               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 19a0614n.06

                                          No. 18-6247

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                  FILED
                                                                                Dec 13, 2019
                                                                            DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                         )
                                                  )
        Plaintiff–Appellee,                       )       ON APPEAL FROM THE
                                                  )       UNITED STATES DISTRICT
v.                                                )       COURT FOR THE EASTERN
                                                  )       DISTRICT OF KENTUCKY
DAVID LEE DAVIS,                                  )
                                                  )
                                                                   OPINION
        Defendant–Appellant.                      )



Before: NORRIS, MOORE, and DONALD, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant David Lee Davis was

sentenced to 210 months of imprisonment and six years of supervised release for violating 21

U.S.C. § 846 by conspiring to knowingly and intentionally distribute Schedule II controlled

substances, oxycodone and oxymorphone, as prohibited by 21 U.S.C. § 841(a)(1). Davis appeals

the reasonableness of his within-Guidelines sentence on both procedural and substantive grounds,

focusing on the district court’s treatment of his career-offender status and his criminal history.

However, Davis ultimately fails to identify procedural error that is plain and to overcome the

presumption of substantive reasonableness. Therefore, we affirm his sentence as reasonable.

                                      I. BACKGROUND

       On May 24, 2018, Davis, along with his codefendant Danny Ray Vanover, was indicted

for conspiring “to knowingly and intentionally distribute Schedule II controlled substances, to

include a quantity of pills containing oxycodone and oxymorphone, in violation of 21 U.S.C.
No. 18-6247, United States v. Davis


§ 841(a)(1), all in violation of 21 U.S.C. § 846.” R. 1 (Indictment at 1) (Page ID #1). At his

rearraignment, Davis entered a guilty plea, R. 35 (Minute Entry for Rearraignment), that the

magistrate judge recommended the district court accept, R. 36 (Recommendation of Acceptance

of Guilty Plea), which the district court did, R. 37 (Order Adopting Recommendation).

       In the plea agreement, Davis admitted the following facts regarding the offense:

              (a) From on or about February 25, 2017, to March 14, 2017, in Whitley
       County, in the Eastern District of Kentucky, the Defendant conspired with others
       to distribute Schedule II controlled substances, to include oxycodone and
       oxymorphone.

              (b) On March 14, 2017, the Williamsburg Police Department conducted a
       search of Danny Vanover’s residence. During that search, oxycodone and
       oxymorphone tablets, drug ledgers, and a digital video recorder attached to an in-
       home security system were seized. Prior to the execution of this search warrant,
       law enforcement reviewed a phone call from the Defendant, who was incarcerated
       at the Whitley County Detention Center. The Defendant appeared to be using
       coded language to inform Danny Vanover about the location of drug-related items
       in Vanover’s residence.

               (c) A warrant was obtained for the content of Danny Vanover’s security
       system digital video recorder (DVR). The DVR recordings began on February 25,
       2017 and continued through March 1, 2017. Approximately 100 drug transactions
       involving Danny Vanover and others were on the recordings. The recordings also
       revealed that the Defendant was present for multiple drug transactions. Customers
       identified from the recordings confirm that the Defendant sold oxycodone and
       oxymorphone from Vanover’s residence.

              (d) In a post-Miranda interview, the Defendant, in reference to the
       timeframe from the DVR recordings, stated that he and Vanover obtained the pills
       that were sold by purchasing prescriptions from other people.

R. 34 (Plea Agreement at 1–2) (Page ID #89–90).

       The Presentence Report (“PSR”) calculated Davis’s recommended imprisonment range as

188 to 235 months under the Guidelines based on a total offense level of thirty-one and Davis’s


                                               2
No. 18-6247, United States v. Davis


criminal history category of VI. PSR at ¶ 111 (Page ID #176). It did not note any factors

warranting a departure or a variance. Id. at ¶¶ 126, 127 (Page ID #179). There were no objections

to the PSR, id. at 34 (Page ID #180), and the district court accepted the recommended sentence

range as correctly calculated, R. 60 (Sentencing Hr’g Tr. at 3) (Page ID #207). Probation

recommended a sentence of 215 months. R. 51 (Sealed Probation Sentencing Recommendation

at 1) (Page ID #137).

         We briefly summarize the PSR calculations. The PSR calculated Davis’s Base Offense

Level as twenty-four based on the amount of oxycodone and oxymorphone involved. PSR at ¶ 29

(Page ID #155). Ten levels were added under the career-offender provisions of the Guidelines.

Id. at ¶ 35 (Page ID #155) (citing U.S.S.G. § 4B1.1(b)(2)). Because Davis had a previous felony

drug offense, he was subject to a thirty-year, instead of a twenty-year, statutory-maximum

sentence.1 21 U.S.C. § 841(b)(1)(C), § 851. Under the Guidelines, this brought Davis’s offense

level to thirty-four. See U.S.S.G. § 4B1.1(b). Three levels were subtracted for acceptance of

responsibility, leading to a Total Offense Level of thirty-one. PSR at ¶ 37 (Page ID #155). Davis’s

criminal history computation was twenty-seven points, falling within a criminal history category

of VI. Id. at ¶¶ 63–64 (Page ID #167). This was primarily due to sentences that he received in

1998 and March 2015 for mostly drug-related convictions in 1998, 2011, 2012, 2013, and 2014

and a sentence in May 2015 for criminal possession of a forged instrument. Id. at ¶¶ 45–46, 48,



         1
           Davis was aware of the increased statutory-maximum sentence based on a previous felony offense at the
time that he entered his guilty plea. The government is required to file an information with the court that a defendant
is subject “to increased punishment by reason of one or more prior convictions.” 21 U.S.C. § 851(a)(1). The
government did so here. R. 32 (Gov’t Notice Regarding Statutory Enhancement at 1) (Page ID #85).

                                                          3
No. 18-6247, United States v. Davis


50, 55–56, 58 (Page ID #156–61, 163–66). The remaining points were for driving while under the

influence, or variants thereof, possession of controlled substances, and other vehicular infractions.

Id. at ¶¶ 47, 52, 53–54 (Page ID #157–58, 161–63). An additional two points were added because

Davis committed the instant offense while on parole. Id. at ¶ 62 (Page ID #167).

       The district court sentenced Davis to 210 months of imprisonment and six years of

supervised release. R. 49 (J. Davis at 2–3) (Page ID #129–30). Davis filed this timely appeal. R.

50 (Notice) (Page ID #135). He argues on appeal that his sentence was procedurally and

substantively unreasonable. Appellant Br. at 19.

                                          II. ANALYSIS

A. Procedural Reasonableness.

       A sentence must be procedurally reasonable. We review for “significant procedural error,

such as failing to calculate (or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence

based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Gall v.

United States, 552 U.S. 38, 51 (2007). Normally, we review the procedural reasonableness of a

sentence for an abuse of discretion, but when the defendant fails to object before the district court,

as here, we review for plain error. United States v. Vonner, 516 F.3d 382, 385–86 (6th Cir. 2008)

(en banc). To satisfy plain error review, 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.’” Id. at 386 (quoting United States v.

Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)). This is an exceptional determination, one we apply


                                                  4
No. 18-6247, United States v. Davis


only “where the error is so plain that the trial judge . . . [was] derelict in countenancing it.” Id.

(alterations in original). Although Davis argues that the district court committed procedural error

when it did not consider his request for a downward departure or variance and “double count[ed]”

his criminal history, Appellant Br. at 21, 23, he does not identify plain procedural error.

       First, Davis contends that the district court procedurally erred when it did not explain why

it was denying his request for a downward departure or variance and a sentence of 150 months of

imprisonment, or in other words, why it applied the career-offender enhancement in light of the

national statistics from the United States Sentencing Commission that defense counsel provided.

Id. at 23–30. To avoid procedural error, the district court “must ‘set forth enough to satisfy the

appellate court that he has considered the parties’ arguments and has a reasoned basis for

exercising his own legal decision-making authority.’” United States. v. Klups, 514 F.3d 532, 537

(6th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)). When a district court

applies the Guidelines and appears to adopt “the Commission’s own reasoning that the Guidelines

sentence is a proper sentence (in terms of § 3553(a)[)],” a long explanation is typically

unnecessary. Rita, 551 U.S. at 356–57; Klups, 514 F.3d at 537 (“[W]hen a sentencing judge

concurs with the Sentencing Commission’s conclusion that a within-Guidelines sentence is

appropriate for a given defendant, the explanation for the sentence generally need not be lengthy

(quoting United States v. Liou, 491 F.3d 334, 338 (6th Cir. 2007))). However, the district court

must address a defendant’s “nonfrivolous reasons for imposing a different sentence” than the one

contemplated by the district court. Rita, 551 U.S. at 357. How much explanation is warranted




                                                 5
No. 18-6247, United States v. Davis


depends on the unique circumstances in each sentencing. Klups, 514 F.3d at 537 (citing Liou,

491 F.3d at 338).

       There is no plain error here because the record shows that the district court considered

Davis’s argument and set forth a reasoned basis for applying the Guidelines. Defense counsel

supplied national statistics that purported to show a national trend of career offenders receiving

below-Guidelines sentences. The district court responded: “So that sounds to me, though, like a

recognition on behalf of perhaps some of my colleagues, that they disagree with the policy

statement that’s implicit in the recommended guideline.” R. 60 (Sentencing Hr’g Tr. at 15) (Page

ID #219). Defense counsel countered that these statistics represented an individualized assessment

of the § 3553(a) factors, rather than idiosyncratic disagreement with the policies behind the career-

offender recommendations, to which the district court said, “[o]kay.” Id. at 16 (Page ID #220).

       The district court then provided a reasoned basis for Davis’s sentence that addressed this

argument. The district court proceeded to walk through each of the § 3553(a) factors to explain

why it was arriving at a Guidelines sentence, which included the career-offender enhancement. Id.

at 19–28 (Page ID #223–32). Given defense counsel’s explanation that the statistics reflect an

individualized approach to § 3553(a), it was not plain error for the district court to rely simply on

its analysis of the factors to reject Davis’s argument. The district court referenced defense

counsel’s statement about the statistics representing an individualized application of the sentencing

factors when it stated, “we [sic] really do think about the person standing in front of me. It’s fair

for your attorney to ask any judge to think carefully about the person and not just formulistically

just use numbers that are recommendations.” Id. at 25 (Page ID #229). The district court also


                                                 6
No. 18-6247, United States v. Davis


recognized, albeit indirectly, that the Guidelines were discretionary. Id. (explaining that judges

should not simply rely on numbers in the recommendations); id. at 26 (Page ID #230) (stating that

it “did not need to go above [the recommended sentencing range],” suggesting that it recognized

it could vary from the recommended sentencing range).

       Davis also characterizes this argument as one that the district court failed to consider

sentencing disparities when it rejected his statistics argument. Appellant Br. at 23–25. But the

district court did consider sentencing disparities, stating that Davis “shouldn’t get a harsher

sentence or a more lenient sentence just because you’re in my courtroom, and I think that’s fairly

addressed by resting ultimately on what’s being recommended, although, after considering all of

the [§] 3553(a) factors.” Id. at 27 (Page ID #231). Thus, Davis’s assertion that the district court

failed to consider sentencing disparities lacks support. And again, it was not plain error when the

district court did not refer to the national-statistics argument at each step of its § 3553(a) factor

analysis. See also United States v. Houston, 529 F.3d 743, 751–52 (6th Cir. 2008) (rejecting a

similar sufficiency-of-the-explanation argument on plain error).

       Davis raises a second procedural argument that the district court “double count[ed]” his

previous felonies when it determined that an increased statutory-maximum sentence applied

pursuant to 21 U.S.C. § 841(b)(1)(C) and 21 U.S.C. § 851 and then used this augmented statutory

maximum to trigger the career-offender provisions of the Guidelines under U.S.S.G. § 4B1.1(b).

Appellant Br. at 22–24. In United States v. Stephens, we stated that we had not yet decided how

to address this “double-counting consequence.” 549 F.3d 459, 468 (6th Cir. 2008) (citing cases

that address the issue in a variety of contexts, including constitutional and statutory ones). But we


                                                 7
No. 18-6247, United States v. Davis


have also noted that this argument is foreclosed by our precedent. See United States v. Lockett,

359 F. App’x 598, 609–10 (6th Cir. 2009) (citing United States v. Branham, 97 F.3d 835, 846 (6th

Cir. 1996)) (summarizing Branham as a case of statutory interpretation of 28 U.S.C. § 994(h)).

We save the reconciliation of our published and unpublished case law for another day with the

benefit of briefing. Davis does not develop this argument or provide any support for it, and so we

do not address it under the doctrine of forfeiture. United States v. Sandridge, 385 F.3d 1032, 1035–

36 (6th Cir. 2004) (“Issues adverted to in a perfunctory manner, unaccompanied by some effort at

developed argumentation, are deemed [forfeited].” (quoting Popovich v. Cuyahoga Cty. Court of

Common Pleas, 276 F.3d 808, 823 (6th Cir. 2002) (en banc))).

       For these reasons, we conclude that Davis fails to show that the district court committed

plain, procedural error.

B. Substantive Reasonableness.

       A sentence must also be substantively reasonable. “The touchstone for our review is

whether the length of the sentence is reasonable in light of the § 3553(a) factors.” United States

v. Tate, 516 F.3d 459, 469 (6th Cir. 2008) (citing United States v. Cherry, 487 F.3d 366, 370 (6th

Cir. 2007)). A within-Guidelines sentence is presumptively reasonable. Vonner, 516 F.3d at 389.

It is a “tall order” for a defendant to overcome this presumption. United States v. Bradley, 897

F.3d 779, 786 (6th Cir. 2018). We review the substantive reasonableness of the sentence for an

abuse of discretion. United States v. Miller, 531 F.3d 340, 352 (6th Cir. 2008) (citing United States

v. Carter, 510 F.3d 593, 600 (6th Cir.2007)). Davis argues that the district court substantively

erred by imposing a middle-of-the-range sentence under the Guidelines because it gave too much


                                                 8
No. 18-6247, United States v. Davis


weight to his criminal history, as demonstrated by the sentencing discrepancy between Davis and

his codefendant Vanover, and failed to weigh appropriately other factors such as national

sentencing disparities and certain mitigating factors. Appellant Br. at 30–37. None of these

arguments are successful.

       First, there is no indication that the district court abused its discretion in how it treated

Davis’s criminal history. Certainly, the district court found Davis’s thirty-year-long criminal

history significant, but it also meaningfully considered the other § 3553(a) factors.        R. 60

(Sentencing Hr’g Tr. at 23–28) (Page ID #227–32). The court particularly emphasized the

seriousness of the instant offense, explaining that Davis participated in a great volume of drug

transactions with dangerous consequences. Id. at 22 (Page ID #226). The court also considered

mitigating factors, such as the fact Davis moved to the area to care for his aging parents and has

some education, but ultimately concluded that there was not “much that’s particularly aggravating

about [Davis’s crime] or mitigating, other than what I’ve already articulated.” Id. at 26 (Page ID

#230). That the district court did not give much weight to the defendant’s poor relationship with

his father or his age (forty-seven years old) as mitigating factors was not an abuse of discretion,

given this statement. See United States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008) (citing United

States v. Ely, 468 F.3d 399, 404 (6th Cir. 2006)).

       Davis turns to his double-counting argument again, arguing that his criminal history was

already accounted for in his Guidelines range without the enhancement of his statutory-maximum

sentence and his career-offender status. Appellant Br. at 32–33. Yet the fact remains that

§ 3553(a) requires the district court to consider Davis’s criminal history, and Davis has not


                                                 9
No. 18-6247, United States v. Davis


demonstrated that the district court in fact gave inordinate weight to that factor. Ultimately, Davis

disagrees with the district court’s decision to apply the statutory-maximum sentence enhancement

under 21 U.S.C. § 851 and the career-offender provision. See id. at 33. But Congress has seen fit

to provide this statutory enhancement, and “the career-offender guideline is on the books, and ‘the

mere fact that a sentencing court has the discretion to disagree with the guidelines on policy

grounds does not mean that it is required to do so.’” United States v. Smith, 881 F.3d 954, 960

(6th Cir. 2018) (quoting United States v. Ekasala, 596 F.3d 74, 76 (1st Cir. 2010)).

        Davis raises a variety of other arguments, none of which are convincing. First, he argues

that his sentence is substantively unreasonable as illustrated by the discrepancy between his

sentence and his codefendant’s. Appellant Br. at 34 (citing United States v. Simmons, 501 F.3d

620, 624 (6th Cir. 2007)). Although “[a] district judge . . . may exercise his or her discretion and

determine a defendant’s sentence in light of a co-defendant’s sentence . . . [t]hat action, however,

would be a discretionary one because the district court is not required to consider that type of

disparity under § 3553(a)(6).” Simmons, 501 F.3d at 624 (emphasis in original) (citations omitted).

The district court’s decision not to consider Vanover’s sentence in fashioning Davis’s does not

amount to an abuse of discretion.2

        Davis also argues that the district court did not consider the disparity between his sentence

and other similar offenders as his national statistics allegedly demonstrated, Appellant Br. at 34,



         2
           Vanover was not sentenced until February 19, 2019—three months after Davis. See R. 66 (Minute Entry
for Vanover Sentencing). Vanover was sentenced to forty-two months of imprisonment and three years of supervised
release. R. 67 (J. Vanover at 2–3) (Page ID #304–05). According to Davis, Vanover was not subject to the § 851
enhancement or career-offender status. Appellant Br. at 15.

                                                      10
No. 18-6247, United States v. Davis


but as explained above, the court did consider such disparities and ultimately concluded that a

Guidelines sentence was the best way to avoid them. See United States v. Mullet, 822 F.3d 842,

854 (6th Cir. 2016) (noting that “the point of guidelines is to reduce disparities”); Houston, 529

F.3d at 752 (citing Simmons, 501 F.3d at 626). We have also stated that a defendant does not rebut

the presumption of substantive reasonableness when he demonstrates that the district court did not

weigh more heavily nationwide sentencing disparities based on national statistics because “general

statistics [ ] cover a multitude of other crimes committed in a multitude of other ways,” and so

general statistics on their own do not create unwarranted sentencing disparities. Mullet, 822 F.3d

at 854 (citing United States v. Waltman, 529 F. App’x 680, 685 (6th Cir. 2013) (per curiam)). Such

is the case here. At sentencing, the only commonalities that defense counsel pointed out between

Davis and other career offenders were the Total Offense and Base Offense Levels. R. 60

(Sentencing Hr’g Tr. at 12–15) (Page ID #216–19). This fails to account for the individualized

assessment of each defendant and their criminal histories. Therefore, Davis does not rebut the

presumption of reasonableness with his proffered statistics.

       Finally, Davis contends that the district court erred when it referred to the death of a

nineteen-year-old in relation to the seriousness of his crime. Appellant Br. at 35. According to

the PSR, Jason Wells died in Vanover’s driveway from an overdose of oxymorphone sixteen days

before Davis was arrested on state drug charges. PSR at ¶¶ 9–11, 18 (Page ID #151, 153). Davis

lived with Vanover and all drug activity captured on the DVR occurred at Vanover’s residence.

Id. at ¶¶ 7–9 (Page ID #150–51). This mention of Wells’s death, for which Davis was never




                                                11
No. 18-6247, United States v. Davis


charged, gives us pause because there was no evidence regarding Wells’s death besides the PSR.3

See generally Klups, 514 F.3d at 537–38 (explaining that district court judges “may consider facts

that they find [during sentencing] under a preponderance-of-the evidence standard” (quoting

United States v. Mendez, 498 F.3d 423, 426–27 (6th Cir. 2007) (per curiam))).

       However, the circumstances of the district judge’s comments indicate that the district court

did not abuse its discretion because it considered Wells’s death as a consequence of drug activity

that generally reflects the seriousness of the instant offense—conspiracy to knowingly and

intentionally distribute oxycodone and oxymorphone.

               It may be the case that individually there were not large quantities of drugs,
       but part of the record includes some surveillance video that was taken. There were
       a hundred drug transactions . . . .

                   And that’s an extraordinary amount of activity as it relates to drug crimes.

                Ultimately, you get how serious this is because you know the consequence
       that is often tragic here. And I mention one name, and that’s Jason Wells, age 19.
       I don’t need to say anymore. You face that. You know what happened there.

               You know, you’re not—I’m not sentencing you for that death, and I want
       to make that clear, but I am recognizing, that you get how serious this is. And even
       in the face of that, on you went, right?

R. 60 (Sentencing Hr’g Tr. at 22–23) (Page ID #226–27). Davis asserts that the district court’s

mention of Wells’s death “clearly had an impermissible impact on his sentencing determination,”

Appellant Br. at 35, but given the context of those comments, it is not clear what that impact was.

Without more, we cannot say that the district court abused its discretion when it mentioned Wells’s




       3
           As previously noted, Davis did not object to the PSR. Id. at 34 (Page ID #180).

                                                         12
No. 18-6247, United States v. Davis


death to illustrate the seriousness of the offense, conspiracy to distribute certain controlled

substances.

       Accordingly, Davis fails to rebut the presumption that his within-Guidelines sentence was

substantively unreasonable.

                                      III. CONCLUSION

       For the reasons set forth above, we AFFIRM the district court’s sentence.




                                              13
