                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0592n.06

                                           No. 09-4356
                                                                                         FILED
                            UNITED STATES COURT OF APPEALS                          Aug 22, 2011
                                 FOR THE SIXTH CIRCUIT
                                                                              LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,                                )
                                                         )
          Plaintiff-Appellee,                            )
                                                         )
v.                                                       )   On Appeal from the United States
                                                         )   District Court for the Northern
JEROME R. McCASTER,                                      )   District of Ohio
                                                         )
          Defendant-Appellant.                           )




Before:          BOGGS, GILMAN, and COOK, Circuit Judges.

                 PER CURIAM. Jerome McCaster appeals his conviction of possession with intent

to distribute powder and crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and

possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), as well as his

sentence. He challenges his conviction by arguing that evidence procured through a vehicle search

conducted after police officers allegedly smelled marijuana in his car should have been suppressed

because the government presented no evidence that the officers were trained to detect the odor of

marijuana. With respect to his sentence, he argues that the district court failed to recognize its

authority under United States v. Booker, 543 U.S. 220 (2005), to vary from the advisory United

States Sentencing Guidelines (“USSG”) range. Finally, he argues that his counsel was ineffective

for failing to argue for a variance from the Guidelines range.
No. 09-4356
United States v. Jerome McCaster

        We affirm McCaster’s conviction because the district court did not clearly err in determining

that police officers had probable cause to search his vehicle. As to his sentence, although the district

court made statements that—taken out of context—could be interpreted as suggesting the court

lacked the authority to vary from the Guidelines sentencing range in the absence of a motion from

the parties, a review of the record as a whole yields no evidence that the court actually treated the

Guidelines as mandatory or presumptively correct. We defer McCaster’s ineffective-assistance claim

to a collateral proceeding.


                                                   I

        On December 16, 2008, during a traffic stop, Cleveland Police Officers William Mazur and

Jeff Yasenchack discovered a loaded handgun and plastic bags containing powder and crack cocaine

in a cavity under the center console of McCaster’s car. McCaster was indicted for possession with

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

and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). McCaster

moved to suppress evidence seized and statements made to police during the stop, arguing that the

officers lacked probable cause for the warrantless search of his vehicle.

        During the suppression hearing, Officer Mazur testified that he stopped the car because it had

“dark tinted windows and . . . no license plate illumination,” in violation of Cleveland city

ordinances. According to Mazur, when McCaster rolled down the driver-side window, Mazur

smelled burnt marijuana. Officer Yasenchack also smelled marijuana from the passenger-side

window. The officers ordered McCaster and his passenger out of the vehicle and detained them


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No. 09-4356
United States v. Jerome McCaster

while they searched the vehicle. They found a burnt cigar that appeared to be marijuana in the center

console ashtray. Yasenchack then discovered the gun and drugs in a cavity under the center console

cupholder. McCaster and his passenger were arrested and given Miranda warnings. McCaster

voluntarily admitted that the drugs and gun were his.

       McCaster’s counsel argued to the district court that the government presented no “evidence

to support or corroborate that there was any odor of marijuana in the car.” Tests of the cigar were

not produced, and McCaster was not cited for marijuana possession. The district court concluded

that Officer Mazur’s testimony was credible, and that the odor of burnt marijuana emanating from

the vehicle gave the officers probable cause to search the vehicle, including the cavity where the gun

and drugs were found. The court therefore denied the motion to suppress.

       A jury convicted McCaster on all three counts on July 7, 2009.               The Presentence

Investigation Report (“PSR”) calculated a criminal-history score of 13 and a criminal-history

category of VI. Using the 100:1 crack-to-powder-cocaine ratio found in USSG §2D1.1, application

note 10(E), and applying a two-level increase for the presence of the gun, the total offense level was

24. The resulting Guidelines sentencing range was 100–125 months.

       McCaster filed a “Motion Pursuant to 18 U.S.C. Sec. 3553(a) to Impose a 1:1 Crack Cocaine

to Powder Ratio for Base Offense Level.” Citing the example of the district court in United States

v. Gully, 619 F. Supp. 2d 633 (N.D. Iowa 2009), which elected to vary categorically from the crack-

cocaine Guidelines, his counsel argued that the court should apply a 1:1 ratio of crack to powder

cocaine, in lieu of the 1:100 ratio used in the PSR. The former would result in a Guidelines range

of 46–57 months. During the sentencing hearing, counsel also pointed out that the court could use

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No. 09-4356
United States v. Jerome McCaster
a 20:1 ratio. The court denied the motion, citing McCaster’s “repeated commitment to the sale of

drugs, including crack cocaine.” The court stated, “I might under other circumstances give further

thought to the ratio, but this is not the case in my mind.”

        Before pronouncing sentence, the district court stated: “So I’ve got from 100 to 125 months

of discretion, unless there’s a motion for either departure or variance.” Neither the government nor

McCaster’s counsel made a motion. The court later stated: “I will listen to the defendant. I’ve got

25 months of discretion here and so, Mr. McCaster, you may come to the podium, and if you have

anything you wish to say, I would be more than willing to listen to it.” McCaster argued to the court

that “the one to one [ratio] applies because . . . the head attorney general, Eric Holder, and President

Obama, [said] the drugs are the same.” He also asked the court for a variance and told the court, “I

know that the [G]uidelines are advisory since 2005 since Booker.” After McCaster’s allocution, the

court sentenced him to 100 months of imprisonment on each count, with all counts to run

concurrently, to be followed by six years of supervised release. The court stated, “Now, arguably,

[it] should be higher. That’s the lowest I can go on the [G]uidelines, but I am going to make it 100,

not the 125 months or somewhere in between.”

        In a memorandum filed after sentencing, the court detailed McCaster’s history, concluding:

        This defendant has a lengthy criminal record involving the sale of drugs. The
        conviction for which he is to be sentenced involves possession with the intent to
        distribute both crack cocaine and cocaine, plus possession of a firearm and
        ammunition. It is apparent that the previous sentences imposed upon the defendant
        have failed to persuade him to find another way to earn money and support the three
        children whom he has fathered. Against the background as previously set forth
        herein, the Court finds that a sentence of 100 months is necessary to reflect the
        seriousness of the offenses, to promote respect for the law and provide just
        punishment for the offense.

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No. 09-4356
United States v. Jerome McCaster
The court did not mention its discretion to vary below the Guidelines range, but the memorandum

called the Guidelines “advisory.” The court added in a footnote that it had rejected the defendant’s

motion for a categorical variance because “the offense level, calculated at 24, is appropriate against

the background of the defendant’s repeated commitment to the sale of drugs.”


                                                  II

                                   A. The Motion to Suppress

       McCaster appeals the district court’s denial of his motion to suppress evidence resulting from

the search of his vehicle, contending that Officers Mazur and Yasenchack lacked probable cause for

the search. We review the district court’s factual findings on a suppression motion for clear error

and its legal conclusions de novo. United States v. Gross, 550 F.3d 578, 582 (6th Cir. 2008).

Reversal of a district court’s credibility determination requires a “definite and firm conviction” that

the trial court committed a mistake. Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573

(1985). Moreover, to the extent that McCaster presents different arguments on appeal than he argued

below in his motion to suppress, he has waived those issues. United States v. Critton, 43 F.3d 1089,

1093–94 (6th Cir. 1995).

       McCaster does not challenge the validity of the stop itself. He also acknowledges, citing

United States v. Garza, 10 F.3d 1241, 1246 (6th Cir. 1993), that “it is firmly established in the Sixth

Circuit that a marijuana odor emanating from a vehicle supplies probable cause to law enforcement

officers to search the entire vehicle—even the trunk—and any containers within that vehicle which

could be hiding marijuana.” He contends, however, that “the Government failed to provide any


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No. 09-4356
United States v. Jerome McCaster
evidence that the Officers who conducted the search . . . had any experience or training in the

detection of the odor of marijuana.”

        This particular argument was not presented to the district court in McCaster’s motions to

suppress. He argued to the district court that the vehicle search lacked probable cause, that there was

no evidence that there was any marijuana in the car, and that Officer Mazur’s testimony that he

smelled marijuana was not credible. He did not specifically challenge the officers’ qualifications

to identify the smell. McCaster has therefore waived this issue.

        Regardless, the district court did not clearly err in determining that the officers detected the

smell of marijuana in the car. Officer Mazur testified during the suppression hearing that he smelled

marijuana, and McCaster has offered no evidence to suggest that Mazur’s testimony was false. The

court found Mazur credible, and we defer to its credibility assessments. See United States v. Smith,

594 F.3d 530, 535 (6th Cir. 2010). We further note that this circuit has never required an officer

claiming to have smelled burnt marijuana—a common and distinctive odor—to show he had

particular training and experience in detecting marijuana. Cf. United States v. DeLeon, 979 F.2d

761, 765 (9th Cir. 1992) (“[A] warrant cannot be based on the claim of an untrained or inexperienced

person to have smelled growing plants which have no commonly recognized odor.”). What is more,

Officer Mazur testified that he had ten years of experience in the Cleveland Police Department. As

an officer in the Community Services Unit, he explained, he dealt with “[q]uite a bit of drug

activity.”

        As McCaster concedes, if the odor of marijuana emanated from his vehicle, the officers had

probable cause for a warrantless search. See United States v. Foster, 376 F.3d 577, 588 (6th Cir.

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United States v. Jerome McCaster
2004); United States v. Elkins, 300 F.3d 638, 659 (6th Cir. 2002) (citing Garza, 10 F.3d at 1246).

We affirm the denial of McCaster’s motion to suppress evidence resulting from that search.


                                       B. The Booker Claim

       McCaster’s second claim is that the district court failed to recognize its authority to vary from

the advisory Guidelines range, believing itself bound by the Guidelines range unless a party moved

for a variance. This, he argues, violated Booker, which made it clear that the Guidelines are

advisory—whether a party moves for a variance or not. McCaster concedes that his trial counsel

raised no objection to the alleged Booker violation when given the opportunity to do so during

sentencing. We therefore review the district court’s sentencing decision for plain error. United

States v. Phillips, 516 F.3d 479, 486–87 (6th Cir. 2008). McCaster must show an “(1) error (2) that

was obvious or clear, (3) that affected [his] 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) (internal quotation marks and citation omitted).

       Where a district court sentences a defendant as if the Guidelines were mandatory, this court

has found plain error, presumed that the defendant’s substantial rights were affected, and concluded

that sentencing a defendant under a mandatory regime “affected the fairness, integrity or public

reputation of the judicial proceedings.” See, e.g., United States v. Barnett, 398 F.3d 516, 526–30

(6th Cir. 2005). The Supreme Court has further explained that at the level of the sentencing court,

there is no “legal presumption that the Guidelines sentence should apply.” Rita v. United States, 551




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No. 09-4356
United States v. Jerome McCaster
U.S. 338, 351 (2007) (citing Booker, 543 U.S. at 259–60). Thus, a district court must recognize that

it is free to impose a non-Guidelines sentence even if the parties fail to argue for one.

        Even so, a district court is not required to explicitly state on the record that the Guidelines

are advisory. United States v. Bailey, 488 F.3d 363, 367 (6th Cir. 2007). Rather, “[t]he key is

whether the district court demonstrates, though its application of the Guidelines, that it recognizes

that the Guidelines are advisory.” Id. at 367. This court will remand for resentencing only if a

defendant is able to “marshal evidence in support of the position that the district court actually failed

to apply the Guidelines as advisory.” Ibid.; see also United States v. Fitzmorris, 2011 WL 1682891,

at *7 (6th Cir. May 5, 2011) (finding that nothing in the sentencing transcript “hints that the district

court considered the career-offender Guidelines to be mandatory”).

        In this case, the district court made several statements suggesting that its discretion to choose

a sentence was constrained. The court stated, “I’ve got from 100 to 125 months of discretion, unless

there’s a motion for either departure or variance,” “I’ve got 25 months of discretion here,” and

“That’s the lowest I can go on the [G]uidelines.” These statements indicate that, even if the court

recognized the Guidelines were advisory, it might have presumed them to be correct in the absence

of contrary arguments from the parties. That is not what Booker requires. See Rita, 551 U.S. at 351;

see also Nelson v. United States, 555 U.S. 350, 129 S. Ct. 890, 892 (2009) (“The Guidelines are not

only not mandatory on sentencing courts; they are also not to be presumed reasonable.”).

        Despite these statements, a review of the record as a whole demonstrates that the district

court did not actually fail to apply the Guidelines as advisory. First, the record is replete with

references to the “advisory” nature of the Guidelines. The PSR stated that the Guidelines range was

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No. 09-4356
United States v. Jerome McCaster
advisory, as did the court’s sentencing memorandum. Even the defendant noted the advisory nature

of the Guidelines during his allocution. Other evidence also suggests that the court was aware of its

discretion to vary from the Guidelines. McCaster requested that the court vary categorically from

the Guidelines range by using a 1:1 crack-to-cocaine ratio. The court denied this request because

of McCaster’s extensive criminal history, but it acknowledged that it had the authority to vary

categorically from the advisory range and suggested that it might consider such an argument in a

future case. As the government argues, this shows that “the court was well aware of its option not

to impose a Guidelines sentence” but considered a within-Guidelines sentence appropriate.

       We must assess the district court’s admittedly problematic statements about having “25

months of discretion” in light of its decision not to vary categorically from the Guidelines range.

The court made these statements after it had explicitly determined that the Guidelines range was

appropriate and that it would not vary from it by applying a different crack-to-cocaine ratio, which

would have yielded a significantly lower Guidelines range. It then announced that it would exercise

its discretion within the Guidelines range unless the parties offered “a motion for either departure

or variance.” In other words, it gave the parties a chance to make an argument as to why its

independent decision to stay within the Guidelines range was incorrect. The parties offered

none—McCaster’s counsel stated that his “motion was just based on the ratio.” Having deemed the

Guidelines range appropriate, the court then told McCaster that it was “willing to listen” to his

arguments to determine where within that 25-month range the sentence should fall. The district

court’s logic would have been clearer had it not used the words, “a motion,” and had instead asked



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United States v. Jerome McCaster
the parties for any arguments they had for a sentence outside the Guidelines range, and alternatively

for arguments for a sentence within the range. Regardless, that is in effect exactly what the court did.

        Other aspects of the record also suggest that the court was aware of its discretion. The court

justified McCaster’s sentence by explaining why a lengthy sentence was warranted, noting that “the

previous sentences imposed upon the defendant have failed to persuade him to find another way to

earn money.” But it then imposed a sentence of 100 months—the low end of the Guidelines range.

The fact that the court explained the rationale for imposing a harsh punishment, but then chose the

lowest possible within-Guidelines sentence, suggests that the court recognized that a less severe

sentence was on the table, but rejected that option because “[t]he defendant [was] a major recidivist.”

Finally, the court’s stated rationale for McCaster’s sentence demonstrates that the court believed the

100-month sentence was warranted. The court detailed the relevant § 3553(a) factors in its

sentencing memorandum, emphasizing McCaster’s lengthy criminal record. It also declared that the

application of the 1:1 crack-to-cocaine ratio—which would have yielded a significantly lower

Guidelines range—was inappropriate in this case.

        We cannot conclude, based on this record, that the district court committed plain error by

treating the sentencing Guidelines as mandatory or presumptively correct.


                                C. Ineffective Assistance of Counsel

        McCaster’s final claim is that his trial counsel was ineffective for “failing to move for a

variance” from the advisory sentencing Guidelines. We decline to address the ineffective-assistance

claim, deferring it instead to a collateral proceeding. This court “generally will not review an


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United States v. Jerome McCaster
ineffective assistance of counsel claim on direct appeal, as such claims are more appropriately raised

in a post-conviction motion under 42 U.S.C. § 2255 when an adequate record may be developed on

the issue.” United States v. McCarty, 628 F.3d 284, 295 (6th Cir. 2010) (quoting United States v.

Long, 190 F.3d 471, 478 (6th Cir. 1999)).

                                                III

       McCaster’s conviction and sentence are AFFIRMED.




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United States v. Jerome McCaster
        RONALD LEE GILMAN, concurring. The words that the district court used in

pronouncing McCaster’s sentence, specifically its statements that “I’ve got from 100 to 125 months

of discretion, unless there’s a motion for either departure or variance,” “I’ve got 25 months of

discretion here,” and “That’s the lowest I can go in the guidelines” would, in isolation, be clear

grounds for resentencing. See United States v. Mooneyham, 473 F.3d 280, 295 (6th Cir. 2007) (“We

have recognized, in the wake of Booker, that a sentence imposed under mandatory guidelines,

. . . constitutes plain error where it affects substantial rights by prejudicing the defendant.” (internal

quotation marks omitted)). I join the lead opinion, however, because the record as whole shows that

the court recognized that the Guidelines were advisory. But I hope that in the future district courts

will refrain from making similar statements to avoid confusion on appeal about whether the court

understood its discretion under the post-Booker advisory Guidelines regime.




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