               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 13a0445n.06

                                           No. 09-6297                                    FILED
                                                                                      May 02, 2013
                          UNITED STATES COURT OF APPEALS                        DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
KENNETH LAMONT FERGUSON,                          )   EASTERN DISTRICT OF TENNESSEE
                                                  )
       Defendant-Appellant.                       )                   OPINION


       Before: BOGGS and STRANCH, Circuit Judges; CARR, District Judge.*

       JAMES G. CARR, District Judge. Defendant Kenneth Ferguson appeals his 200-month

sentence on procedural and substantive grounds. The defendant also claims his attorney was

constitutionally ineffective for failing to include in his argument for a downward variance a

discussion of the unfairness of the 100:1 crack/powder cocaine ratio.

       For the following reasons, we REVERSE AND REMAND for resentencing.

                                        BACKGROUND

                              A. Presentence Investigation Report

                                    1. Offenses of Conviction

       The starting point for considering the defendant’s challenge to his sentence is the Presentence

Investigation Report (“PSI”). According to the PSI, on November 25, 2008, the grand jury indicted



       *
        The Honorable James G. Carr, Senior United States District Judge for the Northern District
of Ohio, sitting by designation.
No. 09-6297
United States v. Ferguson

the defendant and a codefendant, William Vondell Hickerson, in a nine-count indictment with

conspiracy to sell and selling crack cocaine. The indictment named the defendant in Counts Six,

Seven and Nine:

       Count Six:        Sales on April 25, 2008, by Hickerson and defendant. A confidential
                         informant went twice to Hickerson’s residence. The first time he bought 1.2
                         grams of crack from Hickerson. The second time the defendant sold him .6
                         grams of crack. (PSI ¶¶ 4, 12).2

       Count Seven: Sales on April 29, 2008, by Hickerson and defendant. The CI bought 1.1
                    grams of crack from Hickerson and later .4 grams from the defendant. (¶¶ 4,
                    13).

       Count Nine:       Conspiring with Hickerson and others from December, 2007 to April, 2008
                         to distribute crack cocaine. (¶ 5). Taking into consideration the sales to a CI
                         and the sales which would have generated the funds found during execution
                         of a search warrant, the total drug quantity encompassed in the conspiracy
                         was 11.36 grams of crack. (¶ 19).

       Informants told the Coffee County, Tennessee, Sheriff’s Department that Hickerson “was

running one of the largest crack cocaine operations” in the county. (¶ 14). Prior to the defendant’s

arrest, he was “residing with” Hickerson “at Hickerson’s residence.” (¶ 56).3 According to Count

9 of the indictment, the defendant had begun his conspiratorial activities with his codefendant by

December, 2007 – within seven months of parole after serving over five years of a twenty-five year

sentence for aggravated robberies and robbery (as described below). (¶¶ 5, 43).




       2
           Unless otherwise indicated, all ¶ references are to the PSI.
       3
          The District Judge, perhaps reasonably, could have inferred that defendant had participated
in other drug sales while residing with Hickerson. He did not, however, mention any such inference
during the sentencing proceeding.

                                                   2
No. 09-6297
United States v. Ferguson



                                     2. Guideline Calculation

                   a. Without Career Offender Enhancement: 70-87 Months

       As initially calculated, the defendant’s base offense level, based on 11.36 grams of crack

cocaine and crediting him with a three-point reduction for acceptance of responsibility due to his

guilty plea, was 21.

       The defendant’s criminal history category was V. This was based on a computation of twelve

criminal history points, which the Probation Officer assessed on the basis of:

       •         1998 sale of two rocks of crack cocaine for $20.4                 3 pts.

       •         1998 criminal impersonation; possession of narcotic equipment;
                 traffic offense.                                                  1

       •         1999 theft of property between $500 and $1000.                    1

       •         Driving without a license; evading.                               1

       •         Aggravated robbery with a weapon (four counts);
                 robbery (one count).5                                             3

       •         Add-on for committing the instant offenses while on parole        2

       •         Add-on for committing the instant offenses less than two
                 years after release from custody                                  1




       4
           As discussed below, this was a predicate conviction for Career Offender purposes.
       5
           These are predicate convictions for Career Offender purposes.

                                                  3
No. 09-6297
United States v. Ferguson

       Total                                                                           12 6

       The sentences for the first four counted convictions were: 1) crack cocaine – three years, with

release from a boot camp after four and a half months, to probation, revoked for absconding;7 2)

impersonation, etc. – forty-five days at 30%; 3) theft – unknown; and 4) traffic offense – thirty days.

       The four counts of aggravated robbery and one count of robbery resulted in a sentence of

twenty-five years. The defendant’s sixteen-count indictment resulted from a month-long crime spree

between December 15, 2000, and January 17, 2001. The indictment included twelve counts of

aggravated robbery, two counts of “especially aggravated kidnapping,” one count of robbery, and

one count of attempted robbery. The defendant pled to the indicated four counts of aggravated

robbery and one count of robbery. He served five years and five and a half months until being

paroled on May 9, 2007. Five months later a parole violator warrant issued. With an adjusted

offense level of 21 and criminal history category of V, the defendant’s guideline range would have

been 70 - 87 months.

                   b. With Career Offender Enhancement: 188-235 Months

       Seventy to 87 months was not, however, the applicable range.

       The probation officer applied the career offender enhancement under § 4B1.1 based on the

1998 two-rock crack cocaine and 2001 robbery convictions. This automatically increased the


       6
         Additional convictions not leading to imposition of criminal history points, were: 1998 -
trespassing (¶ 38), 1999 - impersonation (¶ 40), and 2000-2001 - robberies (¶ 43).
       7
         The District Judge might reasonably have taken defendant’s previous probation and parole
revocations, as well as time served, into account when determining the sentence. But he did not
allude to this part of the defendant’s record.

                                                  4
No. 09-6297
United States v. Ferguson

defendant’s base offense level to 34 and his criminal history category to VI. With a three-level

reduction for acceptance of responsibility, the result was a guideline range applicable at sentencing

of 188-235 months.

                            3. Other Pertinent Information in the PSI

       The PSI referenced the defendant’s drug addiction. In addition, the PSI stated that the

defendant reported he suffered from manic depression since he was a juvenile, and had been treated

for depression, a suicide attempt and substance abuse in 1998. (¶ 59). The PSI does not otherwise

confirm the self-reported manic-depression diagnosis.

       During an earlier incarceration the defendant received his GED. (¶ 62). His employment

record was sparse. The probation officer was unable to confirm his employment with the entities

for whom the defendant had told the officer he had worked. (¶ 64). When arrested, the defendant

had no income, assets or liabilities. (¶ 65).

                                    B. Sentencing Proceedings

       The defendant’s attorney filed a motion for downward departure on October 14, 2009. (R.

76). This filing, the Judge noted at the outset of the sentencing hearing, was “a couple of days late.”

(Sentencing Tr. 2/lines 12-13). The Judge also correctly observed that the request, though styled as

one for a downward departure, more accurately was for a variance from the Guideline sentence. (Id.

at lines 10-11). The attorney’s motion asserted four grounds for deviating from the Guideline range,

as enhanced by the career offender designation:

       1.      The small amount of crack that the defendant sold in 1998 (less than half a gram) and
               small amounts the defendant himself sold to the CI in this case (one gram);


                                                   5
No. 09-6297
United States v. Ferguson

        2.      That, despite the designation of four of his prior robbery offenses as aggravated, he
                only had a gun in one of the robberies, and that had been a BB gun;

        3.      The defendant did not have a leadership role in the offenses of conviction; and

        4.      His criminal history category of VI significantly overstated the seriousness of the
                defendant’s criminal history.

        The District Judge stated he “had reviewed the file carefully” and had “read both sets of

papers. I’m ready to go today.” (Id.). He then asked defense counsel if he and the defendant were

“prepared to proceed today. . . .” (Id.). Defense counsel stated he had not seen the government’s

sentencing memorandum (Tr. 3/lines 4-5), which the court described as “more thorough[]” than the

defendant’s motion, though filed forty-eight hours after the defendant’s untimely motion. (Tr. 2/line

16).

        The court, referring to counsel’s failure to have seen the government’s memorandum as a

“problem,” told defense counsel, “if you want to make a motion to continue . . . I’d be inclined to

grant that motion.” (Tr. 3/line 6, 13-14). The court noted that the defendant appeared unhappy with

that prospect, and suggested that he and his attorney talk to “decide how we want to proceed on this.”

(Id. at lines 17-18).8 After a brief recess, the attorney reported that the defendant “has asked that we

proceed with the argument, Your Honor, as best we can.” (Tr. 4/lines 19-20).9 The hearing began,



       8
         The PSI indicated that the defendant wanted his father to attend his sentencing. The
defendant’s father, following his own release from a fifteen year term of imprisonment, was suffering
from cancer. He had been a codefendant with the defendant on at least one of the 2001 aggravated
robbery charges. (PSI ¶¶ 43, 57).
       9
       The record does not indicate whether defense counsel read the government sentencing
memorandum during the recess.

                                                   6
No. 09-6297
United States v. Ferguson

though the defendant’s attorney acknowledged, once it had been under way, “quite honestly, I would

have preferred some more time, but Mr. Ferguson is ready to go forward and I’m at a loss.” (Tr.

9/lines 19-20).

         This statement came after the court had confirmed that the plea agreement was fair, there

were no objections to the PSI, and the Guideline range was 188-235 months. (Tr. 5/line 6 - Tr. 6/line

15). The court then asked defense counsel, “why don’t you go ahead and summarize your motion,”

which, in the court’s view, “deals principally with the two predicate offenses for career offender

status.” (Tr. 7/lines 6-9). Counsel agreed that was the gravamen of the motion.

         This led to a colloquy about the four aggravated robbery convictions resulting from the

defendant’s month-long crime spree. Defense counsel stated, “apparently, during three of those

counts, Mr. Ferguson didn’t even have a weapon. . . .” (Tr. 7/line 25 - Tr. 8/lines 1-2). When the

judge asked, “What is your basis for saying that,” defense counsel repeated his assertion that “[that]

apparently was part of the underlying factual basis . . . was that he never had a weapon” aside from

a BB gun “in one event.” (Tr. 8/lines 3-21). Defense counsel noted that he had not represented the

defendant during the robbery prosecution, and he thus was “at a bit of a loss.” (Id. at lines 8-9).

However, when the judge repeated his request that defense counsel “tell me what your basis for that

contention is” (id. at lines 10-11), defense counsel stated, “Simply what Mr. Ferguson had advised

that the only time he ever had a gun was in one of those aggravated burglaries [sic] and it was a BB

gun.” (Id. at lines 12-13). On being again asked for “proof,” the defense attorney said that he did

not have any, “[o]ther than what Mr. Ferguson has told me about the underlying conviction itself.

. . .” (Id.).

                                                  7
No. 09-6297
United States v. Ferguson

         When the court pointed out that the defendant had pled guilty to four counts of aggravated

robbery with a weapon, the defendant’s attorney noted that the PSI summary referenced a gun as to

one robbery. He added, “I don’t know why it was termed and that he pled to an aggravated burglary

[sic].” (Tr. 9). Whereupon, the court stated, “I don’t know how much of a difference this would

make, but I’ll tell you in my mind this could make a difference.” (Id.) At this point, the defendant’s

attorney made his comment about preferring “some more time,” but his client wanted to go forward.

(Id.).

         The court then asked the prosecutor to comment. After summarizing the account of the four

aggravated robberies in the PSI, the AUSA noted that the defendant was now improperly “trying to

collaterally attack these previous convictions that he pled guilty to.” (Tr. 9-10). After responding,

“Yeah,” (Tr. 10) the Judge then stated:

         Well, and as you point out, Mr. Ferguson does have an extensive criminal history.
         And, you know, over a relatively short period of time which, much of which he was
         in prison during that period of time.

         So, based upon what’s before me, Mr. Leonard, I’m going to have to deny your
         motion for downward departure. I think that under the circumstances that are before
         the Court, all of the facts that I have, the application of the career offender status to
         Mr. Ferguson is appropriate. And, therefore, I find that the advisory guideline range
         of 188 to 235 months is appropriate to address all of the facts and circumstances of
         Mr. Ferguson’s case, as well as his history and characteristics.

(Tr. 10-11).

         The Judge thus proceeded without further inquiry into or discussion of the other aspects of

the defendant’s criminal history or the other points defense counsel had raised in his motion for a




                                                    8
No. 09-6297
United States v. Ferguson

variance, and defense counsel did not object. The Judge said he “would hear” from defense counsel,

the prosecutor and the defendant before imposing sentence. (Tr. 11).

       Defense counsel began by pointing out that the defendant’s co-defendant, Hickerson, though

likewise a career offender, had received a sentence of 140 months. The Judge having just told him

that he was denying the defendant’s request for a variance, the attorney asked for a sentence “at the

lower end of the range.” (Tr. 11). To this the government responded with a request to sentence

within range. It also noted that the “coconspirator did get a sentence of 140 months and he has met

with the government and spoken with the government, . . . .” (Id.). The court then asked, “Did you

say Mr. Ferguson met with the government and spoke with the government?” When the prosecutor

acknowledged, “He has,” the court then stated, “Hasn’t risen to the level of substantial assistance?”

The prosecutor responded, “No, it has not, Your Honor.” (Id.).

       The court then called on the defendant to speak. After the defendant had noted, “it all comes

from drug abuse” (id.), the court stated it would recommend that he “receive 500 hours of treatment

from the Bureau of Prisons.” (Tr. 14). The defendant concluded his statement in mitigation by

noting that he was “not violent at all,” his case involved “small quantities of drugs,” and he had

made efforts to help the authorities: “I met with the government. I’ve gave, I’ve gave them some on

state sentences, two different cases. I’ve told them. I’ve been interviewed by different police

authorities and things like that nature.” (Id.).

       Neither defense counsel nor the court asked the government to respond to the defendant’s

contentions about his efforts to help the government or argue why they were insufficient to warrant



                                                   9
No. 09-6297
United States v. Ferguson

a downward variance. The court pronounced a sentence of 200 months, which was twelve months

above the low end of the range.

        The court then noted, “you and you alone are the one that has brought this to pass in your

life.” But, the court also stated, “the only good news . . . is that you’re a relatively young man[10] and

you will come out the other side of this.” (Tr. 14).

        The District Judge then stated, “The Court has considered the nature and circumstances of

the offense, the history and characteristics of the defendant, and the advisory guideline range, as well

as other factors listed in Title 18, United States Code, Section 3553(a).” (Id.).

        The court then formally stated the sentence and imposed the 200-month term, a six-year term

of supervised release, and recited various conditions of supervised release. (Tr. 15-16). He ended

the sentencing hearing by informing the defendant of his right to appeal, to which the defendant

responded, “I definitely want to appeal.” (Tr. 16).

        At the conclusion of the hearing, the Judge asked, “Does either party have any objection to

the sentence just pronounced that have [sic] not previously been raised,” to which both counsel

responded, “No, Your Honor.” (Id. at 16).

                                            DISCUSSION

                                    A. Procedural Insufficiency

        In this appeal, the defendant argues:




        10
             The defendant was thirty-nine when the court sentenced him.

                                                   10
No. 09-6297
United States v. Ferguson

       •       The sentencing judge did not: a) address his attorney’s arguments for a lower
               sentence; b) consider the § 3553(a) factors, or c) provide a reasoned basis for the
               sentence;

       •       The sentence is substantively unreasonable because the court arbitrarily selected the
               term of 200 months without considering the § 3553(a) factors; and

       •       His attorney’s failure to include the 100:1 crack/powder cocaine disparity in his
               argument for a below-Guideline sentence constituted ineffective assistance.

       We conclude that the sentence in this case was procedurally unreasonable because the District

Judge did not: 1) consider all of the defendant’s arguments in support of a downward variance; 2)

consider all of the § 3553(a) factorsfailed to: 1) take greater cognizance of the defendant’s arguments

in support of a downward variance; 2) fully consider the factors which he was required to consider

under 18 U.S.C. § 3553(a); and 3) adequately express his reasons, in light of those factors, for

imposing a sentence of 200 months.

       Our review of the sentence is for procedural and substantive reasonableness. United States

v. Keller, 498 F.3d 316, 322 (6th Cir. 2007). A sentence is procedurally unreasonable, inter alia,

where the sentencing judge “simply selects what the judge deems an appropriate sentence without

. . . consideration” of the § 3553(a) factors. United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005)

(citing United States v. Booker, 543 U.S. 220, 222 (2005)). On the other hand, “sentences falling

within the advisory Guidelines range,” as in this case, “may be considered presumptively

reasonable.” United States v. Herrera-Zuniga, 571 F.3d 568, 582 (6th Cir. 2009) (citing Rita v.

United States, 551 U.S. 338, 347-51 (2007)).




                                                  11
No. 09-6297
United States v. Ferguson

               1. Consideration of the Defendant’s Arguments at Sentencing11

       As noted, the defendant’s attorney filed a presentencing motion for a downward departure,

which the court below properly treated as a request for a variance from the Guideline range.12 That

motion asserted four grounds for a deviation from the enhanced Guideline range:

       1.      The small amount of crack which the defendant sold in 1998 (less than half a gram)
               and the amounts sold to the CI in this case (one gram);

       2.      That, despite the designation of four of his prior robbery offenses as aggravated, he
               had only had a gun in one of the robberies, and that had been a BB gun;

       3.      The defendant did not have a leadership role in the offenses of conviction; and

       4.      His criminal history category of VI significantly over-stated the seriousness of the
               defendant’s criminal history.

       We agree with the defendant that the District Judge should have addressed all four of his

asserted grounds for a departure/variance. The judge’s omissions in this regard resulted, in part, from

how he framed the issue, stating at the outset, “your motion deals principally with the two predicate

offenses for career offender status.” (Tr. 7/lines 8-10). Instead of then or ever reminding the judge

that that was not all, the defendant’s attorney agreed with the judge’s statement. At that point,

moreover, the attorney offered a weak assertion that the defendant had been unarmed during his


       11
          The defendant’s brief argues as its first point the failure to consider the § 3553(a) factors
and state the reasons for the sentence. We first address whether the District Judge adequately
considered the defense arguments for a departure/variance, then whether the Judge considered the
§ 3553(a) factors adequately and, finally, whether his statement of his reasons for his sentence
sufficed. This is the conventional sequence, which the court followed here at sentencing.
       12
          To the extent that the motion asked the court to find the defendant’s criminal history
category overstated, it requested a downward departure. To the extent it sought a below-Guideline
sentence, it asked for a variance.

                                                  12
No. 09-6297
United States v. Ferguson

month-long crime spree, though four of the convictions were for aggravated robbery. The

defendant’s attorney offered no evidence in support of that assertion. Instead, he merely said that the

defendant was his source for that contention. (Id. at line 25 - 10/line 14).

       Without mentioning the defense attorney’s remaining contentions, the Judge found that the

Guideline range of 188 - 235 months was “appropriate to address all of the facts and circumstances

of Mr. Ferguson’s case, as well as his history and characteristics.” (Tr. at 10/lines 21-22; 11/lines

2-4). The attorney did not remind the judge, and the judge did not comment on, the rather small

overall amount of crack cocaine involved in 1998 and the sales (his and Hickerson’s) resulting in

his present conviction. The Judge likewise made no mention of the defendant’s lack of a leadership

role. The court did note, however, with regard to the claim that the criminal history was overstated,

that the criminal history was “extensive” and occurred over a “relatively short period of time.” Thus,

the court overlooked two portions of the defendant’s request for a departure/variance: the modest

amount of drugs and lack (apparently undisputed) of a leadership role.

       This court recently summarized the duty to respond to arguments in support of a variance:

       Regardless of whether it may be error to grant a variance without some indication of
       the reasoning, discussion of all rejected requests for variances is not required.
       “Although Congress requires a court to give ‘the reasons’ for its sentence, 18 U.S.C.
       § 3553(c), it does not say that courts must give the reasons for rejecting any and all
       arguments by the parties for alternative sentences.” . . . It suffices that “[t]he record
       makes clear that the sentencing judge listened to each argument,” “considered the
       supporting evidence,” “was fully aware of the defendant's various physical
       ailments[,] and imposed a sentence that takes them into account.”

United States v. Lamb, 431 F. App’x 421, 426 (6th Cir. 2011) (citations omitted) (emphasis

supplied).


                                                  13
No. 09-6297
United States v. Ferguson

       The defendant cites three cases in support of his claim that the sentencing judge failed to give

adequate consideration to the arguments counsel made in his presentencing motion: United States

v. Thomas, 498 F.3d 336 (6th Cir. 2007), United States v. Richardson, 437 F.3d 550 (6th Cir. 2006),

and United States v. Buffington, 310 F. App’x 757 (6th Cir. 2009). The government argues that these

cases are not applicable or are distinguishable. To be sure, the Judge’s explanation in Thomas13 for

rejecting the defense contentions was less complete than the explanation in this case. But that those

in Thomas were more opaque and abrupt does not make the judge’s response to the defendant’s

contentions here sufficient.

       The defendant cites Richardson, a case in which the judge expansively explained his reasons

for his sentence, 437 F.3d at 554, simply for the proposition that “the record must reflect both that

the district judge considered the defendant’s argument and that the judge explained the basis for

rejecting it. . . .” The court in that case did so. See id. at 552-53. In Buffington, the district court

carefully considered the pertinent § 3553(a) factors and commented at length on the defendant’s

criminal history. 310 F. App’x at 761. But that was not enough to avoid a finding of procedural

unreasonableness. This was so because, as here, “the judge never specifically addressed three of [the

defendant’s] four arguments. . . .” Id. at 763. Thus, even though the court in that case considered

the § 3553(a) factors, this court vacated and remanded for resentencing “[b]ecause the district court




       13
           “I believe that a sentence of 240 months, given the defendant's background and behavior
in this particular case is a fair, adequate and reasonable sentence considering the advisory guideline
range that applies, and as well considering the additional factors contained within 18 [U.S.C.]
Section 3553(a).” 498 F.3d at 339.

                                                  14
No. 09-6297
United States v. Ferguson

failed to provide a sufficient basis for its rejection of [the defendant’s] arguments for a lower

sentence . . . .” Id.

        The government argues that the court’s consideration met the requisite standard:

        The district court stated that it had read Defendant’s motion, and it heard oral
        argument from both parties regarding the merits of that motion. (R. 96, Sentencing
        Hr’g Tr. at 6-7.) During the course of defense counsel’s argument, the district court
        asked a number of questions. (Id. at 7-9.) And, it ultimately stated that “based upon
        what’s before me . . . I’m going to have to deny your motion for downward
        departure.” (Id. at 10.) Additionally, with respect to Defendant’s argument about the
        sentence received by co-defendant Hickerson, the district court explained that it
        considers every case individually and co-defendant Hickerson (unlike Defendant)
        received a downward departure due to the substantial assistance that he provided to
        law enforcement. (Id. at 11-12.)

(Doc. 006110707161, at 19-20).14

        The government recites the inarguable point that “a district court need not address in detail

every argument that a defendant raises in support of a lesser sentence because district courts are

afforded ‘considerable latitude in deciding which arguments to discuss and how much explanation

is necessary.’” (Id. at 20) (quoting United States v. Mitchell, 295 F. App’x 799, 804 (6th Cir. 2008)).

The government also cites the statement in Rita, 551 U.S. at 356-57 (internal quotations omitted),

that “lengthy explanation of the sentence may be particularly unnecessary where the district court

imposes a within-Guidelines sentence and where a matter is conceptually simple and the record



        14
           Reading the defendant’s submission is not the same as “considering” it. See Thomas, 498
F.3d at 341 (where “arguments went unmentioned and unaddressed, save the general statement by
the district court that it had received, read, and understood the sentencing memorandum[,] . . . we
must conclude that the context and the record do not make clear the court's reasoning.”) (internal
quotation marks omitted).


                                                  15
No. 09-6297
United States v. Ferguson

makes clear that the sentencing judge considered the evidence and arguments.” The government

fails, however, to note the Supreme Court’s caveat in Rita that where the defendant “argues for

departure, . . . [and] presents nonfrivolous reasons for imposing a different sentence, the judge will

normally go further and explain why he has rejected those arguments.” Id. at 357.

       That is the situation here: the defendant’s attorney presented nonfrivolous reasons for

departure/variance. But the Judge failed to “go further and explain why he . . . rejected” one (that

the defendant had been unarmed), glossed over another (overstated criminal history), and left two

(modest drug quantity/non-leadership) of the points defense counsel asserted of four arguments.

Here, as in Buffington, failure to address defense arguments for a reduced sentence (even though the

District Judge in that case extensively considered the § 3553(a) factors) supports remand for

resentencing.

       In this case, a sentence of nearly seventeen years called for some consideration of the de

minimis amount of crack cocaine attributed to the defendant’s own conduct. This is especially so

in light of his undisputed lesser role in the overall operation. In sum, the sentencing court’s colloquy

with defense counsel did not touch on the most compelling evidence in the record favoring a

downward variance.

                    2. Failure to Consider and Enunciate § 3553(a) Factors

       A foundational principle of the sentencing procedure established in 18 U.S.C. § 3553 is that

the sentence is to be individualized: the judge “must make an individualized assessment based on

the facts presented.” Gall v. United States, 552 U.S. 38, 50 (2007). “In making that determination,”

this court stated in Herrera-Zuniga, 571 F.3d at 582, “the sentencing judge is obliged to consider

                                                  16
No. 09-6297
United States v. Ferguson

the unique circumstances of the defendant’s case in light of the factors set out by Congress in 18

U.S.C. § 3553(a).”

        The § 3553(a) factors pertinent here are:

        (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 –

                                                *****
        (5) any pertinent policy statement –

                                                *****

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

        The sentencing judge need not list each of the § 3553(a) factors. But the record must show

that the judge actually considered those factors. See United States v. McBride, 434 F.3d 470, 476

n.3 (6th Cir. 2006) (“While the district court need not explicitly reference each of the section 3553(a)

                                                  17
No. 09-6297
United States v. Ferguson

factors, there must still be sufficient evidence in the record to affirmatively demonstrate the court’s

consideration of them.”) (emphasis supplied). Thus, while something less than a factor-by-factor

recitation is acceptable, something more than a simple and conclusory judicial assertion that the

court has considered “the nature and circumstances of the offense and the history and characteristics

of the defendant” is essential. Cf. United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en

banc) (“there is a sizeable gap between good sentencing practices and reversibly bad sentencing

practices.”).

        Here the District Judge initially focused on the defendant’s four aggravated robbery

convictions, found that the career offender designation fit the facts he had before him, and the

Guideline range of 188 to 235 months was appropriate. As in Thomas, 498 F.3d at 340, “the district

court considered the applicable Guidelines range, but not much else.” In that case, apart from noting

“the defendant’s background and behavior in this particular case,” the district court did not mention

the § 3553(a) factors, “save a conclusory reference to considering the additional factors contained

within 18 [U.S.C.] Section 3553(a).” Id. (internal quotations omitted).

        To be sure, the colloquy about the four prior aggravated robbery convictions was somewhat

elaborate. But otherwise, the District Judge made only a generalized, nonspecific allusion to “all of

the facts and circumstances” of the case “as well as his history and characteristics.” The only

“characteristics” which the judge specifically mentioned were the defendant’s (relatively) young age

(39) and how the defendant “alone [was] the one that brought this to pass in [his] life.” (Tr. 14/line

4-7). The conclusory reference to the defendant’s “history and characteristics” precludes assessment

by this court of whether the Judge in fact considered these categories.

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No. 09-6297
United States v. Ferguson

       The only specific factor the Judge addressed among those enumerated in § 3553(a)(2) was

the need “to provide the defendant with needed . . . medical care,. . . in the most effective manner.”

18 U.S.C. § 3553(a)(2)(D). That occurred when the Judge said he would recommend 500 hours of

drug treatment while the defendant was in the custody of the Bureau of Prisons. (Tr. 12/line 25 -

13/lines 1-8). There was no mention of the seriousness of the crimes of conviction, even when the

quantities that Hickerson sold were attributed to the defendant. There is, moreover, no reference to

the need to promote respect for the law, provide just punishment for the offense, afford adequate

individual or public deterrence against criminal conduct, and protect the public from further crimes

by the defendant.

       The government contends that the record shows the Judge gave adequate attention to the §

3553(a) factors by determining the Guideline range, noting the defendant’s age and emphasizing his

criminal history. However, the government is plainly wrong in its contention that the record shows

the court also considered “the need for the sentence to ‘reflect the seriousness of the offense,’ to

‘promote respect for the law,’ ‘deter criminal conduct,’ and ‘protect the public.’”             (Doc.

006110707161, at 14). There simply is nothing in the record, either express or implicit, that

indicates the Judge considered any of those important statutory factors.

       The government also contends that the principal case on which defendant relies with

reference to the Judge’s consideration of the § 3553(a) factors, United States v. Penson, 526 F.3d

331 (6th Cir. 2008), does not support his challenge to the sentence. To be sure, the Judge’s failure

in Penson to state the factors on which he was relying was even more complete than in this case.

In Penson, “the district court never verbalized which of [the § 3553(a)] factors were particularly

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No. 09-6297
United States v. Ferguson

important to the circumstances of this case or how it selected the sentence in light of these factors.”

Id. at 338.15 While here the Judge alluded to the defendant’s need for drug treatment, mentioned his

age and focused on his criminal history, whatever consideration he gave to any of the other factors

is not manifest in the record. Here, as in Penson, the Judge “left us no record on review showing that

[he] considered the § 3553(a) factors.” Here, as there, though the record contains something, it

simply is not enough to show that the Judge adequately considered the § 3553(a) factors.

        These factors are a crucial and congressionally mandated check on arbitrary sentencing.

While this court has often granted some leeway to District Judges in their handling of the § 3553(a)

factors, a lack of attention to all but one or two factors is insufficient.

                                  B. Failure to Explain Reasons
                                for Imposing a 200-Month Sentence

        Section 3553(c)(1) requires the court, even when imposing a within Guideline range

sentence, to state its reasons for the particular sentence:

        (c) Statement of reasons for imposing a sentence.– The court, at the time of
        sentencing, shall state in open court the reasons for its imposition of the particular
        sentence, and, if the sentence–

                (1) is of the kind, and within the range, described in subsection (a)(4) and that
                range exceeds 24 months, the reason for imposing a sentence at a particular
                point within the range; . . . .


        15
          The decision in United States v. Jackson, 408 F.3d 301, 305 (6th Cir. 2005), speaks
principally to the insufficiency of the judge’s statement of reasons for a downward variance. The
court also pointed out, however, that, “in determining the sentence, the district court must consider
the advisory provisions of the Guidelines and the other factors identified in 18 U.S.C. § 3553(a).”
Id. Just as here, the court there did not do so, and this court vacated the defendant’s probationary
sentence and remanded for resentencing.


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No. 09-6297
United States v. Ferguson

As this court stated in United States v. Vowell, 516 F.3d 503, 510 (6th Cir. 2008):

       [W]e have consistently held, post-Booker, that a sentence may be procedurally
       unreasonable if the district court did not consider the applicable Guidelines range or
       neglected to consider the factors set forth in 18 U.S.C. § 3553(a), and instead simply
       chose a sentence that the judge deemed appropriate. See, e.g., [United States v.]
       Collington, 461 F.3d [805,] 808 [(6th Cir. 2006)]. We further require that the district
       court explain “its reasoning to a sufficient degree to allow for meaningful appellate
       review.” United States v. Trejo-Martinez, 481 F.3d 409, 412-13 (6th Cir. 2007); see
       also United States v. Lonnie Davis, 458 F.3d 505, 510 (6th Cir. 2006) (“The district
       court's thorough consideration of the § 3553(a) factors certainly allows for intelligent
       appellate review.”). Moreover, the district court should set forth enough facts to
       satisfy this court that it considered the parties' arguments and had a reasoned basis
       for exercising its own legal decision-making authority. Rita [v. United States, 551
       U.S. 338, 356 (2007)].

       As Vowell suggests, an adequate statement of reasons is a precondition of meaningful

appellate review of a sentence. But the requirement of a statement of reasons does more than merely

facilitate review by this court. In addition, the statement of reasons for a sentence, as delineated in

Rita, 551 U.S. at 356:

       •       Confirms that the sentencing judge “has considered the parties' arguments.” Id.

       •       Shows that the judge “has a reasoned basis for exercising his own legal
               decisionmaking authority.” Id. (citing United States v. Taylor, 487 U.S. 326,
               336-337 (1988));

       •       Creates “[c]onfidence in a judge's use of reason,” which “underlies the public's trust
               in the judicial institution. A public statement of those reasons helps provide the
               public with the assurance that creates that trust.” Id.

       •       Informs the Sentencing Commission and thereby “help[s] the Guidelines
               constructively evolve over time, as both Congress and the Commission foresaw.” Id.
               at 358.

       Of equal importance to any of these objectives, an adequate statement of reasons tells the

defendant why the judge is imposing the specific sentence. An uninformed defendant is likely to be

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No. 09-6297
United States v. Ferguson

an embittered defendant. An informed defendant may be more accepting of the sentence and embark

upon it more willing to work towards a law-abiding future. See id. at 357 (noting that a judge’s

“speak[ing] at length to a defendant . . . may indeed serve a salutary purpose.”).

       The judicial statement of reasons, especially “when a judge decides simply to apply the

Guidelines to a particular case, . . . will not necessarily require lengthy explanation.” Id. at 356.

Thus, where “[c]ircumstances . . . make clear that the judge rests his decision upon the [Sentencing]

Commission's own reasoning that the Guidelines sentence is a proper sentence (in terms of § 3553(a)

and other congressional mandates)” and “the judge has found that the case before him is typical, .

. . the judge normally need say no more. ” Id. at 357. The Court also stated in Rita:

       Where the defendant or prosecutor presents nonfrivolous reasons for imposing a
       different sentence, however, the judge will normally go further and explain why he
       has rejected those arguments. Sometimes the circumstances will call for a brief
       explanation; sometimes they will call for a lengthier explanation.

Id.

       In sum, assessing the adequacy of a judge’s statement of reasons requires looking at the

quality and content, not the quantity of the judge’s words. Here the Judge’s statement of why he

rejected the defendant’s request for a downward variance was merely conclusory. (Tr. 10-11). This

case, as defendant argues, resembles Penson, in which the sentencing judge “provided virtually no

explanation giving insight into the reasons for the specific sentence given” nor “verbalized which

of [the § 3553(a)] factors were particularly important to the circumstances of this case or how it

selected the sentence in light of these factors.” 526 F.3d at 338.




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No. 09-6297
United States v. Ferguson

        Likewise, as the defendant also points out, in United States v. Ross, 375 F. App’x 502, 508

(6th Cir. 2010), this court remanded for resentencing where “[t]he court made no attempt to actually

apply any of [the § 3553(a)] factors to the specific facts of th[e] case or explain why those sentencing

factors actually counseled in favor of the imposed sentence.” In Ross, unlike here, the sentencing

court had stated, as its rationale for its sentence, that the sentence “would ‘afford adequate

deterrence,’ ‘provide just punishment,’ and ‘provide the defendant with the opportunity to obtain

vocational and educational rehabilitation.’” Id. (transcript references omitted). This conclusory

recitation of the § 3553(a)(2) factors, the court stated, “failed to provide a sufficient rationale for its

sentence on which we can base our review.” Id.

        If mere mention of the factors, as in Ross, without connecting them to the individual

defendant and his particular history and characteristics does not suffice, then the conclusory assertion

the Judge made here – that he had “considered the nature and circumstances of the offense, the

history and characteristics of the defendant, and the advisory guideline range, as well as other factors

listed in [section 3553(a)]” – is similarly insufficient. This is particularly so in view of the Judge’s

failure to fulfill the mandate of § 3553(c)(1) that he expressly state “the reason for imposing a

sentence at a particular point within the range.” Instead, the Judge simply stated:

        I am going to sentence you to – well, I’m not going to sentence you to the very
        bottom of your range, it’s going to be closer to the bottom than it is to the top of your
        range, but, you know, Mr. Ferguson, I hate to say it, you and you alone are the one
        that brought this to pass in your life.

(Tr. 14/lines 1-6).




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No. 09-6297
United States v. Ferguson

       To be sure, “the burden of explanation imposed by 18 U.S.C. § 3553(c)(1) is comparatively

modest; a district court must offer ‘only a general statement of the reasons for its imposition of the

particular sentence.’” United States v. Fraser, 647 F.3d 1242, 1246 (10th Cir. 2011) (citing United

States v. Ruiz–Terrazas, 477 F.3d 1196, 1199-1201 (10th Cir. 2007)); accord, Rita, 551 U.S. at

356–57 (“within-guidelines sentence does ‘not necessarily require lengthy explanation’”).

       A district court makes an adequate statement of reasons under § 3553(c)(1) by tailoring its

comments to show the sentence was consistent with the sentencing factors of § 3553(a). United

States v. Parrado, 911 F.2d 1567, 1572 (11th Cir. 1990). No specific language is required when

stating the reasons for a sentence, as a district court simply must demonstrate that it was “mindful”

of the appropriate factors when imposing the sentence. Id. at 1572-73.

       This case is similar to United States v. Hall, 610 F.3d 727, 745 (D.C. Cir. 2010), in which

the sentencing court used terms about the defendant’s responsibility for his crimes similar to those

the Judge used here:

       Although the district court explained that Hall would be sentenced “for what he did
       which was to cheat, lie, and steal to enrich himself and which caused great injury to
       others,” . . . and that no one was to blame for the injury to investors “other than Mr.
       Robert Hall,” . . . the district court did not explain why, in view of the factors in 18
       U.S.C. § 3553(a), a sentence of 188 months was necessary, much less why the lower
       sentence that Hall requested would be insufficient. A remand is, therefore, required.

A statement of personal responsibility – which applies to every convicted defendant at every

sentencing – is not the kind of “reason” envisioned by § 3553. It says nothing about why the Judge

chose 200 months, rather than some other term within the Guideline range. Even when a court

sentences, as here, toward the low end of the Guideline range, it must state its reasons for doing so.


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No. 09-6297
United States v. Ferguson

See United States v. Taylor, 371 F. App’x 375, 385 (4th Cir. 2010) (holding that the judge’s

statement, “the court has imposed a sentence near the bottom of the range because there are no

unaccounted for aggravating factors and because of the defendant's lack of criminal convictions,”

was insufficient under § 3553(c)(1)).

       The court emphasized its view of the defendant’s criminal history and, particularly, the four

aggravated robberies and another robbery he committed over a one-month span. That consideration

was, however, in conjunction with the Judge’s decision to deny a downward variance. When

pronouncing the 200-month sentence, the Judge gave no explanation of why he chose that figure,

rather than some other term. He no doubt had some reasons for concluding, albeit sub silentio, that

200 months, rather than the low end of 188 months was “sufficient, but not greater than necessary”

to accomplish his sentencing purposes. But we do not know what they might have been, and

whether they were proper.

                                          CONCLUSION

       The trial court gave insufficient consideration to the defendant’s arguments and reached its

decision not to vary without having considered crucial issues. The court focused on the defendant’s

criminal history to the practical exclusion of all other pertinent factors, failing to mention many of

the sentencing factors under § 3553(a)(2). The statement of reasons was simply inadequate. This

court is left with a record which we cannot review to any meaningful extent and the defendant is left

without an explanation as to why the Judge imposed a 200-month sentence.16


       16
         Having reached our decision on procedural grounds, we need not address the defendant’s
other two claims (substantive unreasonableness and ineffective assistance of counsel). We are

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No. 09-6297
United States v. Ferguson

       Accordingly, we REVERSE AND REMAND FOR RESENTENCING consistent with the

statements in this opinion.




confident that a properly conducted resentencing, aided by fully prepared and effective counsel, will
result in a sentence that makes challenges of either sort most unlikely.

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No. 09-6297
United States v. Ferguson

        BOGGS, Circuit Judge, dissenting.

        In this case, the essential issue is the adequacy of the district judge’s explanation for his

sentence. As the majority correctly lays out, especially at pages 14, 16–17, and 19–20, our cases

repeatedly indicate that while the judge must give an explanation adequate for us to exercise our

responsibility of review, the judge is not required to mechanistically touch on every point raised by

a defendant or every factor laid out in the statute. To me, the essence of this dual set of rules is that

we are not simply grading the eloquence or thoroughness of the district court’s resolution as one

might assess a law-school exam. Rather, we are to judge, in a commonsense manner, whether we

can understand the basis for the decision and whether that basis is within the very broad sentencing

parameters allowed to a district judge, especially after Booker. In this case, I part from my learned

brethren in that I would hold that the district judge did an adequate job here—at least a job adequate

enough to withstand appellate review under the proper standard. As I read the record and statements

of the district judge, I understand why he did what he did.

        The majority opinion chastises the district judge for not having discussed in more detail

various aspects of the defendant’s pleadings and arguments. On the other hand, the judge did clearly

discuss and understand the defendant’s criminal history, the fact that he had not cooperated as much

as his co-defendant and not enough to rise to the level of substantial assistance, and his background

and circumstances, especially his drug addiction. In particular, at pages 6–11 of the sentencing

transcript, the judge extensively engaged the argument that the defendant’s criminal history was

overstated. He gave defense counsel an opportunity to support that argument and then explained

why, in his judgment, defendant’s record of violence was fairly represented in the PSR. The

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No. 09-6297
United States v. Ferguson

marginal nature of the deficiencies for which the district judge is reversed is especially shown by the

beginning of the discussion at page 10, point A, where the majority opinion concludes that the judge

was unreasonable because he failed to “consider all of the defendant’s arguments,” “consider all of

the § 3553(a) factors,” and “adequately express his reasons.” The qualified nature of these holdings

shows that my disagreement with them is simply one of line-drawing in a very murky area. My

reading of the transcript is that the district judge was conscientiously doing his best to fulfill his

duties as required by the statute and the guidelines and with the latitude afforded by the Supreme

Court’s decision in Booker.

       Could the oral discussion have been longer? Yes. Could it have touched on more points and

done so with greater logical structure and rhetorical completeness? Yes. However, does our

law—statutory, Supreme Court precedent, and Sixth Circuit precedent—dictate that the district judge

must be overturned? To that, I would say no.

       From having read many, many transcripts of federal sentencing, especially those since

Booker, I might give this particular sentencing a lower grade in a law-school course on criminal

sentencing than I might have given some other transcripts I have read. However, does it rise (or

descend) to the level of unreasonableness. I do not think so.

       In addition, the majority’s emphasis on the attitude of the defendant on page 20 strikes me

as misconceived. While the general sentencing scheme seeks to advance many disparate goals, and

while I am sure that keeping the defendant “informed” by giving an explanation is one of them,

albeit fairly far down the list in my estimation, I know of no case in which that concern has played

a significant role in determining whether or not to reverse a sentence.

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No. 09-6297
United States v. Ferguson

       In addition, the judge carefully and thoroughly (and accurately, in all estimations) determined

the advisory sentencing-guideline range, began with that range, and carefully noted that there was

a motion for a downward departure or variance. He then indicated that he had considered not only

the record from the court, but also public letters that were submitted and then placed in the record.

He interacted with the defense’s arguments for a lower sentence and, thus, presumably for a sentence

at the low end of the guideline range. Finally, the judge emphasized the violence of the defendant’s

past history, despite the defendant’s efforts to minimize it.

       In sum, in this relatively ordinary drug-sentencing case, where the defendant’s primary

arguments were his comparative lack of culpability relative to a co-conspirator, minimization of the

seriousness of the crime, and a plea as to his non-violent nature, I believe what the judge did here

was not reversible. I therefore respectfully dissent.




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