                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 15a0399n.06

                                              Case No. 14-1315                                         FILED
                                                                                               Jun 02, 2015
                              UNITED STATES COURT OF APPEALS                               DEBORAH S. HUNT, Clerk
                                   FOR THE SIXTH CIRCUIT




UNITED STATES OF AMERICA                                     )
                                                             )
Plaintiff-Appellee,                                          )        ON APPEAL FROM THE
                                                             )        UNITED STATES DISTRICT
v.                                                           )        COURT FOR THE EASTERN
                                                             )        DISTRICT OF MICHIGAN
DELANO JOHNSON,                                              )
                                                             )
Defendant-Appellant.                                         )

                                                   OPINION

BEFORE: McKEAGUE and DONALD, Circuit Judges; MATTICE, District Judge.*

        MATTICE, District Judge.               On September 30, 2013, Defendant-Appellant Delano

Johnson was convicted of one count of possession with intent to distribute heroin, one count of

possession with intent to distribute cocaine base, and two counts of distribution of heroin

following a three-day jury trial at which he was represented by court-appointed counsel. On

February 27, 2014, the district court found that Johnson qualified as a career offender pursuant to

the U.S. Sentencing Guidelines § 4B1.1 and sentenced him to 262 months’ imprisonment.

Defendant timely appealed on February 28, 2014, and we now affirm the district court’s

judgment.


        *
            The Honorable Harry S. Mattice, Jr., District Judge of the United States District Court for the Eastern
District of Tennessee, sitting by designation.
I.     BACKGROUND AND FACTS

       Johnson was indicted on May 22, 2013, and attorney Stevens J. Jacobs was appointed by

the court to represent him on June 25, 2013. (Docs. 1, 3). On September 13, 2013, at the final

pretrial conference in this matter, Jacobs made a motion to withdraw from representation of

Johnson, citing a “breakdown in communication.” (Doc. 38 at 21). The court then addressed

Johnson, asking him to explain why he had requested that Jacobs be relieved of representation.

In response, Johnson stated:

       Well, actually, he – to be honest with you, I didn’t ask for him to withdraw. He
       asked to withdraw. He said he was going to withdraw because he said it earlier
       when I was in the cell, that he would like . . . to withdraw because our
       communications has – like, it’s been misunderstood, it’s lack of communication.
       So he said he was going to bring that up to you earlier before I came out here.

(Id. at 22). Following additional colloquy, the court recognized that Johnson had not identified a

sufficient reason to relieve Jacobs of his responsibility of representing Johnson. Thus, the court

noted that the case would proceed to trial on September 25, 2013. (Id. at 24-25).

       On September 25, 2013, following the summons of the venire panel but before

prospective jurors were brought into the courtroom, Jacobs renewed his request to withdraw

from representation of Johnson and also requested an adjournment of the trial. (Doc. 39 at 5). In

support of his request, Jacobs informed the court that he and Johnson continued to have

disagreements regarding trial strategy and also indicated that Johnson’s family was attempting to

retain substitute counsel for Johnson. Jacobs stated to the court that Johnson did not “have any

trust in [him].” He also submitted that he and Johnson had “some major disagreements over how

to address this trial and how to even address the cross-examination of witnesses.” (Id. at 6).

       The court questioned Jacobs regarding his discussions with Johnson about his right to

remain silent or provide testimony in his own defense and confirmed that Jacobs had made it

                                                 2
clear to Johnson that whether to testify or not was ultimately Johnson’s decision. (Doc. 39 at 7).

The Court’s discussion with counsel delved into other bases of disagreement with Johnson.

Following his exchange with counsel, the Court turned and asked “Mr. Johnson, has [counsel] at

least done a good job in outlining the differences of opinion that you and he have?” At that

point, the Court permitted Johnson to identify what he believed to be the bases of his

disagreements with counsel.      Following this discussion, the Court stated that the grounds

identified by both Jacobs and Johnson did not suggest “that there is any lack of preparation or

consideration for the merits of [Johnson’s] case.” (Id. at 15). Rather, the court noted that

counsel had “done a good job” educating Johnson on the necessary information and covering all

of the witnesses that the Government intended to call. Finding no reason to dismiss counsel

from his responsibilities in representing Johnson, the court denied counsel’s request to withdraw

from the case and the request for adjournment of trial. (Id.).

       Following a few other housekeeping matters, the court permitted Johnson to address the

court regarding his concerns about his counsel. Johnson read a note that he had prepared the

previous night regarding additional bases of his disagreements over trial strategy with counsel.

Johnson continued to argue to the Court regarding his desire not to have counsel represent him at

trial. Following this exchange, the Court stated:

             We−we are here to select a jury. They will be given extensive instructions
       about the fact that you have no obligation to prove anything, that the burden of
       proof is allocated to the government to prove all the elements of the crime. [The
       prosecutor] reviewed the witnesses that she was going to call in detail. The
       discovery in the case is not particularly complicated and it’s been in your and
       your [counsel’s] possession for some period of time.

              I have not heard anything to suggest that he has done anything short of
       every effort to make sure that you have an understanding of what the evidence is
       that the Government intends to call. [The prosecutor] has outlined it. And we are
       ready to go.

                                                 3
(Id. at 20-21). The Court took a brief recess and then called in the prospective jurors to begin the

voir dire process. Following voir dire, Johnson renewed his request for substitution of counsel,

but the district court once again denied his request. (Id. at 123).

       On September 27, 2013, the government rested its case, the court sent the jury out of the

courtroom, and defense counsel requested that the court give Johnson the weekend to decide

whether he was going to testify on behalf of his defense. (Doc. 41 at 115). Counsel explained

that he had advised Johnson several times not to testify, but that Johnson “would like to testify

and explain his situation.” (Id.). Johnson believed that it would be helpful to him to go through

his notes over the weekend and allow counsel to review his statement with him. (Id. at 115-16).

Johnson believed that his counsel was sincere about not wanting him to give his statement, but

Johnson himself was also sincere that he wanted his “side heard.” (Id. at 117). Upon hearing

Johnson’s position and request for continuance, the district court noted some of the risks of

Johnson testifying, including answering questions posed by the government under oath. (Id. at

117-118). The court also noted that Johnson could either choose to testify or choose not to

testify, but indicated that they would be moving forward with the case that day. (See id. at 120).

When the jury returned to the courtroom, defense counsel stated that he would not be calling any

witnesses. The court then adjourned for the day. On September 30, 2013, the jury returned a

verdict of guilty on all counts. (Doc. 16).

       The district court sentenced Johnson to 262 months’ imprisonment on February 27, 2014.

(Doc. 37 at 4). At Johnson’s sentencing, the court referenced the factors identified in 18 U.S.C.

§ 3553(a). In determining what constituted a reasonable sentence, the court discussed Johnson’s

criminal history background, education, and his history with substance abuse problems. Johnson

appealed this sentence on February 28, 2014.

                                                  4
II. ANALYSIS

         Johnson now appeals his conviction and his sentence based on the following four grounds:

    (1) the district court abused its discretion in denying Johnson’s requests for new counsel; (2) the

    district court abused its discretion in denying Johnson’s request for a break at the conclusion of

    the government’s case to consider whether to take the stand in his own defense; (3) the district

    court failed to comply with 21 U.S.C. § 851(b) when it imposed an enhanced sentence on

    Johnson; and (4) Johnson’s sentence is unreasonable because it is “greater than necessary” to

    comply with the purposes of 18 U.S.C. § 3553(a)(2).

       A. Withdrawal of Counsel

           The first ground upon which Johnson challenges his conviction is that the district court

abused its discretion in denying his court-appointed attorney’s request to withdraw from

representation.1 Specifically, Johnson submits that the conflict between Johnson and his attorney

was “so extensive that the only topic upon which they were allied was that they should not be

attorney and client.” (App. Doc. 15 at 23-24).

           Under the Sixth Amendment, a criminal defendant has the right to have the assistance of

counsel for his defense. U.S. Const. amend. VI. If a defendant does not require court-appointed

counsel, “the Sixth Amendment guarantees a defendant the right to be represented by an

otherwise qualified attorney whom that defendant can afford to hire, or who is willing to

represent the defendant even though he is without funds.” Caplin & Drysdale, Chartered v.

United States, 491 U.S. 617, 624-25 (1989). In the case of an indigent defendant, the “right to

counsel of choice, unlike the right to counsel, however, is not absolute.” United States v. Iles,

906 F.2d 1122, 1130 (6th Cir. 1990). Rather, an indigent defendant does not have a right to have


1
    Although the request was originally made by Jacobs, Johnson ultimately adopted this request.
                                                           5
a particular attorney represent him, and he must show good cause to warrant a substitution of

counsel.    Id.    We review for abuse of discretion a district court’s decision regarding the

substitution of counsel. United States v. Vasquez, 560 F.3d 461, 466 (6th Cir. 2009); United

States v. Mooneyham, 473 F.3d 280, 291 (6th Cir. 2007).

       To determine whether a district court has abused its discretion in denying a motion to

substitute counsel, the Court considers several factors. These factors include “the timeliness of

the motion; the adequacy of the court’s inquiry into the defendant’s complaint; and whether the

conflict between the attorney and client was so great that it resulted in a total lack of

communication preventing an adequate defense.” Mooneyham, 473 F.3d at 291 (quoting United

States v. Saldivar–Trujillo, 380 F.3d 274, 277 (6th Cir. 2004)). The Court also balances the

defendant’s right to counsel of his choice with the public’s right to a “prompt and efficient

administration of justice.” Id. The Court will now address these factors in the context of

Johnson’s case.

       1.         Timeliness.

       Whether a motion is timely “depends on the facts and circumstances of that case.”

Wilson v. Mintzes, 761 F.2d 275, 281 (6th Cir. 1985). In evaluating the timeliness of a request to

substitute counsel, courts have generally addressed this factor from two different perspectives:

the amount of time which passed from the initial appointment of counsel to the request to

substitute, and the proximity of the request to the trial date. The reasons militating in favor of

consideration from these dual perspectives are logical. A court should consider whether both

counsel and a defendant have afforded the attorney-client relationship sufficient time to

determine whether the representation can be an effective one. See United States v. Williams, 176

F.3d 301, 314 (6th Cir. 1999) (finding that a district judge’s refusal to permit new counsel was

                                                6
not an abuse of discretion when “the district court was not satisfied that communication had truly

broken down, only that there was some lack of understanding or lack of confidence between [the

defendant] and his lawyer”). On the other hand, assuming an adequate amount of time has

passed, a substitution on the eve of trial necessitates a continuance and frustrates another judicial

concern, the vindication of the public’s interest in a speedy trial. United States v. Whitfield, 259

F. App’x 830, 834 (6th Cir. 2008) (per curiam) (noting that “when ‘the granting of the

defendant’s request would almost certainly necessitate a last-minute continuance, the trial

judge’s actions are entitled to extraordinary deference’”) (quoting United States v. Pierce, 60

F.3d 886, 891 (1st Cir. 1995)).

       In the case at bar, Johnson and the government appear to agree that there was little or no

delay in the course of proceedings from the commencement of the case, including the

appointment of counsel, to its disposition. Counsel was appointed on June 25, 2013, and there

were no requests for delays by either party until Johnson’s counsel made his first request for

permission to withdraw at the final pretrial conference on September 13, 2013 – a matter of 80

days. While Johnson did at one point complain about the number of times his lawyer had visited

with him at the jail, the record reflects that Johnson and his attorney had communicated several

occasions prior to the final pretrial conference. Under these circumstances, the Court finds that

sufficient time had elapsed between the commencement of the attorney-client relationship and

the final pretrial conference to afford Johnson and his counsel an adequate opportunity to

evaluate the apparent efficacy of the attorney-client relationship.        In this sense, then, we

conclude that, measured from the perspective of the commencement of the relationship, the

request to substitute counsel was timely.




                                                 7
        Turning to the timeliness of the request from the perspective of the proximity of the trial

date, the request takes on a starkly different character. The first time the request to substitute

counsel was asserted, at the September 13, 2013, final pretrial conference, was only 12 days

before the scheduled trial date of September 25, 2013.2 At this proceeding, the record before the

Court supports the conclusion that Johnson and his counsel had apparently engaged in sufficient

communications to have developed fundamental differences of opinion regarding strategy and

tactics, including whether it would be advisable for Johnson to enter into a plea agreement with

the government or proceed to trial and whether counsel should file certain pretrial motions.

Based on the nature of their disagreements, the district court concluded that it had not been

presented with a sufficient justification for a substitution of counsel, and denied counsel’s

request to withdraw.

        The Court notes that the district court did not explicitly discuss the timeliness of

counsel’s request to withdraw at the final pretrial conference other than a passing observation

that the trial was 12 days away and that a jury had been summoned. The next time the issue was

raised – by both counsel and Johnson – was the day of trial itself, immediately prior to the

beginning of jury selection. At that point, defense counsel made a concurrent request to adjourn

the trial because he had met with Johnson at the jail two days prior, and Johnson had advised him

that he was attempting to retain substitute counsel. Counsel advised the district court that he was

compelled to renew his request to withdraw due to what he described as an “impasse” with

Johnson over trial strategy and tactics, including how certain witnesses identified by the

government should be cross-examined and whether Johnson should take the witness stand in his

2
  The transcript of the exchanges between and among the district court, counsel and Johnson reveals some
disconnect among the parties as to the precise facts and circumstances which Johnson and his counsel argued to the
court in support of the request to withdraw. While defense counsel, citing a “breakdown in communication,” asked
to withdraw, Johnson at first stated that he did not ask his counsel to withdraw, but later seemed to accede to this
request.
                                                         8
own defense. The court then engaged in an extended discussion with counsel and Johnson

regarding the nature of their disagreements, and found insufficient cause to permit a substitution

of counsel. As noted supra, this request was once again denied following voir dire on the same

basis.

         Viewing all the facts and circumstances of the timing of the requests for substitution of

counsel as a whole, the Court concludes that this factor is, at best, neutral, tending in favor of the

propriety of the district court’s denial of said request. While a distinction must be made between

defense counsel’s initial request to withdraw from representation at the final pretrial conference

and the renewals of the request on the day of trial, the practical reality is that the district court’s

grant of any of the requests would have inevitably resulted in a continuance of the trial date.

Based on these circumstances, we cannot conclude that this factor supports a conclusion that the

district court abused its discretion. Thus, the Court will turn to the remaining factors.

         2.     Adequacy of the District Court’s Inquiry

         With respect to the adequacy of the district court’s inquiry into a request to withdraw as

counsel, “[t]his Court’s prior decisions indicate that, to meet this requirement, the district court

simply must allow a defendant the opportunity to explain the attorney-client conflict as he

perceives it.” United States v. Marrero, 651 F.3d 453, 465 (6th Cir. 2011) (citing Vasquez, 560

F.3d at 467). As evidenced by the record of both the final pretrial conference and the first day of

trial as discussed infra, the Court concludes that the district court, on both occasions, afforded

Johnson a more than adequate opportunity to explain the bases of his disagreements with counsel

over conduct of the case generally and trial strategy in particular. Accordingly, the Court finds

that this factor weighs heavily in favor of affirmance of the district court’s decision to deny the

request for substitution of counsel.

                                                  9
       3.      Nature of the Conflict Between the Attorney and the Client

       Turning to the third factor, the Marrero court observed:

       [A] defendant’s differences of opinions with his attorney do not create a complete
       breakdown of communication that compromises his defense. This Court has
       previously emphasized that a defendant’s “dissatisfaction with the responses he
       got from his lawyer, not with the lack of opportunity or his inability to talk with
       his lawyer or contact his lawyer,” does not establish a total lack of
       communication.

651 F. 3d at 466 (citing and quoting Saldivar-Trujllo, 380 F.3d at 278).

       In this case, the record reveals that, while Johnson did voice one complaint about the

frequency of visits by his counsel, by the time of trial the communications between attorney and

client had been sufficiently comprehensive that serious disagreements had developed regarding

case strategy and trial tactics. Such disagreements, far from suggesting that Johnson had

inadequate contact and communication with his court-appointed counsel prior to trial, instead

suggest that such contacts and communications had been so extensive so as to evolve into

fundamental disagreements between attorney and client.            While perhaps unfortunate and

regrettable, such disagreements do not rise to the level of “a total lack of communications

preventing an adequate defense.” United States v. Jennings, 83 F. 3d 145, 148 (6th Cir. 1996)

(citation omitted). Accordingly, this factor weights in favor of affirmance of the district court’s

decision to deny the request for substitution of counsel.

       4.      Prompt and Efficient Administration of Justice

       Finally, the Court considers whether the district court’s denial of counsel’s request for

substitution of counsel appropriately balanced the defendant’s right to his choice of counsel with

the public’s right to the prompt and efficient administration of justice. See Marrero, 651 F.3d at

467. Both the defendant’s and the public’s right to prompt and efficient justice are embodied in

the Speedy Trial Act, 18 U.S.C. § 3161, et seq., which requires that a defendant’s trial
                                                10
commence within seventy days after the date on which the indictment was filed or the date the

defendant appeared before a judicial officer of the court in which the charge is pending.

       While it is true that on the day of trial, Johnson expressed his willingness to waive his

speedy trial rights in the interest of substituting his counsel, it is also axiomatic that both a

criminal defendant and the public have an interest in a speedy trial. See, e.g., Zedner v. United

States, 547 U.S. 489, 500-501 (2006) (“The purposes of the [Speedy Trial] Act also cut against

exclusion on the grounds of mere consent or waiver. If the Act were designed solely to protect a

defendant’s right to a speedy trial, it would make sense to allow a defendant to waive the

application of the Act. But the Act was designed with the public interest firmly in mind.”); see

United States v. Taylor, 489 F. App’x 34, 49 (6th Cir. 2012) (recognizing that a district court

may grant a trial continuance and exclude the delay from Speedy Trial Act scrutiny only upon a

finding “that the ends of justice served by granting the continuance outweigh the public’s and

defendant’s interests in a speedy trial.”) (quoting Zedner, 547 U.S. at 498-99) (emphasis added).

Thus, although Johnson may have been willing to waive his speedy trial rights, the district court

was also required to consider the public’s right to the efficient administration of justice.

       As noted previously, had the district court granted counsel’s request to withdraw, even

when first made at the final pretrial conference, it would have inevitably necessitated a

continuance of the trial. By that time, both the government and Johnson’s court-appointed

counsel had invested substantial time and effort to prepare the case for trial. Despite Johnson’s

disagreements with his lawyer’s advice and approach to the case, there is nothing in the record

that suggests either Johnson or his lawyer were unprepared to go forward with the trial. Rather,

they simply disagreed about precisely how it should be conducted. Under these circumstances,




                                                 11
the Court concludes that this factor weighs in favor of affirmance of the district court’s denial of

the request to substitute counsel.

        Having now considered all of the relevant factors, the Court concludes that, to varying

degrees, all weigh in favor of the district court’s denial of Johnson’s counsel’s request to

withdraw from representation. Accordingly, despite the language used by Johnson and his

lawyer, nothing in the record suggests such a complete breakdown in communication so as to

deprive Johnson of effective assistance of counsel. Rather, Johnson simply disagreed with his

lawyer’s advice. Under these circumstances, the district court’s denial of counsel’s request to

withdraw from representation did not violate Johnson’s Sixth Amendment right to counsel and

does not constitute an abuse of discretion.

   B.      Denial of Trial Recess

        Johnson next asserts that the district court abused its discretion by denying his request for

a recess or adjournment of the trial following the conclusion of the government’s case. Johnson

submits that a recess would have afforded him time to consider whether he would take the

witness stand in his own defense.

        This Court has granted district courts wide discretion when determining whether a district

court’s denial of a criminal defendant’s request for a trial continuance constitutes an abuse of

discretion. United States v. Lewis, 605 F.3d 395, 401 (6th Cir. 2010). A district court’s denial of

a continuance is typically considered an abuse of discretion only when it has made its ruling

based on “an unreasoning and arbitrary insistence upon expeditiousness in the face of a

justifiable request for delay.” Vasquez, 560 F.3d at 466 (quoting Morris v. Slappy, 461 U.S. 1,

11-12 (1983)). Further, in order for the district court’s ruling to warrant reversal, a defendant

must show that the denial of the continuance caused him actual prejudice in the defense of his

                                                 12
case. To show actual prejudice, the defendant must establish that the continuance “would have

made relevant witnesses available or added something to the defense.” United States v. King,

127 F.3d 483, 487 (6th Cir. 1997).

         Perhaps the primary reason that appellate courts accord trial courts such broad discretion

with these decisions is the recognition that the trial court judge has the best perspective to make

judgments about how a trial should proceed, based on his or her personal involvement in the

broader context of the proceedings themselves. So it is in this case. The district judge had

already been involved with the parties regarding the nature of the disputes between defense

counsel and Johnson, including disputes as to whether it was advisable for Johnson to take the

witness stand in his own defense. While the district court did not explicitly state his reasons for

denying the continuance, the record is clear that he gave the defendant an opportunity to state his

position and decided to deny the continuance based on the posture of the trial. See Doc. 41 at

120 (having a dialogue with the defendant regarding his right to testify and concluding that

defendant should be ready to make a determination after several days of trial and numerous

meetings with his attorney). Accordingly, we find an appropriate deference to the trial court’s

judgment in this regard requires us to reach a conclusion that the district court did not abuse its

discretion in denying Johnson’s request for an over-the-weekend trial continuance.3

    C.      Failure to Comply with Sentence Enhancement Procedure

         Johnson next asserts that the district court failed to comply with the procedure required

by 21 U.S.C. § 851(b), yet imposed an enhanced sentence upon him. In his brief, Johnson

recognizes that this Circuit has held that violations of “the statute have been held harmless error

3
  Even if we were to question whether the district court was entitled to deference in these circumstances, Johnson
has failed to show how his testimony would have “added something to [his] defense,” meaning that any error by the
district court in this regard would be harmless. However, based on the record before the Court, the Court would
only be able to make such a determination based on speculation, which it is unwilling to do.

                                                       13
in instances where the prior convictions occurred more than five years prior to the filing of the

information, and were thus prohibited from collateral attack per 21 U.S.C. § 851(e).” (App. Doc.

15 at 40).

        The United States attorney must file a notice identifying prior drug-related convictions of

the defendant before trial or entry of a guilty plea in order to seek an enhanced sentence under 21

U.S.C. § 851(b). United States v. Roberts, 529 F. App’x 488, 492 (6th Cir. 2013). Pursuant to

21 U.S.C. § 851(b), such an enhanced sentence may be imposed only if, prior to the imposition

of sentence, the sentencing judge inquires of the defendant whether he or she affirms or denies

the prior convictions and warns the defendant that failure to challenge the conviction prior to

imposition of sentence forecloses a later challenge. United States v. Williams, 899 F.2d 1526,

1529 (6th Cir. 1990). In the case of a defendant whose prior convictions occurred five years

before the information was filed, 21 U.S.C. § 851(e) prohibits collateral attack of those

convictions. United States v. Hill, 142 F.3d 305, 313 (6th Cir. 1998). A district court’s failure to

conduct this inquiry is examined under a harmless error standard. Id.

        In this case, it is undisputed that the district judge did not engage with Johnson in the

colloquy mandated by 21 U.S.C. § 851 and that Johnson received a sentence of 262 months

rather than the maximum statutory penalty of 30 years pursuant to this enhancement scheme.

21 U.S.C. § 841(b)(1)(c). It is also undisputed that the convictions noticed by the government

and ultimately used by the court to enhance Johnson’s sentence occurred more than five years

before the government filed its notice of its intent to enhance Johnson’s sentence in the instant

case.   Based on these undisputed facts, Johnson’s collateral attack of the use of his prior




                                                14
convictions is barred under 21 U.S.C. § 851(e). Thus, Johnson’s challenge to the enhancement

of his sentence must fail.4

    D. Unreasonableness of the Sentence Imposed

        Finally, Johnson asserts that the sentence imposed upon him was substantively

unreasonable because it was greater than necessary to achieve the purposes of criminal

sentencing, as set forth in 18 U.S.C. § 3553(a). In support of his position, Johnson cites the

“national trend towards shorter sentence for federal drug offenses” as well as the district court’s

intent to sentence Johnson at the bottom of his guidelines range. (App. Doc. 15 at 47).

        Under 18 U.S.C. § 3553(a), the district court is required to consider certain factors in

imposing a sentence that is sufficient but not greater than necessary to comply with the purposes

of 18 U.S.C. § 3553(a). “Sentences must be both procedurally and substantively reasonable.”

United States v. Pirosko, No. 14-3402, 2015 WL 2402121, at *11 (6th Cir. May 21, 2015)

(quoting United States v. Kamper, 748 F.3d 728, 739 (6th Cir. 2014)). We review a district

court’s sentence for substantive reasonableness under an abuse of discretion standard. Gall v.

United States, 552 U.S. 38, 56 (2007).                 A sentence may be considered “substantively

unreasonable if the district court selects a sentence arbitrarily, bases the sentence on

impermissible factors, fails to consider pertinent [18 U.S.C.] § 3553(a) factors, or gives

an unreasonable amount of weight to any pertinent factor.” United States v. Darji, No. 13-

3240/3525, 2015 WL 3372729, at *7 (6th Cir. May 26, 2015) (quoting United States v.

Robinson, 503 F.3d 522, 528 (6th Cir. 2007)). A sentence imposed within a properly-calculated




4
  Although Johnson asks the Court to review and expand our precedent subjecting 21 U.S.C § 851(b) errors to
harmless error review, this panel “may not overrule decisions issued by other panels.” United States v. Young, 496
F. App’x 570, 579 (6th Cir. 2012). Thus, we cannot reach this issue.

                                                       15
advisory guidelines range carries with it a rebuttable presumption of reasonableness. Rita v.

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

        At Johnson’s sentencing, the district court appropriately considered and referenced the

18 U.S.C. § 3553(a) factors, including Johnson’s history and the need for the sentence imposed,

in explaining the basis for its sentence. See Doc. 37 at 33 (“Important to the sentence at this

juncture is the fact that the continued and repeat criminal behavior involvement in a significant

amount of the offenses, obviously, dictate a significant sentence in the case.”).        Although

Johnson submits that the district court should have imposed a lower sentence on account of

Johnson’s background and his work with the Drug Enforcement Agency, it remains undisputed

that the district court was aware of these facts, but, given Johnson’s classification as a “career

offender” pursuant to U.S. Sentencing Guidelines § 4B1.1, sentenced him to the bottom of his

properly-calculated guideline range at 262 months. See United States v. Easting, No. 14-5557,

2015 WL 2056962, at *2 (6th Cir. May 5, 2015) (per curiam) (concluding that the defendant’s

“wish that the district court had balanced these factors differently and imposed a below-

guidelines sentence, without more, [was] insufficient to justify [] disturbing the reasoned

judgment of the district court”). While Johnson may disagree with the district court’s analysis of

the 18 U.S.C. § 3553(a) factors, his disagreement does not establish an abuse of discretion on the

part of the district court. As Johnson is unable to establish that his position amounts to anything

more than disagreement with the district court’s sentence, we conclude that the district court did

not abuse its discretion by imposing a sentence of 262 months’ imprisonment.

III.   CONCLUSION

       For the foregoing reasons, we affirm Johnson’s conviction and sentence.




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