                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0698n.06

                                            No. 09-5264                                      FILED
                                                                                        Oct 05, 2011
                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                             LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                          )
                                                   )
       Plaintiff-Appellee,                         )
                                                   )   ON APPEAL FROM THE UNITED
v.                                                 )   STATES DISTRICT COURT FOR THE
                                                   )   WESTERN DISTRICT OF TENNESSEE
SIEG RANSOM, aka J-Rock                            )
                                                   )
       Defendant-Appellant.                        )



       Before: DAUGHTREY, COOK, and KETHLEDGE, Circuit Judges.


       COOK, Circuit Judge. In this sentencing appeal, we must determine whether the district

judge erred in applying a five-year minimum consecutive sentence under 18 U.S.C. § 924(c) and

whether the district judge abused his discretion in declining to vary downward from the career

offender guidelines range. Concluding that the district judge applied § 924(c) correctly and that the

district judge did not abuse his discretion in determining the sentence, we affirm.


                                                   I


       Defendant-appellant Sieg Ransom pleaded guilty to one count of being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g), two counts of possession of more than five grams

of cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and one count of using

and carrying a firearm during and in relation to a drug-trafficking offense in violation of 18 U.S.C.
No. 09-5264
United States v. Ransom


§ 924(c). The probation officer determined in a Presentence Investigation Report (“PSR”) that

Ransom faced a total offense level of 23 and a criminal history category of VI. The probation officer

then applied the career offender guidelines under U.S.S.G. § 4B1.1(b)(A), resulting in an offense

level of 34 (after the subtraction of three levels for acceptance of responsibility) and a guideline

range of 262 to 327 months. The combination of the § 924(c) conviction and other drug-trafficking

convictions added 60 months to Ransom’s advisory range, resulting in a final advisory range of 322

to 387 months.


       At sentencing, Judge Samuel H. Mays, Jr., stated the recommended guidelines range and

asked the parties to comment, but the parties did not dispute the calculation, the application of the

five-year minimum consecutive sentence, or the criminal history as stated in the PSR. Defense

counsel voiced Ransom’s position that the career offender guideline should not apply because

Ransom’s criminal record overstated the seriousness of his criminal history. Notwithstanding

counsel’s arguments, the district judge expressed concern that Ransom’s record might have

understated Ransom’s criminal history, noting that Ransom had incurred new charges for drug-

trafficking crimes since the last conviction. He then sentenced Ransom to 322 months of

imprisonment: 120 months for Count 1 and 262 months for Counts 2 and 4 to run concurrently, and

60 months on Count 3 to run consecutively.


       Ransom filed a timely notice of appeal on March 3, 2009. He asks this court to overturn the

district court’s decision and to remand for resentencing, contending that the district court should not


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have applied a five-year minimum consecutive sentence for the § 924(c) violation and that the

district court abused its discretion in refusing to deviate from the career offender sentencing

guideline.


                                                II


       The parties dispute whether 18 U.S.C. § 924(c)(1)(A) requires a minimum consecutive

sentence of five years even where Ransom faces a greater minimum sentence for another count of

conviction unrelated to using, carrying, or possessing a firearm in connection with a crime of

violence or a drug-trafficking crime. “The district court’s application of 18 U.S.C. § 924(c) is a

question of law which we review de novo.” United States v. Langan, 263 F.3d 613, 626-27 (6th Cir.

2001). 18 U.S.C. § 924(c)(1)(A) states in relevant part:


       Except to the extent that a greater minimum sentence is otherwise provided by this
       subsection or by any other provision of law, any person who, during and in relation
       to any crime of violence or drug trafficking crime (including a crime of violence or
       drug trafficking crime that provides for an enhanced punishment if committed by the
       use of a deadly or dangerous weapon or device) for which the person may be
       prosecuted in a court of the United States, uses or carries a firearm, or who, in
       furtherance of any such crime, possesses a firearm, shall, in addition to the
       punishment provided for such crime of violence or drug trafficking crime—(i) be
       sentenced to a term of imprisonment of not less than 5 years . . . .


18 U.S.C. § 924(c)(1)(A) (2006) (emphasis added). Ransom contends that the plain meaning of the

phrase “otherwise provided by this subsection or by any other provision of law” encompasses all

classes of laws without limit. In United States v. Almany, 598 F.3d 238, 242 (6th Cir. 2010), we


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endorsed this interpretation of the phrase. The Government proposes instead that “any other

provision of law” refers only to laws that penalize “using, carrying, or possessing a firearm in

connection with a crime of violence or a drug trafficking crime.”


         Sometime after the parties submitted their briefs, the Supreme Court ruled on this very issue

in Abbott v. United States, ___ U.S. ___, 131 S. Ct. 18, 29-31 (2010). The Court adopted the

Government’s approach, clarifying that the exception in § 924(c) only applies if another count

imposes a higher minimum penalty for using, carrying, or possessing a firearm in connection with

a drug-trafficking crime or crime of violence. Abbott expressly rejected the interpretation that

Ransom proposes, and the Supreme Court later vacated Almany and remanded the case for further

consideration in light of Abbott. See Abbott, 131 S. Ct. at 23 (“[A] defendant is subject to a

mandatory, consecutive sentence for a § 924(c) conviction, and is not spared from that sentence by

virtue of receiving a higher mandatory minimum on a different count of conviction.”); United States

v. Almany, 131 S. Ct. 637 (2010). The Sixth Circuit then affirmed the district court decision in

Almany, following Abbott’s interpretation. United States v. Almany, 626 F.3d 901, 901-02 (6th Cir.

2010).


         In the instant case, none of Ransom’s other counts concerns using, carrying, or possessing

a firearm in connection with a drug-trafficking crime or crime of violence. As such, the exception

does not apply and § 924(c) requires Ransom to serve the five-year minimum consecutive sentence.




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                                                 III


       Ransom next argues that the district court unreasonably refused to vary from the career

offender guideline, which added 17 to 19 years to the 92- to 115-month guidelines range he would

have otherwise received. “Regardless of whether the sentence imposed is inside or outside the

Guidelines range, the appellate court must review the sentence under an abuse-of-discretion

standard.” Gall v. United States, 552 U.S. 38, 51 (2007). We evaluate the district court’s decision

for procedural reasonableness and substantive reasonableness. United States v. Collington, 461 F.3d

805, 808 (6th Cir. 2006).


                                  A. Procedural Reasonableness


       Significant procedural errors, “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,” may constitute procedural unreasonableness. Gall, 552 U.S. at 51. As explained in Gall,

a district court should begin the sentencing proceedings with a correct calculation of the guidelines

range, give both parties an opportunity to argue for whatever sentence they deem appropriate, and

consider all of the § 3553(a) factors without presuming the reasonableness of the guidelines range.

Id. at 49-50; cf. Rita v. United States, 551 U.S. 338, 351 (2007) (emphasizing that the presumption

of reasonableness for a sentence within the guidelines applies only at the appellate level). Then,

upon settling on the appropriate sentence, the district court must “adequately explain the chosen

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sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.”

Gall, 552 U.S. at 50 (citing Rita, 551 U.S. at 357-58).


       The parties do not dispute that Judge Mays calculated the guidelines range correctly or that

he gave both parties an opportunity to argue their positions at the sentencing hearing. Ransom

contends, however, that Judge Mays failed to treat the guidelines as advisory and failed to account

adequately for the need to avoid sentencing disparities under § 3553(a)(6).


                             1. Treatment of Guidelines As Mandatory


       Though Judge Mays expressly acknowledged the advisory nature of the guidelines, Ransom

asserts that Judge Mays nevertheless felt “constrained to apply the guidelines in a mandatory

fashion.” As evidence, Ransom construes Judge Mays’s comments to express concern that “he

would not be following the ‘rule of law in this country’ were he to vary from the guidelines,” that

“he could not pick a number out of thin air, that he was not supposed to be guessing what he might

do if Mr. Ransom were somebody else, and that he could not rely on his instincts.”


       Ransom misreads these quotes by divorcing them from their context. When Judge Mays

stated, “It doesn’t work under the rule of law in this country,” the “[i]t” in that comment referred to

the act of selecting a sentence without “hav[ing] a reasonable basis for [his] sentence,” not the act

of sentencing outside of the guidelines range. Cf. United States v. Johnson, 640 F.3d 195, 205 (6th

Cir. 2011) (quoting Gall, 552 U.S. at 51) (“When imposing a procedurally reasonable sentence, the


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district court must ‘adequately explain the chosen sentence—including an explanation for any

deviation from the Guidelines range.’” (emphasis added in Johnson)). Judge Mays acknowledged

that the guidelines sentence initially seemed high to him, and he considered whether he could

rationally justify imposing a sentence below the guidelines range. Finding that he could not, he

concluded, “the more I look at it, the guidelines appear to be what work here, although, I think they

are real heavy.” Judge Mays’s reasoning on the record suggests a reluctance to act arbitrarily, not

a reluctance to vary from the guidelines. Judge Mays’s express reasoning for staying within the

guidelines suggests that he understood the nonmandatory nature of the guidelines and came to an

independent decision not to vary from them in this case because of Ransom’s recidivism.


          2. Failure to Consider Need to Avoid Sentence Disparities Under § 3553(a)(6)


       Section 3553(a)(6) requires sentencing courts to consider “the need to avoid unwarranted

sentence disparities among defendants with similar records who have been found guilty of similar

conduct.” 18 U.S.C. § 3553(a)(6) (2006). Ransom faults Judge Mays for creating national

disparities in sentencing by “disregarding” United States v. Ennis, 468 F. Supp. 2d 228 (D. Mass.

2006), and two cases from the Northern District of Ohio that followed Ennis: United States v.

Vigorito, No. 4:04-CR-00011, 2007 WL 4125914 (N.D. Ohio Nov. 20, 2007), and United States v.

Ortiz, 502 F. Supp. 2d 712 (N.D. Ohio 2007).


       Section 3553(a)(6) refers to national disparities rather than disparities among co-defendants,

but a district judge “may exercise his or her discretion and determine a defendant’s sentence in light

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of a co-defendant’s sentence.” United States v. Presley, 547 F.3d 625, 631 (6th Cir. 2008). In Ennis,

the district judge exercised her discretion in sentencing a career-offender below the guidelines range

to avoid the anomalous situation of the street vendor with career-offender status receiving a stiffer

sentence than the more culpable co-defendant drug suppliers who had sufficiently distanced

themselves from the streets to have minimal criminal records. Id. at 230-31, 233 (applying this

rationale to conclude that drug quantity overstated Ennis’s minor role in conspiracy). Rather than

“disregarding” Ennis, Judge Mays explicitly distinguished the Ennis sentencing situation from

Ransom’s. He went on, selecting a sentence consistent with the national guidelines “for uniformity

purposes.”


       Nor do Vigorito and Ortiz compel a finding of abuse of discretion in Ransom’s case. While

the district judge in Vigorito evaluated a career offender with the same criminal history category

facing the same sentence range as Ransom, that judge found the predicate offenses minor and gave

weight to Vigorito’s efforts to improve himself in prison before concluding that the tripling effect

of the career offender guideline appeared too harsh given the § 3553(a) analysis for that case. See

Vigorito, 2007 WL 4125914, at *6-8. By contrast, Judge Mays concluded after examining the drug

quantities reported in Ransom’s criminal history that Ransom’s criminal history understated the

seriousness of Ransom’s drug-trafficking activities, noting with particular concern the $1,000 found

on Ransom’s person during one offense and Ransom’s pattern of recidivism. The district judge in

Ortiz faced a co-defendant disparity problem more akin to the situation in Ennis than the situation

before Judge Mays. That district judge explained that a sentence in the career offender guideline

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range “would have been greater than necessary, especially given the sentences for the co-

defendants,” Ortiz, 502 F. Supp. 2d at 719 (emphasis added), and he focused exclusively on the

disparity between co-defendants in his analysis of § 3553(a)(6)’s uniformity factor. Ransom’s three

distinguishable cases concerning career offenders fail to persuade us that Judge Mays abused his

discretion here.


                                   B. Substantive Reasonableness


        “A sentence is substantively unreasonable if the district court selects a sentence arbitrarily,

bases the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives

an unreasonable amount of weight to any pertinent factor.” United States v. Camiscione, 591 F.3d

823, 832 (6th Cir. 2010) (quoting United States v. Lapsins, 570 F.3d 758, 772 (6th Cir. 2009))

(internal quotation marks omitted). “[T]here is no requirement that every [§ 3553] factor be

discussed at length,” United States v. Blackie, 548 F.3d 395, 400 (6th Cir. 2008), but the “black letter

law of this Circuit requires district courts to consider all factors brought to their attention by a

defendant,” United States v. Gunter, 620 F.3d 642, 646 (6th Cir. 2010) (quoting United States v.

Blackwell, 459 F.3d 739, 774 (6th Cir. 2006)).


        Unlike Ennis, 468 F. Supp. 2d at 238, where the judge observed that “[t]here are times when

every judge tallies up the Guideline numbers, arrives at a range, and concludes that the result makes

absolutely no sense,” Judge Mays decided that the guidelines sentencing range made sense for

Ransom. Ransom conclusorily insists that his sentence is “greater than necessary” to achieve the

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goals stated in § 3553(a)(2), but Judge Mays addressed these factors in open court. Ransom offers

no argument to support his assertion to substantive unreasonableness other than his faulty Ennis

comparison.


                                               IV


       Given that Abbott requires the five-year minimum consecutive sentence from § 924(c) to

apply in this case and given that the sentencing hearing transcript does not support Ransom’s view

that the district judge treated the sentencing guidelines as mandatory or failed to consider the §

3553(a) factors, we affirm.




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