                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 16a0358n.06

                                       Case No. 15-3695                                 FILED
                                                                                   Jun 29, 2016
                                                                               DEBORAH S. HUNT, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,        )
                                 )
      Plaintiff-Appellee,        )               ON APPEAL FROM THE UNITED STATES
                                 )               DISTRICT COURT FOR THE SOUTHERN
v.                               )               DISTRICT OF OHIO
                                 )
BERRYON F. MOORE, III,           )
                                 )               OPINION
      Defendant-Appellant.       )
                                 )
________________________________ )

       BEFORE: BOGGS, CLAY, and GILMAN, Circuit Judges.

       RONALD LEE GILMAN, Circuit Judge. In December 2013, Berryon F. Moore, III

was indicted on multiple federal charges related to the distribution of heroin. He was released on

bond. Moore was subsequently charged in a criminal complaint with additional federal drug

offenses that he committed while on pretrial release in the first case. To resolve both cases,

Moore pleaded guilty to Count One (conspiracy to possess heroin with the intent to distribute the

drug) in the first case and also admitted that he had committed additional heroin-distribution

offenses while on pretrial release.

       At sentencing, Moore advanced a sentencing-disparities argument in support of his

request for a term of imprisonment below his Sentencing Guidelines range. The district court in

fact sentenced Moore to a below-Guidelines term of imprisonment, but failed to specifically
Case No. 15-3695, United States v. Moore


acknowledge Moore’s sentencing-disparities argument. During the sentencing hearing, the court

divided Moore’s sentence into two separate, consecutive terms of imprisonment: one for Count

One and the other for committing an offense while on pretrial release.

        Moore now appeals, claiming that the district court erred by (1) imposing a sentence for

committing an offense while on pretrial release, and (2) not acknowledging Moore’s argument

concerning sentencing disparities. For the reasons set forth below, we AFFIRM the judgment of

the district court.

                                      I. BACKGROUND

A.      Indictment and guilty plea

        Between 2010 and 2013, Moore participated in a scheme to distribute heroin in

Steubenville, Ohio. An investigation by the FBI into this conduct resulted in Moore’s arrest in

December 2013. That same month, Moore was indicted on two federal counts related to heroin

distribution. Moore was then released on bond pending trial. A second superseding indictment

was filed in October 2014, charging Moore with five counts related to heroin and cocaine

distribution. The conduct charged in this indictment, as in the original indictment, allegedly

occurred between 2010 and 2013.

        In December 2014, Moore was arrested again because he continued to sell heroin while

he was on pretrial release. A federal criminal complaint was subsequently filed in a new case

charging Moore with offenses related to his 2014 conduct.

        In January 2015, Moore entered into a plea agreement with the government to resolve

both cases. Under the agreement, Moore agreed to plead guilty to Count One of the second

superseding indictment in the first case—which charged him with conspiracy to possess heroin

with the intent to distribute the drug, in violation of 21 U.S.C. §§ 841(a), (b)(1)(C) and 846—in



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Case No. 15-3695, United States v. Moore


exchange for the government’s promise to dismiss (1) the remaining counts of the indictment,

and (2) the criminal complaint in the second case.          Moore acknowledged that he faced a

maximum term of imprisonment of 20 years on Count One, and that he was also subject to an

additional term of imprisonment of up to 10 years under 18 U.S.C. § 3147 because he had

committed a separate felony offense while on pretrial release. Moreover, Moore “agree[d] that

because [he] committed the offense of conspiring to possess with intent to distribute heroin while

on release in this case, pursuant to the statutory sentencing enhancement under 18 [] U.S.C. [§]

3147, pursuant to U.S.S.G. § 3C1.3 the offense level will be increased by 3 levels.”

       A magistrate judge conducted a change-of-plea hearing in January 2015, during which

Moore pleaded guilty to Count One pursuant to the plea agreement. The government read the

above-noted terms of the agreement into the record during the hearing, and Moore confirmed the

accuracy of those terms. At the hearing, Moore further admitted “that while on pretrial release

. . . , he committed the offense of conspiring to possess with intent to distribute heroin.” The

district court subsequently accepted Moore’s guilty plea.

B.     Sentencing

       After the change of plea, the United States Probation Office issued a Presentence Report

(PSR) that calculated Moore’s Guidelines range as 135 to 168 months of imprisonment. Moore

subsequently submitted a sentencing memorandum in which he raised various arguments in favor

of an unspecified, below-Guidelines sentence. One of those arguments concerned the need to

avoid sentencing disparities between Moore and his codefendants, and between Moore and

heroin offenders nationally. The government’s initial sentencing memorandum recommended a

term of imprisonment of 135 months—the bottom of the applicable Guidelines range. After

defense counsel asserted that this recommendation was at odds with their plea negotiations,



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however, the government submitted an addendum recommending a below-Guidelines sentence

of 105 months of imprisonment.

       The district court subsequently held a sentencing hearing in June 2015. Neither Moore

nor his defense counsel raised any objections during the hearing to anything in the PSR. After

adopting the factual findings in the PSR, the court acknowledged Moore’s written request for a

below-Guidelines sentence. The court also recognized the government’s written request for a

sentence of 105 months of imprisonment.

       Moore’s defense counsel then orally advocated for a sentence less than 105 months of

imprisonment, making several arguments in support of that request. One of those arguments was

specifically premised on the need to avoid sentencing disparities. Moore’s counsel particularly

noted that the average variance below the Guidelines range for heroin sentences nationwide is

24 months.

       After Moore made a brief statement, the district court stated that it “will keep these

arguments, on both sides, in its mind as it goes through this.” Following a discussion between

the court and counsel concerning one of the sentencing enhancements, the court sentenced

Moore to “a term [of imprisonment] of 90 months on Count 1, followed by 15 months for

defendant’s pretrial release violation pursuant to 18 United States Code, Section 3147, for a total

of 105 months.” This total term of imprisonment is 30 months below the bottom of Moore’s

Guidelines range.

       When it listed a series of mitigating factors, the district court did not include any

reference to Moore’s argument regarding sentencing disparities.          The court did reiterate,

however, that it had “consider[ed] the parties’ recommendations.”         Before concluding the

hearing, the court asked the parties if they had “any objection to the sentence just pronounced



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Case No. 15-3695, United States v. Moore


that have not been previously raised.” Both the government’s counsel and Moore’s counsel said

that they did not. Despite styling its oral sentence as two separate terms of imprisonment, the

subsequently issued judgment details only one term of 105 months of imprisonment for Count

One. This timely appeal followed.

                                         II. ANALYSIS

A.     Standard of review

       “Sentences in criminal cases are reviewed for both procedural and substantive

reasonableness.” United States v. Morgan, 687 F.3d 688, 693 (6th Cir. 2012). When reviewing

a sentence for procedural reasonableness, “[w]e must ensure that the district court (1) properly

calculated the applicable advisory Guidelines range; (2) considered the § 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 chosen sentence, including any rejection of the parties’

arguments for an outside-Guidelines sentence and any decision to deviate from the advisory

Guidelines range.” United States v. Petrus, 588 F.3d 347, 351–52 (6th Cir. 2009). “The

sentence may be substantively unreasonable if the district court chooses the sentence arbitrarily,

grounds the sentence on impermissible factors, or unreasonably weighs a pertinent factor.”

United States v. Brooks, 628 F.3d 791, 796 (6th Cir. 2011).

       We generally apply the abuse-of-discretion standard when reviewing sentences for

substantive and procedural reasonableness. United States v. Bass, 785 F.3d 1043, 1050 (6th Cir.

2015) (citing Gall v. United States, 552 U.S. 38, 41 (2007)). But when a defendant fails to

“object to the sentence upon inquiry from the district court,” we review the procedural

reasonableness of the sentence under the plain-error standard. United States v. Solano-Rosales,

781 F.3d 345, 351 (6th Cir. 2015); see also Fed. R. Crim. P. 52(b). To prevail under this latter


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standard, “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. Wallace, 597 F.3d 794, 802 (6th Cir. 2010).

B.     Moore’s challenges to his sentence

       Moore raises two arguments challenging the reasonableness of his sentence. We analyze

each in turn.

       1. Moore’s 18 U.S.C. § 3147 argument

       Moore first contends that the district court erred in sentencing him to 15 months of

imprisonment based on 18 U.S.C. § 3147. Under that section, “[a] person convicted of an

offense committed while released . . . shall be sentenced, in addition to the sentence prescribed

for the offense[,] to . . . a term of imprisonment of not more than ten years if the offense is a

felony.” 18 U.S.C. § 3147. Moore asserts that § 3147 should not apply to his case because the

only offense that he pleaded guilty to was Count One of the superseding indictment in his first

case, which refers to conduct predating his pretrial release in December 2013. By this logic,

Moore was never “convicted of an offense committed while released,” but only of an offense

committed prior to his pretrial release. Id.

       The parties dispute whether Moore’s claim is appropriately characterized as a procedural

or a substantive challenge. Appropriate categorization might alter the applicable standard of

review. We need not decide this controversy, however, because Moore has waived his challenge

to the application of 18 U.S.C. § 3147.

       Caselaw recognizes a distinction between waiver and forfeiture. See United States v.

Olano, 507 U.S. 725, 733 (1993). “Whereas forfeiture is the failure to make the timely assertion

of a right, waiver is the intentional relinquishment or abandonment of a known right.” Id.

(citation and internal quotation marks omitted). Challenges asserting rights that have been
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waived “are not reviewable.” United States v. Aparco-Centeno, 280 F.3d 1084, 1088 (6th Cir.

2002).

         In his plea agreement, Moore acknowledged that he was subject to an additional term of

imprisonment of up to 10 years under 18 U.S.C. § 3147 because he had committed a separate

felony offense while on pretrial release. He also agreed that, because he had committed the

offense of conspiring to possess heroin with the intent to distribute the drug while on pretrial

release in this case, he was subject to the statutory sentencing enhancement under 18 U.S.C.

§ 3147.    Moore reiterated these positions during his change-of-plea hearing.      His repeated

stipulations in the plea agreement and during the change-of-plea hearing to the applicability of

§ 3147 demonstrate that Moore has intentionally relinquished his claim regarding § 3147’s

propriety. See United States v. Mabee, 765 F.3d 666, 671 (6th Cir. 2014) (concluding that,

“where the defendant has ‘explicitly agreed’ that a particular guideline calculation or

enhancement applies to his sentence, any challenge to that enhancement on appeal is waived”

(citation omitted)).

         Moore’s only rebuttal against waiver is that “[t]he 15 month portion of the sentence

cannot be validly based on [18 U.S.C. § 3147] regardless of what counsel thought.           Such

agreement, which is contrary to law, is an illegal provision of the overall plea agreement (or

contract) and this provision is void ab initio.” Essentially, Moore asserts that this claim—unlike

a host of others—is incapable of being waived. Tellingly, however, Moore fails to cite any

authority to support this contention. We can discern no reason why this claim should be barred

from waiver when fundamental rights like a defendant’s right to a jury trial can be waived. See

Olano, 507 U.S. at 733 (noting that a “defendant who enters a valid guilty plea waives” his right

to trial). Because Moore’s argument against the waiver of his § 3147 claim is unpersuasive, we



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decline to address the merits of this claim. See United States v. Malone, No. 15-3765, 2016 WL

1696871, at *3 (6th Cir. Apr. 27, 2016) (“We will not review an issue on appeal that has been

waived.”).

       2. Any error committed by the district court in not explaining its rejection of
          Moore’s sentencing-disparities argument did not affect his substantial
          rights

       Moore also asserts that the district court erred by not addressing the sentencing-

disparities argument that he raised in support of a lower sentence. “It is well established that, as

part of its sentencing procedure, a court must consider all non-frivolous arguments in support of

a lower sentence. However, our cases are less than clear as to what must be the product of that

consideration in order to allow for meaningful appellate review of the court’s reasoning.” United

States v. Gunter, 620 F.3d 642, 645–46 (6th Cir. 2010) (internal citation omitted).

       On the one hand, this court has held that “[w]hen a defendant raises a particular,

nonfrivolous argument in seeking a lower sentence, the record must reflect both that the district

court considered the defendant’s argument and that the judge explained the basis for rejecting it.”

United States v. Wallace, 597 F.3d 794, 803 (6th Cir. 2010) (quoting United States v. Gapinski,

561 F.3d 467, 474 (6th Cir. 2009)) (brackets omitted). This language could be interpreted to

require the district courts to explicitly explain their reasons for rejecting each of the defendant’s

nonfrivolous arguments.

       On the other hand, this court has “held that a district court’s failure to address each

argument of the defendant head-on will not lead to automatic vacatur if the context and the

record make the court’s reasoning clear.” United States v. Petrus, 588 F.3d 347, 352 (6th Cir.

2009) (brackets, citation, and internal quotation marks omitted); see also United States v. Taylor,

696 F.3d 628, 634 (6th Cir. 2012) (noting the same principle); Gunter, 620 F.3d at 646 (rejecting

a formulaic approach in which the district “court must respond to mitigation arguments point-by-
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point, a la ‘You have argued A; I am not persuaded because B. You have argued X; I am not

persuaded because Y,’” and concluding that “[w]e are to focus less on what the transcript reveals

that the court said and more on what the transcript reveals that the court did”). These two strands

of pronouncements are hardly the model of clarity.

       The (perhaps too subtle) distinction between these statements appears to have generated

some confusion—or at the very least imprecision—in our caselaw about what exactly, at a

minimum, a district court is required to do. Compare United States v. Lytle, 565 F. App’x 386,

391 (6th Cir. 2014) (“A district court is required to consider a defendant’s non-frivolous

argument that seeks a lower sentence.” (citing Wallace, 597 F.3d at 803)), with United States v.

Woods, 529 F. App’x 614, 617 (6th Cir. 2013) (“In a case where ‘a defendant raises a

particular[, nonfrivolous] argument in seeking a lower sentence, the record must reflect both that

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

rejecting it.’” (quoting Wallace, 597 F.3d at 803) (brackets in original)); see also Petrus,

588 F.3d at 359 (Gilman, J., dissenting) (noting that the caselaw in this area exhibits a

“contradiction between the articulation of the law and its actual application [that] fails both to

provide meaningful guidance to the district courts and to give notice to criminal defendants of

their rights at sentencing”).

       In an attempt to synthesize these pronouncements, we offer the following interpretation

of this somewhat murky caselaw. To avoid having a sentence vacated based on procedural

unreasonableness, the record must reflect both (1) that the district court considered a defendant’s

nonfrivolous argument for a particular sentence, and (2) why that argument was rejected. See

Wallace, 597 F.3d at 803; Petrus, 588 F.3d at 352. The court’s consideration of the argument

and its reasons for rejecting the same need not, however, always be explicit or specific; the



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record might be sufficient for us to extract this information implicitly and contextually. See

Taylor, 696 F.3d at 635 (noting that, although “[t]he district judge would have done well to

expressly mention why” the defendant’s argument for a below-Guidelines sentence lacked merit,

the record explained the rejection “by implication”); United States v. Chiolo, 643 F.3d 177, 184

(6th Cir. 2011) (distinguishing Wallace and affirming an above-Guidelines sentence because

“[t]he sentencing rationale . . . implicitly responds to the nature of [the defendant’s] non-

frivolous arguments, and this is determinable from the hearing transcript”); Petrus, 588 F.3d at

352 (noting that “the context and the record” can “make the court’s reasoning clear”).

          If this standard seems nebulous, the fault lies with the constellation of our prior published

opinions, which we are bound to follow until they are overruled. See Sierra Club v. Korleski,

681 F.3d 342, 354 (6th Cir. 2012) (“Sixth Circuit Rule 206(c) is unequivocal: Reported panel

opinions are binding on subsequent panels. Thus, no subsequent panel overrules a published

opinion of a previous panel.” (citation omitted)). An en banc panel of this court, unencumbered

by our discordant precedents, would be the best (and perhaps only) vehicle to definitively resolve

any lingering confusion and provide more clarity to the district courts and criminal defendants.

For the time being, we again “caution . . . that whenever a district court requires us to infer its

bases for rejecting arguments, the district court greatly increases the risk of remand. The better

practice is to give explicit reasons for rejecting all non-frivolous arguments.” Chiolo, 643 F.3d

at 185.

          We now turn to the application of the above-described framework to the present case. As

an initial matter, we note that the government does not contend that Moore’s argument was

frivolous. But because neither Moore nor his counsel objected when given an opportunity to do




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Case No. 15-3695, United States v. Moore


so after the sentence was imposed, we review this procedural-reasonableness claim under the

plain-error standard. See United States v. Solano-Rosales, 781 F.3d 345, 351 (6th Cir. 2015).

       The first question is whether the record demonstrates that the district court considered

Moore’s sentencing-disparities argument. One indication that it did so is that, shortly after

Moore’s counsel advanced the argument, the court noted that it “will keep these arguments, on

both sides, in its mind as it goes through this.” The court also stated, after imposing Moore’s

sentence, that it had “consider[ed] the parties’ recommendations.” Most importantly, the court

sentenced Moore to a total term of imprisonment that was 30 months below his Guidelines range.

This goes a long way toward demonstrating that the court considered Moore’s argument, which

included the assertion that the national average downward variance from the Guidelines range

for a heroin offender was 24 months. The fact that the court varied by an amount greater than

this average, when combined with the court’s two statements noted above, reasonably establishes

that it considered Moore’s sentencing-disparities argument, despite his request for a sentence

even lower than what the court ultimately imposed.

       But whether the record demonstrates (even implicitly) why the district court rejected

Moore’s sentencing-disparities argument for a sentence below 105 months is a closer question.

Even if we were to agree with Moore on this point, however, he has not carried his burden of

demonstrating that this supposed error affected his substantial rights.      See Solano-Rosales,

781 F.3d at 351. A sentencing error affects a defendant’s substantial rights when “there is a

reasonable probability that the defendant’s sentence would be different absent the error.” See

Molina-Martinez v. United States, 136 S. Ct. 1338, 1341–42, 1349 (2016) (concluding that “a

reasonable probability that the district court would have imposed a different sentence . . . is all




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Case No. 15-3695, United States v. Moore


that is needed to establish an effect on substantial rights for purposes of obtaining relief under

Rule 52(b)”).

       In the present case, Moore’s sentencing-disparities argument included the contention that

the average variance for heroin offenders was 24 months below the Guidelines range. The

district court went even further in deciding to sentence him to a term of imprisonment 30 months

below his Guidelines range. On these facts, we conclude that there is no reasonable probability

that Moore’s sentence would have been lower even if the court’s alleged error had not occurred.

       Moore counters that United States v. Wallace, 597 F.3d 794 (6th Cir. 2010), supports his

argument that the district court’s failure to explain why it rejected his argument was plain error.

But Wallace is distinguishable. In Wallace, this court applied the plain-error standard and

vacated a defendant’s within-Guidelines sentence on account of the district court’s failure to

acknowledge the defendant’s main argument in support of a below-Guidelines sentence. See

597 F.3d at 806–08. Wallace’s holding, however, was limited to within-Guidelines sentences.

See id. at 807 (concluding, in the context of a within-Guidelines sentence, that the district court’s

error affected the defendant’s substantial “right to meaningful appellate review”). This court

subsequently confirmed as much. See United States v. Pritchard, 392 F. App’x 433, 439 (6th

Cir. 2010) (“This Court in Wallace extended the analysis of United States v. Blackie, 548 F.3d

395 (6th Cir. 2008), which held that failure to explain how a Defendant’s nonfrivolous argument

for a lower sentence was taken into account in imposing an above-guidelines sentence [affected a

substantial right], to cover within-guidelines sentences as well.”).

       Accordingly, in the context of the below-Guidelines sentence confronting us today, we

are not bound by Wallace’s conclusion that the failure of a district court to explain why it

rejected a defendant’s nonfrivolous argument for a lower sentence necessarily affects a



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Case No. 15-3695, United States v. Moore


defendant’s substantial rights. Moore has failed to convince us otherwise. He has not cited (nor

are we aware of) any case in which a defendant received a below-Guidelines sentence and, after

applying the plain-error standard, this court subsequently vacated the sentence on the ground that

the district court failed to adequately explain why it rejected the defendant’s nonfrivolous

argument for a lower sentence. We therefore conclude that Moore’s sentencing-disparities claim

crumbles under the weight of the plain-error standard of review. See Molina-Martinez, 136 S.

Ct. at 1341–42; Solano-Rosales, 781 F.3d at 351.

                                    III.    CONCLUSION

        For all of the reasons set forth above, we AFFIRM the judgment of the district court.




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