                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit Rule 206
                                            File Name: 07a0199p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                     X
                               Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                      -
                                                      -
                                                      -
                                                         No. 06-5215
          v.
                                                      ,
                                                       >
 DARRELL EVERSOLE,                                    -
                            Defendant-Appellant. -
                                                      -
                                                      -
                                                     N
                     Appeal from the United States District Court
                    for the Eastern District of Kentucky at London.
                   No. 05-00034—Danny C. Reeves, District Judge.
                                          Argued: April 18, 2007
                                    Decided and Filed: May 31, 2007
            Before: MERRITT and GRIFFIN, Circuit Judges; LAWSON, District Judge.*
                                            _________________
                                                 COUNSEL
ARGUED: Michael M. Losavio, Louisville, Kentucky, for Appellant. Andrew Sparks,
ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky, for Appellee. ON BRIEF:
Michael M. Losavio, Louisville, Kentucky, for Appellant. Andrew Sparks, ASSISTANT UNITED
STATES ATTORNEY, Lexington, Kentucky, for Appellee.
    LAWSON, D. J., delivered the opinion of the court, in which GRIFFIN, J., joined.
MERRITT, J. (p. 11), delivered a separate dissenting opinion.
                                            _________________
                                                OPINION
                                            _________________
        DAVID M. LAWSON, District Judge. Darrell Eversole, a 44-year-old resident of London,
Kentucky, was sentenced to 27-¼ years (327 months) in prison for engaging in the life-endangering
enterprise of making methamphetamine. That sentence is at the top end of the calculated Sentencing
Guidelines range of 262 to 327 months as determined by the district court. Eversole appeals his
sentence raising several technical challenges to the manner of calculating his offense level under the

        *
         The Honorable David M. Lawson, United States District Judge for the Eastern District of Michigan, sitting
by designation.


                                                        1
No. 06-5215           United States v. Eversole                                                 Page 2


United States Sentencing Guidelines. We reject the challenges to the offense level calculation. We
also conclude that the district court did not rely on impermissible factors in formulating the sentence,
which was both procedurally and substantively reasonable. Therefore, we will affirm the district
court’s sentencing decision.
                                                   I.
        On January 15, 2004, Eversole was arrested while driving a stolen car on I-75 in Kentucky.
The car contained seven tanks of anhydrous ammonia, and the tanks were leaking. Because this
chemical is highly toxic, the police closed a portion of the freeway for three hours so the area could
be decontaminated by a hazardous waste team. As traffic was backing up, a collision occurred that
resulted in the death of one Roger Bramer, a 71-year-old man from Wyoming, Michigan. Eversole
was taken into state custody but subsequently was released because an indictment was not returned
within sixty days.
        On February 6, 2005, the Laurel County, Kentucky Sheriff’s Department and the United
States Forest Service searched Eversole’s residence in London, Kentucky where he lived with his
wife and two minor children. The search revealed a large quantity of items used in the manufacture
of methamphetamine. Eversole’s wife acknowledged at the time that Eversole manufactured
methamphetamine. The two children were removed from the premises and put in the custody of
child protective services.
        On April 28, 2005, Eversole was indicted for conspiracy to manufacture fifty grams or more
of methamphetamine (Count 1); attempt to manufacture fifty grams or more of methamphetamine
(Count 2); possession of a measurable quantity of pseudophedrine while knowing it would be used
to manufacture methamphetamine (Count 3); and two counts of endangering human life while
illegally manufacturing methamphetamine (Counts 4 and 5). On September 21, 2005, Eversole
entered a plea of guilty to Counts one, four, and five. The other counts were dismissed.
        Sentencing occurred on January 23, 2006. Working from the presentence investigation
report, which used the 2005 version of the United States Sentencing Guidelines Manual, the district
court calculated Eversole’s offense level by first determining the level for each of the counts; then
the court grouped the counts in the manner prescribed by U.S.S.G. § 3D1.2(c), which instructs courts
to group “closely related counts,” to determine the total punishment “[w]hen one of the counts
embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the
guideline applicable to another of the counts.” With respect to the crime of conspiracy to
manufacture fifty grams or more of methamphetamine, the court found that the base offense level
was 34 because the defendant was accountable for more than 150 but less than 500 grams of actual
methamphetamine. See U.S.S.G. § 2D1.1(c)(3) (the drug quantity table). The court added three
levels under U.S.S.G. § 2D1.1(b)(6)(B) because the offense involved the manufacture of
methamphetamine and created a risk of harm to human life, that is, the defendant’s two children.
The resulting offense level for that count was 37.
        As to the endangering human life convictions, the court determined that the base offense
level was 37 under U.S.S.G. § 2D1.10(a)(1), which calls for a level of “3 plus the offense level from
the Drug Quantity Table.” Three levels were added under U.S.S.G. § 2D1.10(b)(1)(A) because the
offense involved methamphetamine. Because the resulting level was 40, these offenses yielded a
higher level than count one, so they were used as the offense level under the grouping rules. See
U.S.S.G. § 3D1.3(a). Three levels were deducted for acceptance of responsibility, yielding a net
offense level of 37.
No. 06-5215           United States v. Eversole                                                   Page 3


       Eversole’s prior criminal record earned him five criminal history points, placing him in
criminal history category III. Entry of these values into the sentencing table produced a guidelines
range of 262 to 327 months. Neither party objected to those calculations.
        Next, the district court entertained allocution from Eversole and his attorney, the attorney
for the government, and two of Eversole’s daughters. The thrust of the defense presentations was
that the defendant had done bad things, he was in great need of drug treatment due to the havoc
methamphetamine has wrought on his life, and he has much to offer his family so he ought not be
locked away in prison for the rest of his life. Defense counsel did not advocate for a specific
sentence, nor did he argue that the sentence should fall at any particular point within the guidelines
range.
        Prior to announcing Eversole’s sentence, the district court recounted the fact that a motorist
had been killed as a result of the traffic pile-up on Interstate Route 75 precipitated by Eversole’s
arrest. It appears that the court’s information came from newspaper accounts, as there is no
discussion of those facts in the presentence report and the attorney for the government was not well
versed in the facts of the incident. The court then observed:
       Now, if this were a civil case, I think the attorneys are familiar with the old case of
       [Pen]noyer v. Neff and how far you can take a negligence action to establish
       responsibility. This type of activity probably wouldn’t even be sufficient to establish
       a viable negligence claim if a civil action were brought. But the reason I point this
       out is to, again, emphasize how the results of these drug activities that we see so
       often, we often think that, you know, well, they don’t really harm anyone but the
       defendant or family members, which we’ve seen here today, those are the ones that
       are truly harmed and that truly suffer the consequences of these actions.
J.A. 88.
       The court then articulated its rationale for the sentence as follows:
       Now, the factors that the Court has to consider in imposing a sentence first are the
       Guidelines. And in this particular case, of course, the guideline range is quite high.
       262 to 327 months is the guideline range. The Court can, of course, impose a – can
       go outside the range because the Sentencing Guidelines are not binding on courts,
       but they are a factor to be considered.
       The other factors that the Court has to consider, of course, include the nature and the
       circumstances of the offense, which I have gone over, as well as the history and the
       characteristics of a particular defendant. None of those factors really bode well for
       Mr. Eversole. When confronted on the two occasions in which he was arrested, the
       first thing he did was attempt to flee, attempt to run. And of course on the second
       occasion of his arrest, he had a large quantity of chemicals and other materials to
       manufacture methamphetamine in the vicinity of some small children, leading to
       Counts 4 and 5 in this case. So at the time the offenses occurred, he certainly didn’t
       have a lot of thought or consideration for other members of his family that are now
       appearing here on his behalf.
       In addition to those factors, of course, the Court has to consider the need for the
       sentence to reflect the seriousness, the true seriousness, of the offense, to promote
       respect for the law and to provide just punishment for the offense, as well as to afford
       an adequate deterrence for future criminal conduct and – and I’ll underline this – to
       protect the public from future crimes of the defendant. Those appear to be the
No. 06-5215            United States v. Eversole                                                   Page 4


        primary factors that need to be considered in this particular case in determining what
        an appropriate sentence should be.
        This is a case probably that would certainly justify a sentence outside the range,
        above the range, but considering that he does have a family that appears to care very
        much about him, more than probably he cares about himself, I’m going to stay within
        the sentencing range in this case. But I am going to sentence at the upper end of the
        range, because I believe that based on all the factors I’ve just outlined, that would be
        the appropriate sentence that should be imposed based on those factors that I have
        just gone through.
J.A. 88-90.
       The court then sentenced Mr. Eversole to concurrent prison terms of 327 months on count
one and 120 months on counts four and five, to be followed by five years of supervised release.
Thereafter, defense counsel was asked if he had any objections to the sentence, to which he
answered “no.” The defendant filed a timely notice of appeal as to his sentence. He does not
challenge his convictions.
                                                    II.
        The defendant challenges his sentence here on three grounds, none of which was raised in
the district court. When a defendant fails to object contemporaneously to an alleged error before
the district court, this court reviews the district court’s decision for plain error. United States v. Ely,
468 F.3d 399, 401 (6th Cir. 2006); United States v. Perry, 438 F.3d 642, 651 (6th Cir. 2006) (citing
Fed. R. Crim. P. 52(b)). “‘To establish plain error, a defendant must show (1) that an error occurred
in the district court; (2) that the error was plain, i.e., obvious or clear; (3) that the error affected
defendant’s substantial rights; and (4) that this adverse impact seriously affected the fairness,
integrity or public reputation of the judicial proceedings.’” United States v. Abboud, 438 F.3d 554,
583 (6th Cir. 2006) (quoting United States v. Wright, 343 F.3d 849, 861 (6th Cir. 2003)). The
touchstone of appellate sentence review, however, is reasonableness. United States v. Booker, 543
U.S. 220, 260-61 (2005). “Where a defendant raises a particular 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.” United States v. Richardson, 437 F.3d 550,
554 (6th Cir. 2006). When no such arguments are raised, as here, “the record must still reflect that
the district court considered the relevant sentencing factors provided in section 3553(a).” Ely, 468
F.3d at 404.
        Two of the defendant’s arguments on appeal relate to alleged Sentencing Guidelines
calculation and application errors. The Sentencing Guidelines range and the manner of arriving at
it remain relevant to our review even after Booker’s refocus on the factors in section 3553(a) to
determine a reasonable sentence. “Even though the Supreme Court declared the guidelines advisory
in Booker, we are still required to remand for resentencing if the district court misapplies the
guidelines.” United States v. Duckro, 466 F.3d 438, 444 (6th Cir. 2006) (citing 18 U.S.C.
§ 3742(f)).
                                                    A.
         The defendant argues first that his Sentencing Guidelines range was overstated because the
district court engaged in double counting, which is inherent in the prescribed application of U.S.S.G.
§ 2D1.10. He believes that because section 2D1.10(a)(1) considers the involvement of
methamphetamine in the offense as an enhancing factor via the drug quantity table, and section
2D1.10(b)(1)(A) requires an additional enhancement due to the involvement of methamphetamine
No. 06-5215           United States v. Eversole                                                   Page 5


in the offense, impermissible double counting results in that a single circumstance leads to two
different enhancements.
        The Guidelines section that applies to counts four and five, which charged endangering
human life while illegally manufacturing a controlled substance in violation of 21 U.S.C. § 858, is
section 2D1.10, which states:
       (a) Base Offense Level (Apply the greater):
       (1) 3 plus the offense level from the Drug Quantity Table in § 2D1.1; or
       (2) 20.
       (b) Specific Offense Characteristics
       (1) (Apply the greater):
       (A) If the offense involved the manufacture of amphetamine or methamphetamine,
       increase by 3 levels. If the resulting offense is less than level 27, increase to level
       27.
       (B) If the offense (i) involved the manufacture of amphetamine or
       methamphetamine; and (ii) created a substantial risk of harm to the life of a minor
       or an incompetent, increase by 6 levels. If the resulting offense level is less than 30,
       increase to level 30.
U.S.S.G. § 2D1.10 (2005).
        It is well established that “impermissible ‘double counting’ occurs when precisely the same
aspect of a defendant’s conduct factors into his sentence in two separate ways.” United States v.
Farrow, 198 F.3d 179, 193 (6th Cir. 1999) (citing United States v. Perkins, 89 F.3d 303, 310 (6th
Cir. 1996)). On the other hand, where separate enhancements “penalize distinct aspects” of the
defendant’s conduct, no double counting will be found. United States v. Perkins, 89 F.3d 303, 307-
10 (6th Cir. 1996). For example, “where a defendant is convicted of transporting stolen firearms as
well as being a felon in possession of firearms for the same act of possession, it would be double
counting to apply an enhancement for stolen firearms to the felon in possession count.” Duckro, 466
F.3d at 445. That is because where “a single aspect of the defendant’s conduct both determines his
offense level and triggers an enhancement,” double counting may occur. Farrow, 198 F.3d at 193.
But where a conceptually distinct kind of harm triggers an enhancement above the base offense
level, no impermissible double counting results. Thus, “where a defendant brandishes a gun in a
bank robbery and is convicted of the bank robbery, an enhancement for brandishing the gun is
appropriate if he is not separately convicted for the use of a gun in a crime of violence, under 18
U.S.C. § 924(c).” Duckro, 466 F.3d at 445.
       A determination of double counting alone will not invalidate a sentence, however, because
“our precedents show that not all instances of double counting are impermissible. . . . [T]the
Sentencing Guidelines expressly mandate double counting under some circumstances through the
cumulative application of sentencing adjustments.” Farrow, 198 F.3d at 194. To determine if
impermissible double counting occurs, we must examine both the text and context of the relevant
Sentencing Guidelines provisions.
        In the present case, the defendant’s base offense level was determined in part by the drug
quantity table, which takes into consideration both the type and quantity of the illegal controlled
substance involved. Eversole was held accountable for 448.1 grams of actual methamphetamine,
falling within U.S.S.G. § 2D1.1(c)(3), which prescribed an offense level of 34 for quantities of
actual methamphetamine between 150 and 500 grams. Coincidently, that same level would apply
to the same quantity of cocaine base. Under the endangerment guideline, three levels are added to
arrive at a base level of 37. Eversole objects to the addition of three more levels authorized by the
guidelines when “the offense involved the manufacture of . . . methamphetamine.” U.S.S.G.
No. 06-5215           United States v. Eversole                                               Page 6


§ 2D1.10(b)(1)(A). He says the fact that the drug happened to be methamphetamine determined
both the base level and the enhancement.
        That same argument was considered and rejected by the Eighth Circuit in United States v.
Fortney, 357 F.3d 818 (8th Cir. 2004). There, like here, the defendant was charged with both
conspiracy to manufacture methamphetamine and endangerment, and his offenses were grouped
based on the most serious offense under the Sentencing Guidelines. The conspiracy offense level
included an enhancement for endangerment under U.S.S.G. 2D1.1(b)(6)(B) (“If the offense (i)
involved the manufacture of amphetamine or methamphetamine; and (ii) created a substantial risk
of harm to (I) human life other than a life described in subdivision (C); or (II) the environment,
increase by 3 levels.”). The court reasoned that no double counting occurred in the determination
of the base offense level for the endangerment count because “only the base offense level from the
Drug Quantity Table in § 2D1.1 was incorporated by reference into the base offense level for his
endangering count in § 2D1.10(a)(1).” Fortney, 357 F.3d at 822. Turning to the question whether
adding another three levels because the drug in question was methamphetamine impermissibly
double counted that factor, the court held:
        As for the three-level increase imposed under § 2D1.10(b)(1)(A), Congress directed
        the Commission to adopt a separate increase for endangering that is caused by the
        manufacture of methamphetamine, and the Commission implemented this mandate
        in Amendment 608. It is not double counting when the Guidelines impose
        cumulative enhancements that reflect “conceptually separate notions relating to
        sentencing,” as § 2D1.10(a)(1) and § 2D1.10(b)(1)(A) do.
Ibid.
         We believe this reasoning is consistent with this Circuit’s precedents. Congress defined
endangering human life while manufacturing or transporting illegal drugs or chemicals as a discrete
offense. See 21 U.S.C. § 858. That offense does not apply only to methamphetamine, and the base
offense level is derived from factors in addition to drug type, namely quantity. The same quantity
of another drug – cocaine base – would yield the same base offense level. However, Congress
directed the Sentencing Commission to include an enhancement specifically for methamphetamine
involvement in crimes of manufacturing and endangerment. See Methamphetamine and Club Drug
Anti-Proliferation Act of 2000, Pub. L. 106-878. That enhancement, incorporated in Amendment
608, U.S.S.G. App. C (Supp. 2002), addresses the unique harm caused by manufacturing
methamphetamine, which Congress determined was greater than with other drugs. See H.R. Rep.
No. 106-878, at 22 (finding that “[t]he methamphetamine epidemic in America differs in kind from
the threat of other illegal drugs because methamphetamine can be made from readily available and
legal chemicals and substances, and because it poses serious dangers to both human life and to the
environment. Additionally, these chemicals and substances are utilized in a manufacturing process
that is unstable, volatile, and highly combustible. Even small amounts of these chemicals, when
mixed improperly, can cause explosions and fires. For every one pound of methamphetamine that
is produced, approximately five pounds of toxic and often lethal waste products may be left behind
at the laboratory site, or disposed of in rivers, kitchen sinks, or sewage systems in an effort to
conceal evidence of illegal manufacturing”). Because the enhancement addresses a conceptually
distinct harm not necessarily taken into account by the base offense level, Perkins, 89 F.3d at 307,
and the enhancement is specifically authorized by the Sentencing Commission following a
congressional directive, Farrow, 198 F.3d at 194, we conclude that no impermissible double
counting occurred.
       The district court did not err in applying the challenged Sentencing Guidelines provision;
therefore, we need not proceed beyond the first step in the plain error analysis with respect to this
claim of error.
No. 06-5215           United States v. Eversole                                                Page 7


                                                  B.
         The defendant next argues that the district court incorrectly grouped the offenses when
determining the total offense level. He contends that the district court violated U.S.S.G. § 3D1.3’s
command that, when closely related counts are grouped together for sentencing purposes, the offense
level applicable to the most serious of the counts comprising the group controls. Because the
conspiracy charge in count one carried a maximum penalty of life in prison, and the endangerment
charges in counts four and five prescribed maximum penalties of ten years each, Eversole believes
that the offense level for the conspiracy charge (level 37) should have predominated over the offense
level for the endangerment counts (level 40). He cites United States v. Brinton, 139 F.3d 718 (9th
Cir. 1998), in support of this argument and asserts that case stands for the proposition that courts
grouping offenses for sentencing purposes must look to the crime with the highest statutory
maximum, not the highest offense level.
       We must reject the defendant’s argument because it contravenes the plain language of the
applicable Sentencing Guidelines provisions. We also read Brinton differently than the defendant.
       Eversole’s crimes were grouped together for sentencing purposes as closely related counts
under U.S.S.G. § 3D1.2(c), which states:
       All counts involving substantially the same harm shall be grouped together into a
       single Group. Counts involve substantially the same harm within the meaning of this
       rule:
       ...
       (c) When one of the counts embodies conduct that is treated as a specific offense
       characteristic in, or other adjustment to, the guideline applicable to another of the
       counts.
U.S.S.G. § 3D1.2.
        Section 3D1.3 instructs courts how to determine the offense level applicable to a group of
closely related counts. That Guideline provides:
       (a) In the case of counts grouped together pursuant to § 3D1.2(a)-(c), the offense
       level applicable to a Group is the offense level, determined in accordance with
       Chapter Two and Parts A, B, and C of Chapter Three, for the most serious of the
       counts comprising the Group, i.e., the highest offense level of the counts in the
       Group.
U.S.S.G. § 3D1.3(a) (emphasis added).
         Eversole pleaded guilty to conspiracy to manufacture fifty grams or more of
methamphetamine, 21 U.S.C. § 846, and endangering human life while illegally manufacturing
methamphetamine, 21 U.S.C. § 858. The conspiracy count carried a statutory sentence of ten years
to life imprisonment, see 21 U.S.C. §§ 841(b)(1)(A), 846, but a base offense level of 34. The
endangerment counts, on the other hand, carried a statutory maximum of ten years imprisonment,
see 21 U.S.C. § 858, and a base offense level of 37. Section 3D1.3(a) of the Sentencing Guidelines
plainly states that the court should look to the highest offense level, not the greatest statutory
penalty, to determine the controlling offense level among the offenses within the group. That is
what the district court did.
No. 06-5215           United States v. Eversole                                                Page 8


        United States v. Brinton does not compel a different result. The court in that case was not
confronted with the task of choosing between the statutory maximum sentence and the higher of two
Sentencing Guidelines ranges to determine the “most serious of the counts comprising the Group,”
as required by U.S.S.G. § 3D1.3(a). That argument was not even raised on appeal. In that case,
Brinton was convicted of manufacturing methamphetamine and endangerment. In discussing the
calculation of Brinton’s offense level, the court observed that manufacturing methamphetamine
carried a potential life sentence and the endangerment count was capped at ten years. It then
observed that “since the [manufacturing counts] have the potential to produce the highest offense
level, the group offense level should be determined under the guideline applicable to those
offenses.” Brinton, 139 F.3d at 722. The court did not calculate the respective offense levels,
however; nor did it explicitly hold that the “seriousness” determination is controlled by the statutory
maximum sentence.
        But if one reads the Brinton court’s dictum as tacitly holding that the count with the “highest
offense level” for purposes of U.S.S.G. § 3D1.3 is the count with the highest statutory sentence, we
must reject that interpretation for two reasons in addition to its departure from the Sentencing
Guideline’s plain language. First, although the statutory maximum sentence certainly will limit the
length of a prison term and may even cabin the guideline range, see U.S.S.G. § 5G1.1(a), (c)(1)
(providing that when the statutory maximum is less than the low end of the guideline range, “the
statutorily authorized maximum sentence shall be the guideline sentence”; and in other cases any
sentence within the range may be imposed as long as it “is not greater than the statutorily authorized
maximum sentence”), it is not the same as nor does it affect the offense level. The offense level is
determined by manifold other factors. The statutory maximum sentence is brought to bear on the
process afterward.
        Second, the statutory maximum sentence on a given count of conviction does not necessarily
limit the total sentence. Rather, under the Sentencing Guidelines schema, “[i]f the sentence imposed
on the count carrying the highest statutory maximum is less than the total punishment, then the
sentence imposed on one or more of the other counts shall run consecutively, but only to the extent
necessary to produce a combined sentence equal to the total punishment.” U.S.S.G. § 5G1.2(d). Of
course, after Booker, this provision is no longer mandatory, but a sentence consistent with it carries
a badge of reasonableness we are bound to consider. See United States v. Ward, 447 F.3d 869, 871
(6th Cir. 2006) (stating that “a sentence that falls within the advisory Guidelines range is given a
rebuttable presumption of reasonableness”) (internal quotes omitted); c.f. United States v. Spano,
476 F.3d 476, 478 (7th Cir. 2007) (stating that “[e]ven though the guidelines are no longer
mandatory, the judge must compute the guidelines range [using U.S.S.G. 5G1.2(d)]. He is not
bound to sentence within it, but if he does the sentence is presumed by us (that is, by the appellate
court) to be reasonable”). The point is that the statutory maximum penalty and the offense level
perform different roles in the sentencing process, and they ought not be confounded.
        In addition, both the Eighth and Tenth Circuits have squarely rejected the defendant’s
interpretation. United States v. Kroeger, 229 F.3d 700, 703-04 (8th Cir. 2000) (“reject[ing]
Kroeger’s argument, and the Ninth Circuit’s approach, because both rest on an erroneous
understanding of the Guidelines. . . . [T]he most serious count is not the count with the greatest
available maximum statutory term of imprisonment; it is the count with the highest offense level”);
United States v. Evans, 318 F.3d 1011, 1020 (10th Cir. 2003) (same).
       We hold, therefore, that when grouping offenses under U.S.S.G. § 3D1.3, the “most serious”
offense shall be determined by looking to the offense levels of the competing counts within the
group, not the statutory maximum penalties for the counts of conviction.
No. 06-5215           United States v. Eversole                                                Page 9


                                                  C.
        The defendant’s third argument does not implicate the Sentencing Guidelines, but focuses
on the facts considered by the district court in formulating its specific sentence. He complains that
the district court erroneously considered Mr. Bramer’s death, as evidenced by the discussion of the
event on the record, which calls into question the propriety of the court’s decision to sentence the
defendant at the high end of the guidelines range. To the extent the district court considered
Mr. Bremer’s death to justify a harsher sentence, Eversole contends this is plain error because
Eversole clearly was not the legal cause of this tragedy. He contends, therefore, that his sentence
was unreasonable.
       The government counters with the argument that Eversole’s sentence was within the
guidelines range and therefore entitled to a presumption of reasonableness. According to the
government, the mere fact that the court mentioned the accident and death is not enough to
overcome the presumption of reasonableness.
        We agree that a sentence “properly calculated under the Guidelines [carries] a rebuttable
presumption of reasonableness.” United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006). The
court of appeals assesses the reasonableness of a sentence against the factors set forth in 18 U.S.C.
§ 3553(a) and in light of Congress’s prime directive that sentences must be “sufficient, but not
greater than necessary, to comply with the purposes set forth” therein. United States v. Bridgewater,
479 F.3d 439, 441 (6th Cir. 2007). The problem with the government’s argument is that the
guideline range in this case was rather vast – nearly five-and-a-half years (65 months) – and it is not
readily apparent to us after carefully reading the record why a 27-year sentence for this forty-two-
year-old offender achieves the congressionally-mandated goals any better than a 22-year sentence
would. If the lower sentence satisfies the statute, then any longer sentence would be greater than
necessary to comply with the congressional purpose. Whether that factor justifies vacating the
sentence, however, turns on our assessment of the sentence’s reasonableness in light of the
legislation and applicable precedent.
         Congress has stated that when the guideline range exceeds 24 months, the sentencing judge
must “state in open court the reasons for its imposition of the particular sentence,” including “the
reason for imposing a sentence at a particular point within the range.” 18 U.S.C. § 3553(c)(1). The
district court here technically complied with that provision, stating, “I am going to sentence at the
upper end of the range, because I believe that based on all the factors I’ve just outlined, that would
be the appropriate sentence that should be imposed.” J.A. 90. However, the “factors . . . outlined”
by the district court included only those in section 3553(a) plus the circumstances of the motorist’s
death.
        Among the factors listed in section 3553(a) are “the nature and circumstances of the
offense.” 18 U.S.C. § 3553(a)(1). The fact of the motorist’s death was a circumstance connected
to the crime, albeit tenuously, and there was no impropriety in the sentencing court’s discussion of
it. The district court did not state that it was enhancing the defendant’s sentence based on that fact,
and the sequence of the court’s discussion suggests that it did not calculate Mr. Bramer’s death into
the sentence. The court mentioned the death after engaging in a colloquy with Eversole’s daughters,
who, although acknowledging that their father should be punished and his drug use adversely
affected their family, implored the court to show mercy. The court then discussed Mr. Bramer’s
death “to make sure that everyone here understands that there are other consequences that flow from
these drug crimes.” J.A. 83. In other words, the court was impressing upon Eversole that he and
his family were not the only immediate or remote victims of Eversole’s actions. The court
recognized that the defendant’s role in causing Bramer’s death “probably wouldn’t even be
sufficient to establish a viable negligence claim if a civil action were brought,” J.A. 88, mistakenly
referring to the case of Pennoyer v. Neff (which is an old civil procedure chestnut dealing with
No. 06-5215           United States v. Eversole                                                Page 10


personal jurisdiction, not proximate cause; the court probably intended to refer to Palsgraff v. Long
Island R.R. Co., 162 N.E. 99, 100 (N.Y. 1928)). Thereafter, the court never revisited the fact of Mr.
Bramer’s death, although it discussed the other circumstances that informed Eversole’s sentence
(e.g., his attempts to evade arrest).
        The record shows that the district court was aware of its obligation to consider all of the
factors in section 3553(a), and it even enumerated them. The court’s discussion of its choice at the
top of the guideline range was truncated, but this court does not require “a ritualistic incantation of
the § 3553(a) factors it considers,” United States v. Chandler, 419 F.3d 484, 488 (6th Cir. 2005)
(internal quotes omitted), or any other specific treatment of its statutory choices. Moreover, the
defendant did not raise – even on appeal – the question of compliance with section 3553(c), and this
court has held that the failure of a district court to follow that statute generally will not amount to
plain error because proof that it affects the defendant’s substantial rights is difficult. United States
v. Hernandez, 2007 WL 128771 (6th Cir. Jan. 17, 2007) (unpublished). It is clear that the lower
court touched all the bases and that its sentence was procedurally reasonable.
        Therefore, to vacate Eversole’s sentence on the present record, we must be convinced that
the sentence was substantively unreasonable. “A sentence may be considered substantively
unreasonable when the district court selects the sentence arbitrarily, bases the sentence on
impermissible factors, fails to consider pertinent § 3553(a) factors or gives an unreasonable amount
of weight to any pertinent factor.” United States v. Collington, 461 F.3d 805, 808 (6th Cir. 2006)
(internal quotes, alterations, and citations omitted). The task of formulating a specific sentence is
committed to the discretion of the district court. An appellate panel’s belief that a particular
sentence is too harsh or too lenient alone will not support a finding of substantive unreasonableness.
        Although the sentence in this case may seem to us to be greater than necessary to fulfill the
statutory goals, given Eversole’s age, the nature of the crime, his criminal record, and the other
section 3553(a) factors, we cannot conclude that the sentence was substantively unreasonable. The
record does not show that the district court made its choice arbitrarily, ignored or over-rated any of
the pertinent factors, or based its sentence on impermissible factors, such as holding the defendant
legally accountable for the motorist’s death. The failure of the defendant to object contributes to
this conclusion; we cannot find that the district court’s sentencing choice at the top of the properly
calculated guideline range amounted to plain error. The review function and authority of the court
of appeals does not extend simply to second-guessing the sentencing decisions of the district courts.
                                                  III.
         We conclude that no impermissible double counting occurred in calculating the offense level
in this case, the counts of conviction were properly grouped under the Sentencing Guidelines, and
the sentence was not based on an impermissible factor. Because we conclude that the defendant’s
sentence was procedurally and substantively reasonable, the defendant’s sentence is affirmed.
No. 06-5215            United States v. Eversole                                                 Page 11


                                         _________________
                                             DISSENT
                                         _________________
        MERRITT, Circuit Judge, dissenting. The crime was caused by the defendant’s addiction
to methamphetamine, as the district court suggests and the record makes clear. I regard a sentence
of almost 30 years for this 44-year-old man as an unreasonable life sentence, and I would require
that the sentence be reduced to a level that considers how long it will take to rehabilitate this man’s
addiction. The District Court should take expert proof and give him a sentence “not greater than
necessary” to cure his addiction by providing the defendant with “needed medical care, or other
correctional treatment” as required by the mandatory federal statutory rules for the “Imposition of
Sentence” for federal crimes, as codified in 18 U.S.C. § 3553(a)(2)(D). In my view this is the kind
of rehabilitative analysis that United States v. Booker, 343 U.S. 220 (2005), requires after Booker
rendered the Sentencing Guidelines merely discretionary. Federal courts should take seriously the
language of the statute and should place its rehabilitative rules above those Guidelines that do not
allow such an analysis. The sentencing courts should forget about the Guidelines when they conflict
with the clear statutory rules. It is clear that the statutory rule limiting punishment to a sentence “not
greater than necessary,” combined with the language of rehabilitation contemplating “medical care
or other correctional treatment” has been cast aside and not even considered in this case. I would
require that these rules be strictly observed and that any Guidelines that do not take this language
into account be set aside in the sentencing process.
        This view is reinforced by the most intelligent, scholarly discussion of criminal responsibility
for addiction that I have read, Stephen J. Morse, Addiction, Genetics and Criminal Responsibility,
69 Law & Contemp. Prob. 165, 205 (2006), who concludes as follows: “Finally, although the
criminal justice system might play a useful role in responding to addiction-related action, non-
criminal, non-judgmental interventions also should play a substantial role. The criminal justice
system response should be limited and reformed to enhance the potential efficacy of treatment
approaches.” The statute’s “not greater than necessary” rule combined with medical treatment of
addiction requires that sentencing judges take into account mitigators like addiction.
        The Guidelines violate § 3553 by forbidding consideration of addiction and most other
significant mitigators. Part H of the Guidelines on “Specific Offender Characteristics” states that
“Drug or alcohol dependence or abuse is not a reason for a downward departure” and forbids
consideration in the sentencing process. (§ 5H1.4.) Part H states the same thing for many other
mitigators — for example, “mental and emotional conditions” such as organic brain damages or low
levels of serotonin (§ 5H1.3), youth or old age (§ 5H1.1), and “family responsibilities” such as a
parent’s need to care for minor children (§ 5H1.6). Part H does not permit the consideration of any
mitigators when assessing “Specific Offender Characteristics.” It is ironic that the Sentencing
Commission thinks that juries are capable of taking mitigators into account but judges are not. In
other areas of analysis of criminal responsibility — for example, death penalty jurisprudence — the
Constitution forbids the use of a sentencing process that proscribes the consideration of addiction
and other mitigators by the sentencer. Lockett v. Ohio, 438 U.S. 586 (1978) (“The Ohio death
penalty statute does not permit the type of individualized consideration of mitigating factors we now
hold to be required by the Eighth and Fourteenth Amendments”). Therefore, in a case like this, the
Guidelines are not a reliable or even a rational guide to sentencing. If the federal judiciary is to
impose just sentences after Booker, it must extricate itself from the prevailing mind set under the
Guidelines that includes almost all conceivable enhancements and aggravators while excluding from
consideration almost all significant mitigating circumstances.
