                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0505n.06
                             Filed: July 19, 2006

                                            No. 05-6630

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )       ON APPEAL FROM THE
       Plaintiff-Appellee,                                )       UNITED STATES DISTRICT
                                                          )       COURT FOR THE WESTERN
               v.                                         )       DISTRICT OF TENNESSEE
                                                          )
MARECO CARAWAY,                                           )
                                                          )
      Defendant-Appellant.                                )
__________________________________________



BEFORE: SUHRHEINRICH and GRIFFIN, Circuit Judges, and SPIEGEL, District Judge.*

       PER CURIAM.

       A federal jury convicted Mareco Caraway of being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g), and the district court sentenced him to 302 months in prison and

three years of supervised release. Caraway appealed, and this court affirmed his conviction but

remanded for resentencing in light of United States v. Booker, 543 U.S. 220 (2005). United States

v. Caraway, 411 F.3d 679 (6th Cir. 2005).

       After holding a new sentencing hearing, the district court again imposed a sentence of 302

months in prison and three years of supervised release. This compared to a statutory minimum of

180 months and a Guidelines range of 262-327 months. Caraway appeals, contending that his


       *
        The Honorable S. Arthur Spiegel, Senior United States District Judge, United States District
Court for the Southern District of Ohio, sitting by designation.
No. 05-6630
United States v. Caraway


sentence is unreasonable under Booker review. He also contends that a jury should have determined

whether his prior convictions were for violent crimes as required for sentence enhancement under

the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”).

        We affirm.

                                                   I.

        In Booker, the United States Supreme Court held that the Sixth Amendment requires that the

U.S. Sentencing Guidelines be treated as advisory, not mandatory. Under Booker, we subject

sentences to reasonableness review, United States v. Williams, 432 F.3d 621, 622 (6th Cir. 2005),

which has substantive and procedural components, United States v. Jones, 445 F.3d 865, 869 (6th

Cir. 2006) (citation omitted). We consider the length of the sentence (substantive reasonableness),

as well as “‘the factors evaluated and the procedures employed by the district court in reaching its

sentencing determination [procedural reasonableness].’” Id. (quoting United States v. Webb, 403

F.3d 373, 383 (6th Cir. 2005), cert. denied, – U.S. –, 126 S. Ct. 1110 (2006)).

        In order for this court to meaningfully review a sentence for reasonableness, the district court

must adequately explain its reasons for imposing the sentence. Jones, 445 F.3d at 869. The district

court must (1) acknowledge the applicable Guideline range; (2) discuss the reasonableness of a

variation from that range; (3) consider the advisory provisions of the Guidelines; and (4) consider

the other factors set forth in 18 U.S.C. § 3553(a). Williams, 432 F.3d at 622-23; see United States

v. Coffee, 434 F.3d 887, 898 (6th Cir.) (“‘District courts . . . must . . . calculate the Guideline range

as they would have done prior to Booker, but then sentence defendants by taking into account all of



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United States v. Caraway


the relevant factors of 18 U.S.C. § 3553, as well as the Guidelines range.’”) (quoting United States

v. Stone, 432 F.3d 651, 654-55 (6th Cir. 2005)), cert. denied, – U.S. –, 126 S. Ct. 2313 (2006).

       Title 18 U.S.C. § 3553(a), Factors to Be Considered in Imposing a Sentence, provides,

       The court, in determining the particular sentence to be imposed, shall consider –

       (1)     the nature and circumstances of the offense and the history and
               characteristics of the defendant;

       (2)     the need for the sentence imposed –

       (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 correctional treatment in the most effective manner;

       (3)     the kinds of sentences available;

       (4)     the kinds of sentence and the sentencing range established for –

       (A)     the applicable category of offense committed by the applicable category of
               defendant as set forth in the guidelines –
       ( ¥)    issued by the Sentencing Commission . . . ; and
       (ii)    that . . . are in effect on the date the defendant is sentenced; . . . .

       (5)     any pertinent policy statement –

       ( ¥)    issued by the Sentencing Commission . . . ; and
       (ii)    that . . . is in effect on the date the defendant is sentenced.

       (6)     the need to avoid unwarranted sentence disparities among defendants with
               similar records who have been found guilty of similar conduct;

       (7)     the need to provide restitution to any victims of the offense.




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“The court need not recite these factors but must articulate its reasoning in deciding to impose a

sentence in order to allow for reasonable appellate review.” United States v. Kirby, 418 F.3d 621,

626 (6th Cir. 2005).

       For a defendant with Caraway’s offense level (34) and criminal history category (VI), the

Guidelines suggested 262-327 months in prison followed by three to five years of supervised

release; the district court sentenced Caraway to 302 months in prison followed by three years of

supervised release. A properly calculated sentence within the Guidelines range is accorded a

rebuttable presumption of reasonableness. United States v. Buchanan, 449 F.3d 731, 734 (6th Cir.

2006). As discussed below, Caraway alleges only one error in the district court’s calculation of his

offense level – determining for itself whether his prior convictions were for crimes of violence,

rather than submitting that issue to the jury – and his argument lacks merit. Caraway does not allege

any error in the calculation of his criminal history score. Therefore, the district court properly

calculated Caraway’s guidelines range, and the sentence imposed within that range is rebuttably

presumed to be reasonable. Caraway has not rebutted that presumption.

       At sentencing, the district court noted the guidelines range and “provided sufficient

indication of its consideration of the factors listed in 18 U.S.C. § 3553(a) to give this court a

sufficient basis to review the sentence for unreasonableness.” United States v. Ward, 447 F.3d 869,

871-72 (6th Cir. 2006). The district court recited applicable § 3553(a) factors and explained its

reasoning for each:

       The first inquiry is what about the offense?



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       What were the nature and circumstances of the offense, how serious was it? [§
       3553(a)(1) and (a)(2)(A)]

       The possession of a firearm by a felon is a serious offense in itself. This was more
       serious than that. The testimony at the trial was that this defendant fled from law
       enforcement officers, that he had a pistol, that he could not fire the pistol, but that the
       officer who pursued the defendant at some personal risk found the defendant
       crouching behind a shed, pointed his pistol. The officer had to simply come around
       the other way. To use a pistol in that way and that [then] the fact that there’s an
       official victim are very serious, when you compound the original seriousness of the
       offense.

       A case like this is especially serious when someone easily could have been hurt here,
       Mr. Caraway could have been hurt, but [by] that I mean could have been shot, killed
       or wounded, and so could one or more of the police officers who were involved, a
       risk to them in the court’s view given the circumstances of this offense and given the
       defendant’s criminal history were substantial.

       The court needs to also consider the history and characteristics of this defendant,
       particularly in light of the need for deterrence.

       Obviously there has to be the need to deter others from criminal conduct is strong in
       this case, not only a deterrent for possessing firearms when they’re guilty of prior
       felony convictions, but to deter others from using firearms and from attempting to
       evade the police or at least trying to perform their duty.

       Let’s look at this defendant and his situation.

       He has substantial criminal history, a long criminal history, it began at the age of 14.
       That history amounts to 27 points, and 13 points or more would establish a category
       of VI, the maximum category.
                                                 ***
       Trying to get behind those numbers and that category[,] one finds that the crimes fall
       into different [classifications]. There’s a span of burglary in his younger years.
       There’s a pattern of robbery, especially aggravated robbery, and there’s a pattern of
       resisting arrest is what I would call it.

       The burglaries began as a juvenile, they continue into adulthood. The robberies are
       very serious, they involve the use of firearms and threatened use of firearms.



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United States v. Caraway


       The defendant did go through a period of where [sic] he wasn’t committing crimes,
       but that period was when he was incarcerated. When he came out, he committed this
       offense, committed it within two years of his release from prison. . . . . So the record
       would indicate that the only thing that prevented the defendant from engaging in
       additional crimes was incarceration. [§ 3553(a)(2)(B)]

       Unfortunately the struggle with the police officer in this case is consistent with the
       problems that occurred in August 1994 . . . when the defendant broke free, struck an
       officer, caused lacerations to the officer’s face and arms and then fled on foot,
       ultimately apprehended.

       So for those reasons it’s particularly important to protect the public from further
       crimes by this defendant. And that’s what drove the sentence before and that’s a
       substantial part of what’s driving the sentence now. [§ 3553(a)(2)(C)]

       I have to consider the guidelines under [section] 3553, and I’m doing that.

       The need to avoid unwarranted sentencing disparities between this defendant and
       others with similar records that may have been found guilty of similar conduct. [§
       3553(a)(6)]

       The guidelines are the best way to do that.

       No restitution. [§ 3553(a)(7)]

       So I’m convinced that a guideline sentence in this case is a reasonable sentence.

       What sort of guideline sentence would that be?

       I sentenced the defendant before to the middle of the guideline range. [§
       3553(a)(4)(A)] It’s a substantial sentence. I recognize it’s a substantial sentence.
       But it corresponds to a serious crime, and an extraordinary serious criminal history.

       I believed then and I believe now that the sentence is necessary to protect the public.
       The criminal history is the best means I know of predicting recidivism. And I don’t
       doubt Mr. Caraway’s sincerity when he says that he doesn’t want to continue with
       crime, I don’t doubt that at all, but given his history, despite his present sincerity, I
       think it’s more likely than not that he will.

       So for these reasons . . . 302 months incarceration is a reasonable sentence.

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United States v. Caraway


        The district court did not expressly discuss § 3553(a)(5)(A), “any pertinent policy statement

. . . by the Sentencing Commission . . . in effect on the date the defendant is sentenced,” but Caraway

does not identify any policy statement that he believes the district court should have considered.

Likewise, the district court did not discuss § 3553(a)(2)(D), “the need for the sentence imposed –

to provide the defendant with needed educational or vocational training, medical care, or other

correctional treatment in the most effective manner.” Caraway, however, did not identify any issue

involving education, training, medical care, or drug treatment, either at sentencing or on appeal.

        Therefore, we have no basis to conclude that the district court’s analysis was undermined

by the fact that it did not discuss the § 3553(a)(2)(D) and (a)(5) factors. See United States v.

Williams, 436 F.3d 706, 710 (6th Cir. 2006) (“‘Although the district court may not have mentioned

all of the factors . . . explicitly, and although explicit mention of those factors may facilitate review,

this court has never required the “ritual incantation” of the factors to affirm a sentence.’”) (quoting

United States v. Johnson, 403 F.3d 813, 816 (6th Cir. 2005)).

        Caraway lodges only one specific objection to his sentence, and it is misplaced. He argues

that the court “erred when it merged two required factors under § 3553(a) when it found that the

guideline sentence was the only way to prevent unwarranted sentencing disparities.” The district

court stated not that a guidelines sentence was the “only” way to prevent unwarranted disparities,

but that it was the “best” way under the circumstances.

        Moreover, the district court’s articulated consideration of the statutory factors forecloses any

notion that it felt obligated to stay within the Guidelines range or believed that staying within that



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No. 05-6630
United States v. Caraway


range obviated its duty to consider the statutory factors. Overall, the district court adequately

explained its consideration of the § 3553(a) factors. Thus, we conclude that the sentence is

procedurally reasonable.

                                                 II.

       Next, Caraway contends that, although the Supreme Court’s decision in Apprendi v. New

Jersey, 530 U.S. 466 (2000), excepts “the fact of a prior conviction” from the general rule that

sentencing-enhancing facts must be found by a jury and proved beyond a reasonable doubt, language

in the Court’s subsequent opinion in Shepherd v. United States, 544 U.S. 13, 28 (2005) (Thomas,

J., concurring), intimates that the Court soon plans to overrule its decision in Almendarez-Torres v.

United States, 523 U.S. 224, 246 (1998).

       Because defendant failed to object to the ACCA enhancement, we review for plain error.

United States v. Hall, 411 F.3d 651, 653 (6th Cir. 2005).

       Caraway’s plain error challenge is foreclosed by our decision in United States v. Barnett, 398

F.3d 516 (6th Cir. 2005), wherein we held that “[e]xisting case law establishes that Apprendi does

not require the nature or character of prior convictions to be determined by a jury[,]” id. at 524.

Accord United States v. Beasley, 442 F.3d 386, 391 (6th Cir. 2006) (“[W]e have held that a district

court does not violate the Sixth Amendment by determining the fact and nature of a defendant’s

prior convictions and using these findings to impose an increased sentence under the Armed Career

Criminal Act.”); United States v. Poole, 407 F.3d 767, 777 (6th Cir.) (“Booker’s holding, that the

Sixth Amendment bars mandatory enhancements based on judicial fact-finding, does not apply to



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the ‘fact of a prior conviction.’”), cert. denied, – U.S. –, 126 S. Ct. 279 (2005). Additionally, we

have previously rejected a defendant’s reliance on Justice Thomas’s concurring opinion in Shepherd

for the proposition that the Supreme Court intends to overrule Almendarez-Torres. United States

v. Hill, 440 F.3d 292, 299 n.3 (6th Cir. 2006). Given that the universal weight of authority

contradicts Caraway’s position,1 we affirm his resentencing.

       Affirmed.




       1
        See, e.g., United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005) (concluding that
Almendarez-Torres “was left undisturbed by Apprendi, Blakely, and Booker”); United States v.
Garza-Lopez, 410 F.3d 268, 276 (5th Cir.) (rejecting defendant’s argument that Almendarez-Torres
was incorrectly decided and observing that Almendarez-Torres remains binding), cert. denied, – U.S.
–, 126 S. Ct. 298 (2005); United States v. Ordaz, 398 F.3d 236, 241 (3d Cir. 2005) (noting that the
decision in Almendarez-Torres still stands, despite Blakely and Booker, because “an inferior federal
court [has] the responsibility to follow directly applicable Supreme Court decisions”).

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