               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 08a0352n.06
                            Filed: June 19, 2008

                                    No(s) 06-6498; 07-5105

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                               )        ON APPEAL FROM THE
                                                        )        UNITED STATES DISTRICT
       Plaintiff-Appellee,                              )        COURT FOR THE EASTERN
                                                        )        DISTRICT OF KENTUCKY
v.                                                      )
                                                        )                          OPINION
JAMES ELLIS RENNER; RUFUS HOLMES,                       )
                                                        )
       Defendants-Appellants.                           )




BEFORE:       SILER and COLE, Circuit Judges; and CLELAND, District Judge*

       R. GUY COLE, JR., Circuit Judge. In this consolidated appeal, Defendants-Appellants

James Ellis Renner and Rufus Holmes challenge their sentences for conspiring to distribute and

distributing a quantity of pills containing oxycodone, a Schedule II controlled substance, as

unreasonable. For the following reasons, we AFFIRM both sentences.

                                      I. BACKGROUND

       On June 22, 2006, a grand jury in the Eastern District of Kentucky returned a nineteen-count

superseding indictment against Danny D. Clark, James Ellis Renner, Samuel Duane Lawson, Rufus

Holmes, and Marlene Holmes, charging them with conspiring to distribute and possession with the




       *
        The Honorable Robert H. Cleland, United States District Judge for the Eastern District of
Michigan, sitting by designation.
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intent to distribute a quantity of pills containing oxycodone and methadone, in violation of 21 U.S.C.

§ 841(a)(1). This indictment came as a result of a year-long investigation by federal, state and local

authorities, which included multiple controlled buys, confidential informants and cooperating

witnesses.

        On August 14, 2006, Renner pleaded guilty to Count 1, conspiring to distribute and

possession with the intent to distribute a quantity of pills containing oxycodone; Count 13, aiding

and abetting the possession of, with the intent to distribute, a quantity of pills containing a detectable

amount of oxycodone; Count 15, aiding and abetting the possession of, with the intent to distribute,

a quantity of pills containing a detectable amount of oxycodone; and Count 19, criminal forfeiture

pursuant to 21 U.S.C. § 853.

        As a part of his plea agreement, Renner admitted that, on November 13, 2004, federal, state,

and local authorities seized approximately twenty eighty-milligram OxyContin tablets—a

prescription painkiller containing oxycodone—and $2,125.00 in currency during a traffic stop. On

March 15, 2005, authorities obtained consent to search Renner’s residence and found ten and three-

quarters OxyContin tablets, one hundred and thirteen prescription Xanax pills, and thirty-two units

of hydrocodone, another Schedule II controlled substance. Renner also admitted that, over the

course of the conspiracy, he purchased a total of 2,100 OxyContin tablets, mostly for distribution.

        According to the Guidelines, Renner pleaded guilty to an amount of oxycodone equal to

1,125.6 kilograms of marijuana, which put his base offense level at thirty two. UNITED STATES

SENTENCING GUIDELINES (“U.S.S.G.” or “Guidelines”) § 2D1.1(c)(4).                     The Presentence

Investigation Report (“PSR”) recommended an increase pursuant to U.S.S.G. § 2D1.1(b)(1), for the

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possession of a dangerous firearm during the offense, which resulted in an adjusted offense level of

thirty four. Pursuant to U.S.S.G. § 3E1.1(a), the PSR recommended a three-point decrease for

acceptance of responsibility. Based on a total offense level of thirty one and a criminal history

category of six, the PSR calculated the Guidelines range as 188 to 235 months of imprisonment.

       On September 27, 2006, Holmes pleaded guilty to Count 1, conspiring to distribute and

possess with the intent to distribute a quantity of pills containing oxycodone; Count 12, aiding and

abetting the distribution of a quantity of pills containing a detectable amount of oxycodone; Count

17, aiding and abetting the distribution of pills containing a detectable amount of oxycodone; and

Count 19, criminal forfeiture pursuant to 21 U.S.C. § 853.

       As a part of Holmes’s plea agreement, Holmes admitted that, on September 22, 2004, federal

and local authorities used a cooperating witness to purchase three OxyContin tablets from him for

the price of $300.00. On April 28, 2006, another cooperating witness purchased two OxyContin

tablets from Holmes for the price of $200.00. As a result of these controlled buys, which were audio

recorded, authorities determined that Holmes and his wife, Marlene, purchased the pills from Clark

for redistribution. Altogether, Holmes and his wife purchased approximately 31,200 OxyContin

tablets and sold approximately two hundred OxyContin tablets per week for three years, all of which

were supplied by Clark.

       According to the Guidelines, Holmes pleaded guilty to an amount of oxycodone equal to

16,723 kilograms of marijuana, which put his base offense level at thirty six.            U.S.S.G.

§ 2D1.1(c)(4). The PSR recommended a two-point decrease pursuant to the safety valve in U.S.S.G.

§ 2D1.1(b)(9), which resulted in an adjusted offense level of thirty four. Pursuant to U.S.S.G.

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§ 3E1.1(a), the PSR recommended a three-point decrease for acceptance of responsibility. Based

on a total offense level of thirty one and a criminal history category of one, the PSR calculated the

Guidelines range as 108 to 135 months of imprisonment.

       The United States District Court for the Eastern District of Kentucky sentenced Renner to

200 months on each count to be served concurrently, and Holmes to a term of 87 months on each

count to be served concurrently. Both defendants timely appealed.

                                          II. ANALYSIS

A. James Ellis Renner

       Renner argues that (1) the district court’s enhancement of his sentence for possession of a

firearm violated United States v. Booker, 543 U.S. 220 (2005), because the court relied on a fact not

found by a jury beyond a reasonable doubt; and (2) the district court did not properly consider his

poor health during sentencing. We find neither argument compelling.

       1. Judicial Fact-Finding

       Renner’s argument that the district court violated Booker by judicial fact-finding is meritless.

In Booker, the Supreme Court clarified the constitutionality of judicial fact-finding under the

Guidelines by declaring that the Guidelines range was to be considered advisory rather than

mandatory. Booker, 543 U.S. 259-60. But, as this Court has repeatedly held, “judicial fact-finding

in sentencing proceedings using a preponderance of the evidence standard post-Booker does not

violate either Fifth Amendment due process rights, or the Sixth Amendment right to trial by jury.”

United States v. Gates, 461 F.3d 703, 708 (6th Cir. 2006); see also United States v. Cook, 453 F.3d

775, 777 (6th Cir. 2006). Contrary to Renner’s claim, Booker did not hold that judicial fact-finding

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is unconstitutional unless the facts applied to the sentencing determination are found beyond a

reasonable doubt.

       2. Reasonableness Review

       Renner also challenges his sentence of 200 months, within the Guidelines range of 188 to 235

months, as unreasonable. The district court’s task at sentencing is to “impose a sentence sufficient,

but not greater than necessary, to comply with the purposes” of the factors set forth in Section

3553(a). 18 U.S.C. § 3553(a). “‘The court need not recite the[] factors [listed in 18 U.S.C.

§ 3553(a)] but must articulate its reasoning in deciding to impose a sentence in order to allow for

reasonable appellate review.’” United States v. Penson, ---, F.3d ----, 2008 WL 2167383, at *3 (6th

Cir. 2008) (quoting United States v. Kirby, 418 F.3d 621, 626 (6th Cir. 2005)).

       Under Rita v. United States, --- U.S. ---, 127 S. Ct. 2456 (2007), and Gall v. United States,

--- U.S. ---, 128 S. Ct. 586 (2007), we review a district court’s sentencing determination for

reasonableness under a deferential abuse-of-discretion standard. “This review entails a two-step

process. The appellate court ‘must first ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence

based on clearly erroneous facts, or failing to adequately explain the chosen sentence.’” Penson,

2008 WL 2167383, at *4 (quoting Gall, 128 S. Ct. at 597). “‘Assuming that the district court’s

sentencing decision is procedurally sound, the appellate court should then consider the substantive

reasonableness of the sentence imposed under an abuse-of-discretion standard.’” Id. (quoting Gall,



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128 S. Ct. at 597). We may apply a nonbinding, rebuttable presumption of reasonableness to a

within-Guidelines sentence. Rita, 127 S. Ct. at 2462-63.

               (a) Procedural Reasonableness

       Renner’s central claim is that the district court should have granted a downward departure

because of his poor health. According to the PSR, Renner “has suffered five heart attacks and three

strokes, and has undergone open-heart surgery twice.” Renner has also had two angioplasty

procedures and two cardiac catheterizations, and takes eleven prescription medications in the

morning and six at night for his various heart conditions. Pursuant to U.S.S.G. § 5H1.4, “an

extraordinary physical impairment may be a reason to downward depart; e.g., in the case of a

seriously infirm defendant, home detention may be as efficient as, and less costly than,

imprisonment.” The problem, however, is that Renner did not seek a downward departure in the

district court, and cannot do so now. United States v. Ware, 282 F.3d 902, 907 (6th Cir. 2002)

(holding that defendant’s failure to seek a downward departure waives the claim on appeal).

       To the extent that Renner’s argument could be construed as a challenge to the procedural

reasonableness of the sentence, we review for plain error because at the conclusion of the sentencing

hearing, the district court asked the parties “if there’s any objection to the sentence imposed,” and

Renner’s counsel responded, “No objection, Your Honor.” See United States v. Vonner, 516 F.3d

382, 386 (6th Cir. 2008) (en banc). To demonstrate plain error, Renner must show “(1) that an error

occurred in the district court; (2) that the error was plain, i.e., obvious or clear; (3) that the error

affected defendant’s substantial rights; and (4) that this adverse impact seriously affected the



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fairness, integrity or public reputation of the judicial proceedings.” United States v. Davis, 397 F.3d

340, 346 (6th Cir. 2005).

        Here, no error occurred, plain or otherwise, because the district court properly calculated the

applicable Guidelines range, gave both parties the opportunity to argue for whatever sentence they

deemed appropriate, and considered all of the § 3553(a) factors. United States v. Bolds, 511 F.3d

568, 581 (6th Cir. 2007) (“[I]n reviewing sentences for procedural reasonableness we must ensure

that the district court: (1) properly calculated the applicable advisory Guidelines range; (2)

considered the other § 3553(a) factors as well as the parties’ arguments for a sentence outside the

Guidelines range; and (3) adequately articulated its reasoning for imposing the particular sentence

chosen, including any rejection of the parties’ arguments for an outside-Guildeines sentence and any

decision to deviate from the advisory Guidelines range.”).

        After detailing Renner’s extensive criminal history, and noting that “the penalties that [Renner

has] received have not diminished his activities,” the district court concluded that “it is necessary to

impose a substantial sentence in order to adequately deter future criminal conduct of this defendant

and also to protect the public.” The court also considered Renner’s request for leniency based on the

fact that he is serving an eleven-year concurrent state sentence. The court denied the request because

“[t]o impose a sentence otherwise would unduly diminish the seriousness of his offenses and his

activities,” but declined to sentence Renner at the upper end of the Guidelines range because to do

so would violate “subsection (6), the need to avoid unwarranted sentencing disparities among

defendant’s with similar records.” Considering “all the factors in the case, including the undischarged

state term that he will serve, as well as all of the characteristics,” the court ultimately concluded that

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a two-hundred month sentence “would be appropriate and serve all of the statutory purposes . . . just

reviewed.”

         True, the court did not mention his medical condition directly, but this fact does not change

our analysis. Although “the record must reflect both that the district judge considered the defendant’s

argument [for a lower sentence] and that the judge explained the basis for rejecting it,” United States

v. Jones, 489 F.3d 243, 251 (6th Cir. 2007) (quoting United States v. Richardson, 437 F.3d 550, 554

(6th Cir. 2006)), Renner’s counsel mentioned Renner’s poor health only in passing during the

sentencing hearing. After describing the severity of Renner’s drug addiction, pointing out his

acceptance of responsibility, and requesting leniency based on a concurrent eleven-year state sentence

that Renner is currently serving, Renner’s counsel concluded: “[G]iven the nature of this offense and

it being the same exact conduct, my client is in poor health, and given the fact that these cases are

essentially the same case as this conspiracy in this court, we would ask that the Court consider not

only sentencing Mr. Renner to the lower end of the guidelines but to run his federal sentence

concurrent with the state charges.” A district court’s failure to respond to a statement made in such

a perfunctory manner does not render a sentence procedurally unreasonable. See United States v.

Liou, 491 F.3d 334, 339 n.4 (6th Cir. 2007) (“[W]hile a district court’s failure to address each

argument [of the defendant] head-on will not lead to automatic vacatur, we will vacate a sentence if

the ‘context and the record’ do not ‘make clear’ the court’s reasoning.”) (quoting Rita, 127 S. Ct. at

2469).

         Furthermore, the record demonstrates that the district court correctly calculated the Guidelines

sentencing range, considered the availability of Guideline departures, independently applied all the

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§ 3553(a) factors, including Renner’s arguments for a lower sentence, and explained its reasons for

imposing a sentence of 200 months. The district court also noted in detail the nature and

circumstances of Renner’s criminal history, including multiple prior felony and misdemeanor drug

convictions. In short, the district court adequately explained the chosen sentence to allow for

meaningful appellate review. Bolds, 511 F.3d at 580-81.

               (b) Substantive Reasonableness

       We review Renner’s challenge to the substantive reasonableness of his sentence for abuse of

discretion.   Gall, 128 S.Ct. at 597. We have held that “[a] sentence may be substantively

unreasonable where the district court selects the sentence arbitrarily, bases the sentence on

impermissible factors, fails to consider pertinent § 3553(a) factors or gives an unreasonable amount

of weight to any pertinent factor.” Jones, 489 F.3d at 252 (internal quotations and alterations

omitted). However, sentences within the Guidelines range are afforded a rebuttable presumption of

reasonableness. United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006).

       Here, Renner has not rebutted the presumption of reasonableness we accord to within-

Guidelines sentences. First, the record does not support the proposition that Renner’s medical

condition cannot be adequately treated by the Bureau of Prisons. See, e.g., United States v. Jones, 197

F. App’x 455, 458-59 (6th Cir. 2006) (declining to find a sentence unreasonable based on the

defendant’s age and physical condition). Second, a policy statement contained in the Guidelines

states that the defendant’s physical condition is “not ordinarily relevant in determining whether a

departure may be warranted.” U.S.S.G. § 5H1.4; see also United States v. Jackson, 408 F.3d 301, 305

n.3 (6th Cir. 2005) (holding that if a district court relies on a discouraged factor in sentencing, such

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as physical condition, “the district court will need to address these provisions and decide what weight,

if any, to afford them in light of Booker”). Because Renner’s medical condition is not ordinarily a

relevant ground for imposing a lower sentence under the Guidelines unless it “is present to an

exceptional degree,” U.S.S.G.§ 5K2.0(a)(4), the failure to reduce his sentence on the basis of his

health—either sua sponte or through a motion for downward departure—was not an abuse of

discretion. Given Renner’s extensive criminal history and the nature of the offense, and given the

court’s careful consideration of his remaining arguments for leniency, we cannot conclude that the

district court selected Renner’s sentence arbitrarily or gave an unreasonable amount of weight to any

pertinent factor. See United States v. Collier, 246 F. App’x 321, 334 (6th Cir. 2007) (holding that

defendant’s age and medical condition “do not sufficiently impugn the reasonableness of a within-

Guidelines range sentence”).

B. Rufus Holmes

       1. Reasonableness Review

       Holmes challenges his sentence of 87 months, below the Guidelines range of 108 to 135

months, as unreasonable. According to Holmes, the district court did not properly explain and

address the factors used in determining his sentence, nor do the § 3553(a) factors support the length

of that sentence.

               (a) Procedural Reasonableness

       At the end of Holmes’s hearing, the district court asked the parties if they had any objections

to the sentence, and Holmes’s counsel responded, “No, Your Honor.” Accordingly, we review

Holmes’s claim that his sentence is procedurally unreasonable for plain error. Vonner, 516 F.3d at

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386. Here, no error occurred, plain or otherwise, because the district court properly calculated the

applicable Guidelines range, gave both parties the opportunity to argue for whatever sentence they

deemed appropriate, and considered all of the § 3553(a) factors. Bolds, 511 F.3d at 581.

        The district court began by noting the “substantial quantities” of drugs and the extended period

of time the conspiracy lasted. The court went through each statutory factor, considered Holmes’s

history and characteristics—including his medical condition and lack of criminal history—and

explained that it was “sympathetic to his position.” The court then concluded that eighty-seven

months, below the advisory Guidelines range of 108 to 135 months, “would not unduly diminish the

offense that has been discussed here,” and “would be sufficient but not greater than necessary to serve

all of the statutory purposes.” The record demonstrates that the district court correctly calculated the

Guidelines sentencing range, considered the availability of Guidelines departures, independently

applied all the § 3553(a) factors, including Holmes’s arguments for a lower sentence, and explained

its reasons for imposing a sentence of 87 months. In sum, because the district court adequately

explained the chosen sentence to allow for meaningful appellate review, Bolds, 511 F.3d at 580-81,

no plain error occurred.

                (b) Substantive Reasonableness

        Holmes’s sentence is also substantively reasonable. On appeal, Holmes merely reiterates his

lack of criminal history and his drug addiction as reasons for a shorter sentence, but the district court

explicitly considered both of those factors below. Given the nature and circumstances of the

offense—large quantities of drugs and the extended period of time of the conspiracy—and given the

court’s careful consideration of Holmes’s plea for leniency, we conclude that the district court did

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not select the sentence arbitrarily or give an unreasonable amount of weight to any pertinent factor.

Furthermore, sentences within the Guidelines range are afforded a rebuttable presumption of

reasonableness, Williams, 436 F.3d at 708, and it follows that a below-Guidelines sentence is also

given the same presumption of reasonableness, see United States v. Hamid, 227 F. App’x 475, 479

(6th Cir. 2007). Because Holmes has not advanced any argument to rebut that presumption, the

district court did not abuse its discretion in sentencing him to 87 months.

                                       III. CONCLUSION

       For those reasons, we AFFIRM both sentences.




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