                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0105n.06

                                            No. 08-1399                                  FILED
                                                                                     Feb 11, 2011
                            UNITED STATES COURT OF APPEALS                     LEONARD GREEN, Clerk
                                 FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )
          Plaintiff-Appellee,                             )
                                                          )
v.                                                        )   On Appeal from the United States
                                                          )   District Court for the Eastern
DEREK PHOENIX,                                            )   District of Michigan
                                                          )
          Defendants-Appellant.                           )




Before:          BOGGS and COOK, Circuit Judges; and CARR, District Judge.*


          PER CURIAM. Derek Phoenix appeals his prison sentence of 215 months, which the district

court imposed after Phoenix pled guilty to distributing cocaine base, in violation of 21 U.S.C. § 841.

He challenges the procedural and substantive reasonableness of his sentence on the ground that the

district court did not respond to his remarks about the crack/cocaine sentencing disparity and his

status as a career offender. Because we find no reversible error, we affirm.



                                                  I

          Phoenix sold small quantities of crack cocaine to a government informant in May and June

2007. After obtaining a search warrant, police found drugs and several firearms (including an assault

          *
         The Honorable James G. Carr, United States District Judge for the Northern District of Ohio,
sitting by designation.
No. 08-1399
United States v. Phoenix

rifle) at his residence. In July 2007, a grand jury returned an indictment charging Phoenix with two

counts of distribution of cocaine base, in violation of 21 U.S.C. § 841, and one count of being a felon

in possession of a firearm, in violation of 18 U.S.C. § 922(g). Phoenix pled guilty to Count Two of

the indictment (distribution of cocaine base, in violation of 21 U.S.C. § 841) on November 28, 2007.

In the plea agreement, the parties stipulated to the facts underlying all three charges of the

indictment, as well as the seizure of 0.56 grams of cocaine base and 388.81 grams of marijuana at

Phoenix’s residence. The plea agreement also contained an appeal waiver provision: “If the sentence

imposed falls within the guideline range . . . defendant waives any right to appeal his conviction.”

        In his plea agreement, the government calculated his offense level as 24, with a criminal

history category of III. Because Phoenix accepted responsibility, there was a 3-level reduction,

bringing Phoenix to a total offense level of 21. Under the 2007 Guidelines, this calculation would

have resulted in a sentencing range of 46-57 months. Because he had a prior drug felony and a prior

violent felony, however, Phoenix qualified as a career offender. Under the United States Sentencing

Guidelines § 4B1.1, a career offender’s offense level is determined by the maximum sentence of the

instant offense. Because Phoenix was held responsible for a small quantity of crack and had a prior

drug felony, his statutory maximum penalty was thirty years. 18 U.S.C. § 841(b)(1)(C). Thus, his

offense level became 34, with a criminal history category of VI. After a three-level reduction for

acceptance of responsibility, the government calculated his Guidelines range as 188-235 months.

After the district court accepted Phoenix’s guilty plea, the Probation Department prepared a

presentence report (PSR), which arrived at the same 188-235 month range. The PSR found no

aggravating or mitigating factors that would warrant a departure.

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United States v. Phoenix

       Phoenix was sentenced on March 19, 2008. At the hearing, defense counsel commented on

Phoenix’s relative youth, the fact that—despite his substantial criminal history—he had never been

subject to severe punishment, and mentioned that his Guidelines sentence was lengthier than

necessary because of the crack/cocaine disparity. On this last subject, defense counsel said:

                      . . . because of the, I’ll call it anomalies in the guideline scoring of
       crack cocaine, that works out to be 51.06 kilograms of marijuana because there was
       3.81 grams of crack cocaine.
                      What we have here is a man . . . who is a minor crack dealer.
       ....
                      [T]he career offender designation triples the crack guidelines, it triples
       if not quadruples the guidelines. Surely a multiplier based on the fact it’s crack
       cocaine then a multiplier based on the fact that it’s a career offender.

In concluding, Phoenix’s counsel said, “He’s going to have a long long time. I would suggest to the

court the 235 end of it is almost 20 years and I just don’t view that as being a sentence that’s

necessary. The court then heard from the prosecutor, who emphasized Phoenix’s criminal history.

After listening to both sides, the court expressed its concerns about Phoenix’s record, and the fact

that his prior punishment had been so lenient. The court explained:

                      . . . for each of the earlier offenses in the gentleman’s life, it may have
       created a false expectation about the tolerance of the criminal justice system for
       misconduct.
       ....
                      And altogether too often we see criminal defendants here who have
       . . . received extensive lenient treatment . . . only to be flabbergasted by the
       consequences that follow the federal criminal justice system. . . . [Phoenix] arrives
       here on his fourth felony conviction. . . .
                      I agree that this is not a circumstance where we necessarily needs [sic]
       to meet the high end of the guidelines, but clearly we should be at the midpoint.
                      This gentleman’s criminal history record reflects continuous inability
       to discontinue his criminal misconduct . . . . And, at best, reflects a risk to
       community safety.


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United States v. Phoenix

The court also briefly recognized its discretion to deviate from the Guidelines and noted that “I’ve

given separate consideration” to the 18 U.S.C. § 3553(a) factors. The court then imposed a sentence

of 215 months of imprisonment—in the middle part of Phoenix’s 188-235 month Guidelines range.

Phoenix timely appealed.



                                                 II

        As a general rule, we review all sentences under the deferential abuse-of-discretion standard.

Gall v. United States, 552 U.S. 38, 41 (2007). When a party fails to object to a procedural defect, we

review claims of procedural unreasonableness for plain error. United States v. Vonner, 516 F.3d 382,

385-86 (6th Cir. 2008) (en banc). We review de novo the question of whether a defendant waived

his right to appeal his sentence in a plea agreement. United States v. Murdock, 398 F.3d 491, 496

(6th Cir. 2005).



A. Whether the appeal waiver bars review

        “When a [d]efendant waives his right to appeal his sentence in a valid plea agreement, this

Court is bound by that agreement and will not review the sentence except in limited circumstances.”

United States v. Smith, 344 F.3d 479, 483 (6th Cir. 2003) (citation and quotation marks omitted)

(alteration in original). However, we have recognized that, “the government can forfeit a waiver

argument by failing to raise it in a timely fashion.” Hunter v. United States, 160 F.3d 1109, 1113

(6th Cir. 1998). Because the government has conceded that the appeal waiver is invalid in the



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No. 08-1399
United States v. Phoenix

circumstances of this case, we deem the argument waived and consider the merits of Phoenix’s

appeal.



B. Whether Phoenix’s sentence is unreasonable

          Phoenix does not raise any argument that the district court did not fully consider his

arguments regarding his youth or the fact that his prior lenient punishments had given him an inflated

sense of the law’s tolerance for drug dealing. On appeal, he argues only that his sentence was

unreasonable because the court did not address his statements regarding the crack/cocaine sentencing

disparity and that, combined with the career-offender provision, that disparity leads to a sentence that

is longer than necessary.1

1. Whether the sentence is procedurally unreasonable

          “[F]ailing 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—including an


          1
         The government expressed some incredulity at oral argument as to why the crack/cocaine
argument was being raised at all because Phoenix was sentenced as a career offender in accordance
with USSG § 4B1.1(b). We note that district courts have authority to consider the crack/cocaine
sentencing disparity and vary accordingly, even in sentencing career offenders, United States v.
Michael, 576 F.3d 323, 327 (6th Cir. 2009); see also United States v. Corner, 598 F.3d 411 (7th Cir.
2010) (en banc) (reversing an earlier holding that Kimbrough did not apply to § 4B1.1(b), in light
of general consensus to the contrary). However, in this case, the government is correct. Phoenix’s
offense level was set at 34 because the statutory maximum for his crime was thirty years. See 18
U.S.C. § 841(b)(1)(C). Because that penalty provision makes no distinction between crack and
cocaine quantities, the controversial sentencing disparity between crack and cocaine was not relevant
to his Guidelines range. However, the district court was free to vary categorically based on any other
policy disagreements. See United States v. Herrera-Zuniga, 571 F.3d 568, 583–84 (6th Cir. 2009).

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No. 08-1399
United States v. Phoenix

explanation for any deviation from the Guidelines range” will cause a sentence to be procedurally

unreasonable. United States v. Camacho-Arellano, 614 F.3d 244, 246–247 (6th Cir. 2010) (second

alteration in original) (quoting Gall, 552 U.S. at 51). Phoenix argues that his sentence is

procedurally unreasonable because the district court did not adequately explain its reasons for

rejecting his argument that the scoring of crack/cocaine, combined with his designation as a career

offender, produced a sentence greater than necessary to achieve the goals of sentencing.

        In making this argument, Phoenix faces a considerable challenge because he must show that

the district court committed plain error rather than merely an abuse of discretion. Under our decision

in United States v. Bostic, 371 F.3d 865 (6th Cir. 2004), if a defendant is given a fair opportunity to

object to his sentence and fails to do so, plain error review applies on appeal. Although there is some

leeway in the exact phrasing, Bostic directs courts to “ask the parties whether they have any

objections to the sentence just pronounced that have not previously been raised.” 371 F.3d at 872.

In this case, the court asked, “[defense counsel], any objections or questions concerning the terms

of the sentence imposed?” This statement is sufficient under Bostic.2

        To establish plain error, 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.’” Vonner, 516 F.3d at 386 (quoting United States v.

Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)). We have noted how difficult it is for defendants to



        2
        We held that a similar instruction, “any specific objections that you would make to the
sentence imposed?” warranted plain error review under Bostic. United States v. Wallace, 597 F.3d
794, 802 (6th Cir. 2010).

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No. 08-1399
United States v. Phoenix

meet the standard for plain error, finding such error only “where the error is so plain that the trial

judge . . . [was] derelict in countenancing it.” Ibid. (alterations in original) (quoting Gardiner, 463

F.3d at 459).

        In this case, even if the district court erred, that error was not “obvious or clear” because

defense counsel’s remarks could reasonably appear to ask for a within-Guidelines sentence.

Phoenix’s counsel was never explicit about whether he was asking for a variance or simply for

leniency within the Guidelines. He stated, “the guidelines are the guidelines, I understand, but they

are just that, they’re guidelines,” and also, “[i]n this sentence . . . I could ask the court to consider

going less.” Although these statements could have suggested that Phoenix was asking for a variance,

his concluding remark entirely undermines that inference: “I would just suggest to the court the 235

end of it is almost 20 years and I just don’t view that as being a sentence that’s necessary.” These

few remarks have been repackaged on appeal as an argument for a categorical variance, but we must

consider their presentation in the district court. Considering the totality of the transcript, the district

court could reasonably have interpreted Phoenix’s request as one for mere leniency. In that sense,

Phoenix’s counsel was successful. The court noted, “I agree that this is not a circumstance where

we necessarily needs [sic] to meet the high end of the guidelines.” Therefore, if the district court

erred, it was not plain.

        To the extent Phoenix makes the more specific claim that the district court failed to address

his argument that the career-offender provision rendered his sentence greater than necessary

considering the relatively minor nature of his criminal history, we hold that the court was sufficiently

responsive. The district court noted that Phoenix had committed three prior felonies, that he was on

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No. 08-1399
United States v. Phoenix

probation for all of them at the time of his offense, and the presence of weapons in conjunction with

at least one of his drug deals. The court concluded that Phoenix had shown a “continuous inability

to discontinue his criminal conduct . . . . And, at best, reflects a risk to community safety.” These

remarks reflect an understanding of Phoenix’s history and, correspondingly, the extent to which the

Guidelines sentence was necessary. Thus, as we have often noted, “although the district court in this

case might have said more, the law does not require it.” United States v. Petrus, 588 F.3d 347, 356

(6th Cir. 2009) (internal citation and quotation marks omitted).

2. Whether the sentence is substantively reasonable

        A defendant need not object to the substantive reasonableness of his sentence in order to

preserve it for appeal. Thus, we review this claim for an abuse of discretion. United States v.

Wettstain, 618 F.3d 577, 591 (6th Cir. 2010).         We will consider a sentence substantively

unreasonable where the court “select[s] the sentence arbitrarily, bas[es] the sentence on

impermissible factors, fail[s] to consider pertinent § 3553(a) factors or giv[es] an unreasonable

amount of weight to any pertinent factor.” United States v. Gunter, 620 F.3d 642, 647 (6th Cir.

2010) (alterations in original).

        We apply a presumption that a sentence inside the guidelines range is reasonable. Vonner,

516 F.3d at 389. On appeal, Phoenix asserts only that he barely qualified as a career offender.

However, his long criminal history supports an inference that his risk of recidivism is very high.

Phoenix does not appear to possess any mitigating § 3553(a) factors that the district court did not




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No. 08-1399
United States v. Phoenix

consider, nor can he show that the court gave an unreasonable amount of weight to his criminal

history. On balance, therefore, we cannot say that his sentence is substantively unreasonable.3



                                                 III

        Phoenix’s sentence is procedurally and substantively reasonable. We therefore AFFIRM

the district court’s sentence.




        3
         To some extent this case is before this court due to the alleged inadequacy of the sentencing
judge’s explanation of the reasons underlying the sentence. We note that the responsibility for
ensuring the adequacy of the judicial statement of reasons rests not just with the judge, but with
counsel as well. Government counsel plays an especially important role at this point, as its in his
or her interest to avoid an unnecessary appeal.
        Counsel for the defendant likewise has an obligation to his client to make certain that the
judge informs the client fully as to the reasons for the particular sentence. To be sure, the statement
of reasons is an aid to appellate review. But much more importantly, it tells the defendant and the
public just why, in the view of the sentencing judge, the defendant is receiving the sentence that the
judge is pronouncing. If counsel do their job, the judge will be certain to do his or hers.

                                                 -9-
