plain error requires a defendant to show (1) the court made an error (2) which “was obvious

or clear,” (3) which “affected defendant’s substantial rights,” and (4) which “affected the fairness,

integrity, or public reputation of the judicial proceedings.” United States v. Gardiner, 463 F.3d 445,

459 (6th Cir. 2006). Only exceptional circumstances warrant a finding of plain error. Id. Under this

standard, a district court ruling will be vacated only “where the error is so plain that the trial judge

. . . [was] derelict in countenancing it.” Id.

        Here, Sylvester argues that when the district court imposed his sentence, it did not adequately

take into account the mitigating factors that Sylvester presented for the court’s consideration.

Specifically, Sylvester contends that the district judge failed to engage in any analysis or state any

reasons for rejecting Sylvester’s arguments that the government’s delay in bringing charges and the

time served in state custody were mitigating factors warranting a downward departure in Sylvester’s

sentence. These contentions lack merit.



        4
         Although Vonner was decided after Sylvester was sentenced, its holding should still apply
in this case because a plain error standard of review was applied to the Vonner defendant, whose
sentence had likewise been imposed before this Court’s ruling in Vonner.

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       The sentencing statute at 18 U.S.C. § 3553(c) requires a district court to state its reasons for

imposing a particular sentence, but no statutory provision obligates a sentencing court to articulate

its reasons for rejecting each argument a party advances for an alternative sentence. 18 U.S.C.

§ 3553(c); Vonner, 516 F.3d at 387. Nor does the case law of this Circuit impose any such

obligation. United States v. Smith, 510 F.3d 603, 608 (6th Cir. 2007) (“[A] district court need not

explain its reasons for rejecting each argument made by a defendant.”). Nevertheless, the United

States Supreme Court decision in United States v. Rita, 127 S. Ct. 2456, 2469 (2007), suggests that

the record should demonstrate that the sentencing judge has considered each argument presented by

a party and the evidence offered in support thereof. Thus, for a sentence to survive a procedural

reasonableness challenge under plain error review, the record and the context must demonstrate that

the judge listened to, understood, and considered each argument, taking each into account when

determining the defendant’s sentence. Vonner, 516 F.3d at 387 (citing Rita, 127 S. Ct. at 2469).

       In this case, Sylvester’s sentencing memorandum listed three factors in support of an

unspecified downward departure from the applicable guideline range. Sylvester argues on appeal

that the district judge failed to consider two of them: (1) the delay by the government in prosecuting

him; and (2) the time he had already served in state custody after his state probation was revoked

for, in part, the same conduct that prompted the federal indictment. The sentencing judge directly

addressed neither of these factors. Thus, this Court must determine whether the sentencing judge

listened to, understood, and considered the delay in federal prosecution of the firearm offense, and

the time the defendant spent in state custody after his probation was revoked for, in part, possessing

a firearm.

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               1.      Delay in Prosecution

       The record indicates that the sentencing judge considered--and rejected--the delay in

prosecution as a mitigating factor. At the sentencing hearing, the judge acknowledged receipt of the

defendant’s “rather extensive” sentencing memorandum. JA 107. Defense counsel began his

argument by stating that the most important aspect of the case was the two-year delay between the

commission of the crime and Sylvester’s sentencing. JA 108. When the judge interjected, inquiring

whether that circumstance was the most important factor, defense counsel answered in the negative.

JA 108-109. After presenting the factor that he considered most important (i.e., that Sylvester had

undergone significant change since the time the offense occurred), defense counsel returned to his

argument that the delay in prosecution should be considered as a mitigating factor. JA 112. The

judge observed that the defendant had not filed a motion to dismiss on this basis, and asked whether

any legal grounds supported the defendant’s argument. Defense counsel answered: “It’s just a fact

that we would ask that you would consider.” Id.

       When he pronounced Sylvester’s sentence, the district judge stated that he had considered

the sentencing guidelines as one factor for determining a sentence that was sufficient, but not greater

than necessary, to comply with the purposes of § 3553(a). JA 116. He concluded that the nature and

circumstances of the underlying offense, the defendant’s previous contacts with law enforcement,

and the defendant’s status a felon made the offense a serious one. Id. The judge indirectly

acknowledged the delay in initiating prosecution when he stated that Sylvester’s “having a weapon

and drug paraphernalia in a house some couple of years before having parole revoked” informed his




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understanding of the nature and circumstances of the underlying offense.5 Id. In light of the

exchanges between the judge and Sylvester’s counsel during the sentencing hearing, and the judge’s

explicit acknowledgment of the time that had elapsed between the conduct giving rise to the federal

charge and the defendant’s sentencing, this Court finds no plain error in the district judge’s process

as it concerns the defendant’s delay in prosecution argument.

               2.      Time Spent in State Custody for Same Conduct

       Sylvester’s second contention concerning the procedural reasonableness of his sentence is

that the district judge failed to consider the time Sylvester had spent in state custody for the same

conduct. This arguments also lacks merit. As with Sylvester’s pre-indictment delay argument, the

judge offered no specific analysis of the defendant’s state custody argument. During the sentencing

hearing, however, defense counsel, in response to the district judge’s expressed concerns about

Sylvester’s positive drug test on December 11, 2006, described Sylvester’s state of mind upon

learning that the firearm offense was a separate crime under federal law and that the time Sylvester

had spent in state custody could be supplemented by a separate prosecution, conviction, and sentence

in the federal court system. JA 109-110. In other words, Sylvester presented this factor for the

judge’s consideration in the context of an effort to explain the circumstances surrounding the

defendant’s recent drug use, and it is in that context that the judge considered the argument.



       5
        The judge seems to have misstated the reference points of the delay, commenting that the
conduct occurred a “couple of years” before the revocation of the defendant’s parole rather than
several months before the federal government brought charges. However, this misstatement should
not affect the analysis of whether the district court considered the time lapse and rejected it as
mitigating factor warranting leniency.

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                                                                                                07-1251

       Of primary importance among the judge’s reasons for imposing a sixty-month sentence was

Sylvester’s positive drug test while on bond and Sylvester’s vehement denial, which the court

considered “especially egregious.”     JA 116.       The court emphasized Sylvester’s “persistent

association with drugs” and recommended as part of his sentence that Sylvester receive intensive

substance abuse treatment during his incarceration. JA 117. In addition, the judge gave the

following reasons for the sentence: the need to provide just punishment and an adequate deterrence

to criminal activity; the need to protect the public; and the duty to provide the defendant with

medical, educational, and correctional treatment. As to this last factor, the judge recommended that

Sylvester be afforded opportunities for vocational training during his term of imprisonment. Given

the context in which the judge considered Sylvester’s argument concerning time already spent in

state custody and the counterbalancing weight the judge attached to the other sentencing factors, the

district court committed no plain error.

       B.       Substantive Reasonableness

       Having determined that the sentence imposed meets the standards for procedural

reasonableness, this Court now turns to Sylvester’s assertions that his sentence is substantively

unreasonable.     An abuse-of-discretion standard applies to challenges to the substantive

reasonableness of a sentence.      Gall, 128 S. Ct. at 597.      Unlike challenges to procedural

reasonableness, however, a party need not object below to the reasonableness of the length of a

sentence. Vonner, 516 F.3d at 389. Consequently, even if a defendant fails to object at sentencing

to the length of the sentence of imposed, the standard of review is for abuse of discretion. Id.

Furthermore, where, as here, a sentence falls within a properly calculated range under the Sentencing

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Guidelines, a rebuttable presumption of reasonableness attaches. United States v. Williams, 436 F.3d

706, 708 (6th Cir. 2006). Because Sylvester’s sentence falls within the advisory guideline range, this

Court reviews his sentence under an abuse-of-discretion standard and applies a rebuttable

presumption of reasonableness.

       A sentence is substantively reasonable if it is “sufficient, but not greater than necessary,” to

advance the purposes of the federal sentencing statute at 18 U.S.C. § 3553(a)(2). Thus, Sylvester

must show that the length of his sentence is sufficient, but not greater than necessary, to promote the

following goals:

       (A)     to reflect the seriousness of the offense, to promote respect for the law, and
               to provide just punishment for the offense;
       (B)     to afford adequate deterrence to criminal conduct;
       (C)     to protect the public from further crimes of the defendant; and
       (D)     to provide the defendant with needed educational or vocational training,
               medical care, or other corrective treatment in the most effective manner.

18 U.S.C. § 3553(a)(2).

       A sentence may be substantively unreasonable where the sentencing judge has selected the

sentence arbitrarily; has relied upon on impermissible factors; has failed to consider the factors

enumerated in § 3553(a); or has assigned unreasonable weight to any relevant factor. United States

v. Webb, 403 F.3d 373, 385 (6th Cir. 2005).

       Sylvester’s appellate challenge to the substantive reasonableness of his sentence consists of

further reference to the mitigating factors above and an argument that the sentence is unnecessarily

long to achieve the desired deterrent effect, particularly given the time Sylvester has already spent

in state custody. Because Sylvester was sentenced to a term within the applicable guideline range,


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which he has conceded was correctly calculated, he must rebut the presumption of reasonableness

which attaches to a within-guidelines sentence. Williams, 436 F.3d at 708. This he has failed to do.

       According to Sylvester, his sentence is substantively unreasonable because, in part, the

district court failed to consider that the federal government waited to indict him until more than one

year after he completed his state sentence for the same conduct and approximately eighteen months

after the ATF recommended prosecution. On appeal, Sylvester argues that he suffered prejudice as

a result of this delay because a “possibility” existed “that [his] sentence might have been reduced by

as much as eighteen months . . . had the district court considered the arguments raised in mitigation

. . . .” Pl.’s Final Reply Br. 4. The mere possibility that Sylvester’s sentence might have been

reduced fails to rebut the presumption of reasonableness accorded to a within guidelines sentence,

particularly because, as discussed above, the sentencing judge considered the effect of the delay in

his sentencing determination and found other relevant factors more compelling.

       The second reason Sylvester advances in his challenge to the substantive reasonableness of

his sentence is the punishment he received in state court for the underlying conduct giving rise to his

federal conviction. Sylvester seems to be arguing that the district court should have granted him

credit for time served in state custody. However, only the Attorney General and the Bureau of

Prisons have the power to grant credit for time served. United States v. Wilson, 503 U.S. 329, 333

(1992) (construing 18 U.S.C. § 3585(b)); United States v. Crozier, 259 F.3d 503 (6th Cir. 2001).

A district court judge who imposes a sentence without considering time served as a mitigating factor

properly refrains from granting credit for time served. Accordingly, Sylvester has failed to show that

his sentence is substantively infirm on this basis.

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        Finally, Sylvester contends that a sentence well below sixty (60) months would provide

adequate deterrence to his future criminal conduct, especially because he has already been

incarcerated in the state system for the same conduct that resulted in the federal charge. Sylvester

offers no support for this bare assertion, and, in light of his repeated violations of the conditions of

his state offense probation, his state offense parole, and his federal offense presentence release bond,

this contention is unpersuasive.

        In sum, Sylvester has failed to demonstrate that the sentencing judge imposed an arbitrary

sentence, based the sentence on impermissible factors, failed to consider pertinent statutory factors

under § 3553(a), or accorded unreasonable weight to any relevant factor. Sylvester has therefore

failed to rebut the presumption that his within-guidelines sentence is substantively reasonable.

Consequently, his challenge before this Court to the substantive reasonableness of his sentence is

without merit.

                                         III. CONCLUSION

        For the foregoing reasons, the sentence imposed by the district court is AFFIRMED.




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