                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0186n.06

                                            No. 09-2402

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                     FILED
                                                                                      Mar 28, 2011
UNITED STATES OF AMERICA,                                                       LEONARD GREEN, Clerk

       Plaintiff-Appellee,

v.                                                     ON APPEAL FROM THE UNITED
                                                       STATES DISTRICT COURT FOR THE
JAMES LEE CREWS,                                       EASTERN DISTRICT OF MICHIGAN

       Defendant-Appellant.

                                                /




BEFORE:        MERRITT, CLAY, and GRIFFIN, Circuit Judges.

       CLAY, Circuit Judge. Defendant James Lee Crews appeals the reasonableness of his 72

month sentence imposed by the district court for knowingly possessing with intent to distribute five

grams or more of cocaine base in violation of 21 U.S.C. § 841, and knowingly conspiring to possess

with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. §§ 841 and 846.

For the reasons stated below, we AFFIRM Defendant’s sentence.

                                   STATEMENT OF FACTS

       On January 8, 2007, Michigan State Police officers arranged to buy two ounces of crack

cocaine at a motel in Flint, Michigan from Samuel Sharon Upchurch, Defendant Crews’ co-

defendant in this case. Defendant and Upchurch arrived at the motel together, and proceeded to the

motel room where the controlled buy was scheduled to take place. After Defendant and Upchurch
                                             No. 09-2402

arrived at the designated motel room, police officers searched Defendant and Upchurch. The police

found 45.34 grams of cocaine on Defendant’s person, which Defendant had offered to sell to the

police.

          On April 18, 2007, a federal grand jury returned an indictment against Defendant Crews and

Upchurch. The indictment charged Defendant with one count of knowingly possessing with intent

to distribute five grams or more of cocaine base in violation of 21 U.S.C. § 841, and one count of

knowingly conspiring to possess with intent to distribute five grams or more of cocaine base in

violation of 21 U.S.C. §§ 841 and 846.

          Initially, Defendant pled guilty to knowingly possessing with intent to distribute five grams

or more of cocaine base in violation of 21 U.S.C. § 841 on January 30, 2009, pursuant to a Rule 11

plea agreement. Subsequently, Defendant breached the plea agreement, and the government moved

for its withdrawal. Defendant’s counsel agreed to withdrawal of the plea agreement, and on May

29, 2009 the district judge granted the government’s motion to withdraw. Defendant did not,

however, withdraw his guilty plea as to this count. On September 4, 2009, Defendant also pled

guilty to knowingly conspiring to possess with intent to distribute five grams or more of cocaine base

in violation of 21 U.S.C. §§ 841 and 846.

          The Presentence Report (“PSR”) calculated Defendant’s offense level at twenty-five and

Defendant’s criminal history category at III, producing an advisory guidelines range of 70 to 87

months of incarceration. Neither party objected to the PSR’s calculations. However, Defendant

filed a motion requesting that the district court depart downward from the guidelines range, arguing




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that Defendant’s criminal history category of III overstated the significance of Defendant’s criminal

history.

           The district court sentenced Defendant on October 16, 2009. After the parties explained their

sentencing requests, the district judge stated that he was “going to impose a sentence sufficient but

not greater than necessary to comply with the purposes set forth in 18 U.S.C. § 3553(a).” (R.59, Tr.

of Sentencing at 19.) Specifically, the district court explained:

           The Court has considered the nature of the circumstances of the offense. I saw the
           crack cocaine. It was a significant amount of crack cocaine that you were dealing .
           . . . You were found to be in possession of 45.34 grams of crack cocaine and of
           course 5.3 grams of marijuana was found in the car. So it is a serious offense.
           Considering your history and characteristics . . . . You’re going to be 25 in another
           month. I noted that your parents were married. Your mother eventually re-married,
           you were raised by your step-father. You didn’t have any contact with your natural
           father . . . . I noted that you have a history of depression. You have substance abuse
           issues with alcohol and marijuana which I will deal with later in the sentence I
           impose. You have a ninth grade education. You have no vocational skills and let’s
           turn to your employment . . . . I’m trying to figure out how you supported yourself the
           last seven or eight years. I know you were – clearly know you were dealing drugs,
           but outside of dealing drugs I’m wondering how you supported yourself . . . . I don’t
           see where you have a real good work history at all. It’s just the opposite, which
           makes me wonder how you supported yourself all these years. I have considered
           your history and your characteristics. I have considered the need for the sentence
           imposed to reflect the seriousness of the offense. Now, for about fourteen years . .
           . I’ve been dealing in cases involving crack and powder cocaine. Crack cocaine is
           much more addictive, much more serious than powder cocaine. People that use crack
           cocaine [have] a much, much higher rate of addiction where they just can’t make the
           break after using it the first time they take it. So – and we know you were found with
           a substantial amount of crack cocaine and we know what crack cocaine does to
           people, it destroys lives, it destroys families. So this is a serious offense. You were
           dealing crack cocaine. Not a little bit of crack cocaine, you were not sitting on a
           corner dealing a little bit of crack cocaine, you had a lot of crack cocaine . . . . [F]rom
           where I sit today, I’m certainly not comfortable saying that when you get done with
           your term of incarceration that you will not . . . go back and continue to commit
           crimes and continue to deal drugs.

(Id. at 19-22.)

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                                              No. 09-2402

        After laying out its perception of Defendant and his offense, the district court discussed the

statutory requirements in imposing Defendant’s sentence.

        The Court has considered the kinds of sentences available, in fact, the guidelines are
        correctly scored at 70-87 months . . . . [T]he Court has considered the kinds of
        sentences available and the sentencing range of the guidelines that are of course
        advisory. The Court has considered the need to avoid unwarranted sentencing
        disparities, amongst defendants with similar records, so the Court has considered all
        factors under 18 U.S.C. Section 3553(a) in imposing the sentence.

(Id. at 22.)

        Finally, the district court discussed Defendant’s sentence in light of his individual

characteristics. The district court stated,

        So, who do I have in front of me? I have an individual with minimal contacts in the
        community. I have an individual with a sketchy – sketchy employment history. I
        have an individual who has not taken any steps that I’ve seen to better himself and
        better society. I have an individual who deals crack cocaine . . . and I have an
        individual who has been convicted of counts three and four . . . . For [those]
        convictions . . . this Court considering the sentencing guidelines which are of course
        advisory and the factors contained in U.S.C. Section 3553(a) . . . hereby commits you
        to the custody of the United States Bureau of Prisons for a term of 72 months on each
        of counts three and four to run concurrent . . . . Upon release you will be placed on
        supervised release for a term of three years on each count to run concurrent.

(Id. at 22-23.)

        After sentencing Defendant, the district court asked the parties if they had any objections to

the sentence. Neither party objected. (Id. at 25.)

        Defendant timely appealed his sentence to this Court.




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                                            No. 09-2402

                                           DISCUSSION

       This Court “review[s] all sentences – whether inside, just outside, or significantly outside the

Guidelines range – under a deferential abuse-of-discretion standard.” United States v. Bolds, 511

F.3d 568, 578 (6th Cir. 2007). This reasonableness review “has two components: procedural and

substantive.” Id. at 578. “Consequently, [the Court’s] reasonableness review requires inquiry into

both the length of the sentence and the factors evaluated and the procedures employed by the district

court in reaching its sentencing determination.” United States v. Herrera-Zuniga, 571 F.3d 568, 581

(6th Cir. 2009).

       Defendant challenges the procedural and substantive reasonableness of his sentence.

Specifically, Defendant contends that his sentence is unreasonable for three principal reasons: (1)

it was based on a disparity between the advisory guidelines ranges for crack and powder cocaine

offenses; (2) it is disproportionately longer than that of his co-defendant, Samuel Upchurch; and (3)

Defendant’s criminal history category of III substantially over-represents the seriousness of his prior

offenses. Because Defendant does not clarify which of his objections challenge his sentence’s

procedural reasonableness, and which challenge its substantive reasonableness, we will evaluate the

procedural and substantive reasonableness of each.

       I.      Procedural Reasonableness

               A.      Standard of Review

       In reviewing a challenge for procedural reasonableness, this Court applies one of two

standards of review. This Court reviews preserved sentencing challenges “under a deferential abuse-




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                                             No. 09-2402

of-discretion standard for reasonableness.” Id. However, “[w]here a defendant fails to properly

preserve an issue for appeal, that claim is subject to a review for plain error only.” Id. at 580.

               B.      Analysis

       Prior to evaluating the procedural reasonableness of Defendant’s sentence, this Court must

“determine what standard of review applies” by “determin[ing] whether [Defendant] preserved these

claims for appeal.” Bolds, 511 F.3d at 578. As we held in United States v. Bostic, 371 F.3d 865

(6th Cir. 2004), “district courts are required, after announcing sentence, to ask the parties whether

they have any objections to the sentence that have not previously been raised.” Herrera-Zuniga, 571

F.3d at 578. If the defendant fails to raise an error “[w]here the sentencing judge complies with this

procedure, the defendant generally forfeits the right to challenge on appeal any procedural errors to

which he did not object at the time of sentencing.” Id. Unpreserved procedural challenges will be

reviewed for plain error only. Id. at 581.

       Defendant challenges the procedural reasonableness of his sentence based on the sentencing

guidelines’ crack/powder disparity, the divergence between Defendant’s and Upchurch’s sentences,

and his contention that Defendant’s category III criminal history substantially over-represents the

seriousness of his criminal history. As required by Bostic, after sentencing Defendant, the district

court asked whether Defendant had any objections to the sentence. (R.59, Tr. of Sentencing at 25.)

Defendant did not object to his sentence at the sentencing hearing; therefore, we review the

procedural reasonableness of Defendant’s sentence for plain error.




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                                               No. 09-2402

        Procedural reasonableness review “begins with a robust review of the factors evaluated and

the procedures employed by the district court in reaching its sentencing determination.” Bolds, 511

F.3d at 578. Specifically,

        [i]n reviewing sentences for procedural reasonableness the Court must ensure that the
        district court: (1) properly calculated the applicable advisory Guideline 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-Guidelines sentence and any decision to deviate from the
        advisory Guidelines range.

Id. at 581.

        In reviewing the district court’s application of the § 3553(a) factors “there is no requirement

. . . that the district court engage in a ritualistic incantation to establish consideration of a legal issue”

or that it “make specific findings related to each of the factors considered.” Id. However, in order

for a sentence to be procedurally reasonable “the record must contain the district court’s rationale

for concluding that the sentence imposed is sufficient but not greater than necessary, to comply with

the purposes of sentencing set forth in 18 U.S.C. § 3553(a).” Id. The district court must provide “an

articulation of the reasons [it] reached the sentence ultimately imposed.” United States v. Jackson,

408 F.3d 301, 305 (6th Cir. 2005). This Court has further explained that, “[s]imply listing the §

3553(a) factors and various characteristics of the defendant without referring to the applicable

Guidelines range or explaining the decision to stay within or deviate from that range is insufficient.”

Bolds, 511 F.3d at 580 (quoting United States v. Cousins, 469 F.3d 572, 577 (6th Cir. 2006)).

Instead, to be procedurally reasonable, “[t]he district court must provide a clear explanation of why




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                                             No. 09-2402

it has . . . chosen the particular sentence imposed, regardless of whether it is within or outside of the

Guidelines.” Bolds, 511 F.3d at 580.

        Moreover, to establish plain error in an unreserved procedural reasonableness challenge, “a

defendant must show (1) error[,] (2) that was obvious or clear, (3) that affected defendant’s

substantial rights[, and] (4) that affected the fairness, integrity, or public reputation of the judicial

proceedings.” United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc).

        “This Court’s opinion in Vonner shows that plain error review should be extremely

deferential to the sentencing judge.” United States v. Wallace, 597 F.3d 794, 804 (6th Cir. 2010)

However, the Vonner “majority acknowledged that the crucial question is ‘whether the record makes

clear that the sentencing judge . . . was fully aware of the defendant’s circumstances and took them

into account in sentencing him.’” Id. (quoting Vonner, 516 F.3d at 387). Vonner “emphasizes that

the record must make clear that the sentencing judge considered the evidence and arguments” in

sentencing Defendant. Id. at 805 (same).

                        1.      Crack/Powder Sentencing Disparity

        Defendant first contends that had he “possessed and conspired to [] possess with intent to

distribute 45 grams of powder cocaine on January 8, 2007, his base offense level would have been

14, his total offense level with a two level adjustment for acceptance of responsibility, and his

advisory guideline range would become 15-21 months.” (Br. of Appellant at 11.)               Therefore,

Defendant requests that this Court “remand this case to the district court to consider a variance from

the crack/powder disparity.” (Id. at 14.)




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                                            No. 09-2402

       The Supreme Court stated in Spears v. United States, that “district courts are entitled to reject

and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those

Guidelines.” 555 U.S. 261, 129 S. Ct. 840, 843-44 (2009) (per curiam); see also Kimbrough v.

United States, 552 U.S. 85, 110 (2007) (“[I]t would not be an abuse of discretion for a district court

to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence

greater than necessary to achieve § 3553(a)’s purposes, even in a mine-run case.”).

       However, as Defendant recognizes, “[t]he Sixth Circuit has repeatedly rejected constitutional

challenges to the crack/powder disparity including those based on due process, equal protection and

the Eighth Amendment.” (Br. of Appellant at 11.); see also United States v. Blair, 214 F.3d 690,

702 (6th Cir. 2000); United States v. Bingham, 81 F.3d 617, 630-31 (6th Cir. 1996); United States

v. Hill, 79 F.3d 1477, 1488-89 (6th Cir. 1996); United States v. Pickett, 941 F.2d 411, 418-19 (6th

Cir. 1991). Moreover, this Court has stated that, “a sentencing court is not required to vary or

disagree with the crack cocaine guidelines post-Kimbrough. A within-Guidelines sentence for a

crack cocaine offense post-Kimbrough may still survive a reasonableness inquiry.” United States

v. Smith, 350 F. App’x 54, 57 (6th Cir. 2009) (italics added). Put simply, discretion to vary from the

guidelines based on policy considerations does not imply a requirement to vary from the guidelines

based on policy considerations.

       In sentencing Defendant, the district court explicitly addressed the differences between crack

and powder cocaine. The district court stated,

       Now, for about fourteen years . . . I’ve been dealing in cases involving crack and
       powder cocaine. Crack cocaine is much more addictive, much more serious than
       powder cocaine. People that use crack cocaine [have] a much, much higher rate of
       addiction where they just can’t make the break after using it the first time they take

                                                  9
                                            No. 09-2402

       it. So – and we know you were found with a substantial amount of crack cocaine and
       we know what crack cocaine does to people, it destroys lives, it destroys families.
       So this is a serious offense. You were dealing crack cocaine. Not a little bit of crack
       cocaine, you were not sitting on a corner dealing a little bit of crack cocaine, you had
       a lot of crack cocaine.

(R. 59, Tr. of Sentencing Hearing at 21.) By explaining the seriousness of crack cocaine in its

estimation, the district court “adequately articulated its reasoning for imposing the particular

sentence chosen.” Bolds, 511 F.3d at 581. The district court thus did not plainly err, and this aspect

of the district court’s sentence was not procedurally unreasonable.

                       2.      Disproportionate Sentencing

       Defendant challenges the reasonableness of his sentence based on the disparity between his

72 month sentence, and his co-defendant’s 60 month sentence.

       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.” Moreover,

       [i]n considering a sentencing judge’s obligation to address sentencing disparities
       under § 3553(a)(6), this Court has been clear that, the need to avoid unwarranted
       sentence disparities among defendants with similar records who have been found
       guilty of similar conduct, does not apply to co-conspirators. This factor concerns
       national disparities between defendants with similar criminal histories convicted of
       similar criminal conduct.

Wallace, 597 F.3d at 803.

       Therefore, in sentencing a defendant, “[a] district judge is not required to consider the

disparity between the sentences of co-defendants. A district judge, however, may exercise his or her

discretion and determine a defendant’s sentence in light of a co-defendant’s sentence.” Id.

Furthermore, to be procedurally reasonable, a sentence “based on consideration of the [§ 3553(a)]

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                                             No. 09-2402

factors does not require a rote listing . . . . The district judge is only under a more rigorous duty to

make explicit its consideration of the factors when a defendant makes a particular argument.” United

States v. Simmons, 501 F.3d 620, 625 (6th Cir. 2007).

        In this case, Defendant did not raise the issue of national sentencing uniformity addressed

in § 3553(a)(6) during the sentencing hearing. Thus, the district court was under no specific

obligation to address it in specific detail, particularly as “national uniformity is generally taken into

account by the Sentencing Guidelines, which are almost certainly the best indication of ordinary

practice since most sentences are within the guidelines.” Id. at 626.

        Moreover, Defendant did not raise, and indeed could not have raised, the disparity between

his and Upchurch’s sentences, as Upchurch was sentenced several months after Defendant.

Nevertheless, the district court implicitly rejected any challenge based on a divergence between

Defendant’s and Upchurch’s sentences by pointing out that, “Upchurch was in possession of 1.17

grams of crack cocaine. [Defendant] w[as] found to be in possession of 45.34 grams of crack

cocaine and of course 5.3 grams of marijuana was found in the car.” (R. 59, Tr. of Sentencing

Hearing at 19.)

        The district court’s discussion of the fact that the police found a significantly greater quantity

of drugs on Defendant’s person than on Upchurch’s person is sufficient to explain any differences

in the co-defendants’ sentences. Defendant’s procedural reasonableness challenge on this ground

thus fails.




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                                            No. 09-2402

                       3.      Criminal History Category

       Finally, Defendant argues that his criminal history category substantially over-represents the

seriousness of his prior offenses. The PSR calculated Defendant’s criminal history at III. Although

Defendant moved the district court for a downward departure from that criminal history category,

Defendant did not object to this calculation. Nevertheless, Defendant states that, “[i]t is apparent

from the record that the sentencing judge erroneously concluded that Mr. Crews was a repeat drug

dealer and offender.” (Br. of Appellant at 12.)

       This Circuit “has adopted a categorical approach” in determining whether a prior offense is

relevant in determining a Defendant’s criminal history category. “Generally speaking, only the fact

of the prior conviction and the statutory definition of the predicate offense are used to determine”

a Defendant’s criminal history. United States v. Galloway, 439 F.3d 320, 322 (6th Cir. 2006).

Moreover, this Court “generally presumes that district judges are aware that they have [the]

discretionary authority to depart downward” from a criminal history category. United States v.

Smith, 278 F.3d 605, 610 (6th Cir. 2002). However, on review this Court can find “that the usual

presumption that sentencing courts are aware of their authority to depart does not apply.” Id.

       In this case, the district court indicated that based on Defendant’s “sketchy – sketchy

employment history,” (R. 59, Tr. of Sentencing Hearing at 22.), it did not believe that Defendant’s

criminal history category over-represented the seriousness of his past criminal activities. The district

court also expressed concern about Defendant’s chances of recidivism, stating that it was “certainly

not comfortable saying that when [Defendant] get[s] done with [his] term of incarceration that [he]

will not . . . go back and continue to commit crimes and continue to deal drugs.” (Id. at 21-22.)


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                                            No. 09-2402

However, there is no evidence that the district court misconstrued Defendant’s sentence, or was

unaware of its discretion to depart downward. In fact, the record in this case suggests the contrary,

that the district court exercised its discretion in refusing to depart downward.

               C.      Summary

       Defendant’s sentence of 72 months of incarceration was not procedurally unreasonable. We

therefore AFFIRM the district court’s decision.

       II.     Substantive Reasonableness

               A.      Standard of Review

       This Court reviews the substantive reasonableness of a sentence “under a deferential abuse-

of-discretion standard.” Bolds, 511 F.3d at 578. Our substantive reasonableness review “requires

inquiry into . . .the length of the sentence and the factors evaluated . . . by the district court in

reaching its sentencing determination.” Herrera-Zuniga, 571 F.3d at 581.

               B.      Analysis

       Defendant also challenges the substantive reasonableness of his sentence. The district court

sentenced Defendant to a 72 month term of imprisonment, a sentence at the low end of the 70 to 87

month guidelines range.

       In contrast to the requirements for procedural reasonableness review, a defendant “is not

required to object to the substantive reasonableness of his sentence to preserve the issue for appeal.”

Id. at 578. Substantive reasonableness review focuses on the appropriateness of “the length of the

sentence,” id. at 581, and scrutinizes whether a sentence is adequate, but not “greater than necessary




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                                             No. 09-2402

to accomplish the sentencing goals identified by Congress in 18 U.S.C. § 3553(a).” Id. at 590. This

Court has elaborated that,

        [o]verall, the district court’s task is to impose a sentence sufficient, but not greater
        than necessary, to comply with the purposes of the statutory sentencing scheme. A
        sentence may be considered substantively unreasonable when 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. Presley, 547 F.3d 625, 630-31 (6th Cir. 2008).

        The substantive reasonableness inquiry “take[s] into account the totality of the circumstances,

including the extent of any variance from the Guidelines range.” Bolds, 511 F.3d at 581. In this

inquiry we “apply a rebuttable presumption of substantive reasonableness” to “sentences within the

Guidelines.” Id.

        This Court has clarified that, “[r]egardless of whether [this Court] would have imposed the

same sentence, we must afford due deference to the district court’s decision to determine the

appropriate length of defendant’s sentence, so long as it is justified in light of the relevant § 3553(a)

factors.” Id. at 591.

        Here, as discussed above, the district court provided ample reasons for setting Defendant’s

sentence at 72 months. After discussing the significant amount of cocaine base found on

Defendant’s person, and his dubious work history, the district court stated that it considered “the

need of the sentence imposed to show respect for the law, to promote just punishment for the offense

[Defendant] committed, to afford adequate deterrence for criminal conduct and to protect the public

from further crimes committed by [Defendant].” (R. 59, Tr. of Sentencing Hearing at 21.)

Moreover, the district court explained that it was “certainly not comfortable saying that when

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                                            No. 09-2402

[Defendant] get[s] done with [his] term of incarceration that [he] will not . . . go back and continue

to commit crimes and continue to deal drugs.” (Id. at 21-22.) The district court thus appropriately

imposed a sentence that in its view was adequate, but not excessive to accomplish the policies

embodied in the § 3553(a) factors.

                                           C. Summary

       The district court did not abuse its discretion in sentencing Defendant to a 72 month term of

incarceration. Giving the district court’s sentence the deference it is due, we find that Defendant’s

sentence was not substantively unreasonable. We therefore AFFIRM Defendant’s sentence.

                                         CONCLUSION

       For the foregoing reasons we AFFIRM the district court’s judgment.




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