                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0890n.06

                                            No. 12-6471

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                        FILED
                                                                                   Oct 15, 2013
UNITED STATES OF AMERICA,                        )                            DEBORAH S. HUNT, Clerk
                                                 )
       Plaintiff-Appellee,                       )
                                                 )    ON APPEAL FROM THE UNITED
v.                                               )    STATES DISTRICT COURT FOR THE
                                                 )    WESTERN DISTRICT OF TENNESSEE
KENNETH PATTERSON, SR,                           )
                                                 )
       Defendant-Appellant.                      )


       Before: BOGGS and SUTTON, Circuit Judges; CLELAND, District Judge.*


       SUTTON, Circuit Judge. Kenneth Patterson pled guilty to possession with intent to

distribute 22.15 grams of cocaine base. Two prior drug convictions made Patterson a career

offender. At sentencing, defense counsel argued that a within-guidelines sentence would be unduly

harsh. The district court agreed and varied downward by 68 months, imposing a 10-year sentence.

Patterson claims on appeal that the district court abused its discretion by failing to decrease his

sentence further. We disagree and affirm.


       The presentence investigation report put Patterson at a base offense level of 22, with two

levels added for possession of a weapon. With two felony convictions and one misdemeanor

conviction in the prior 15 years, Patterson faced a criminal history category of IV. But because the



       *
       The Honorable Robert H. Cleland, United States District Judge for the Eastern District
of Michigan, sitting by designation.
No. 12-6471
United States v. Patterson

two prior felonies were drug offenses, the career-offender guidelines applied, giving Patterson a base

offense level of 34 and a criminal history category of VI, yielding a guidelines range of 262 to 327

months.


       At sentencing, the judge found that Patterson should be treated as a career offender. He then

gave a three-level reduction for acceptance of responsibility, which left Patterson with a guidelines

range of 188 to 235 months. That was too long, Patterson’s counsel argued: The prior felony

convictions each were for under .5 grams, and the strict penalties in the career-offender guidelines

should not apply to a low-level, 56-year-old drug addict like Patterson. The judge agreed (to a

point) and imposed a 120-month sentence.


       The judge explained his thinking as follows. On the one hand, Patterson’s criminal history

included a number of convictions for shoplifting and drug offenses, and he had repeat violations

while on parole. R.96 at 35–36, 46. And the amount of crack Patterson had in this case (22.15

grams) was “considerable.” Id. at 43. But, on the other hand, Patterson had a family, and he was

trying to get better. Id. at 44–45. So a bottom-of-the-guideline sentence of 188 months was “just

too much time.” Id. at 47. After “taking all of the [§ 3553(a)] factors . . . into account,” the court

settled on 120 months—68 months below the low end of the guidelines.


       On appeal, Patterson claims that the sentence is excessive, that he deserves less time, that

(in sentencing parlance) the sentence is substantively unreasonable. But appellate courts are rarely

the time or the place to re-weigh the § 3553(a) factors. When the challenge goes only to the length



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No. 12-6471
United States v. Patterson

of the sentence after this balancing of factors, abuse-of-discretion review applies. United States v.

Curry, 536 F.3d 571, 573 (6th Cir. 2008). Within-guidelines sentences receive a presumption of

reasonableness, and that presumption is “even more demanding” when a district court varies

downward and the defendant merely asks for a greater break on appeal. Id. at 573; accord United

States v. Susi, 674 F.3d 278, 290 (4th Cir. 2012) (collecting cases).


          Patterson cannot meet this standard. Yes, if he had not been a career offender, Patterson’s

guidelines range would have been 46 to 57 months. But Patterson does not challenge his status as

a career offender. The district court listened to all of his arguments for a lower sentence, the same

(or basically the same) arguments he makes today. The district court found them convincing but

only to a point and only after concluding that he had a “considerable” amount of crack and that his

decades-long criminal record remained troubling. On this record and in the face of these

explanations, a 68-month downward variance (and no more) readily survives abuse-of-discretion

review.


          For these reasons, we affirm.




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