                                    File Name: 07a0781n.06
                                    Filed: November 7, 2007

                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                          No. 06-2028

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

v.                                                        ON APPEAL FROM THE
                                                          UNITED STATES DISTRICT
KENTRELL O’DANIELS,                                       COURT FOR THE WESTERN
                                                          DISTRICT OF MICHIGAN
          Defendant-Appellant.


                                                     /

Before:          MARTIN, GIBBONS, and SUTTON, Circuit Judges.

          BOYCE F. MARTIN, JR., Circuit Judge. Defendant Kentrell O’Daniels pled guilty to

possession of more than fifty grams of crack cocaine in violation of 21 U.S.C. § 841(b)(1)(A)(iii).

He now appeals his sentence, arguing that it is both procedurally and substantively unreasonable.

For the following reasons, we AFFIRM his sentence.

                                                I.

          On August 23, 2005, members of the Straits Area Narcotics Enforcement Team executed a

controlled purchase of crack cocaine from a residence in Sault Ste. Marie, Michigan. The next day,

another controlled purchase was made from this residence. After this second purchase, the police

obtained and executed a search warrant. Inside the residence, detectives found 928 grams of
No. 06-2028
United States v. O’Daniels
Page 2

marijuana, 58.6 grams of crack, and 55.2 grams of powder cocaine. Kentrell O’Daniels, the

defendant-appellant, and Tredis Lazaell O’Daniels, a co-defendant, lived at the residence.

        On November 14, 2005, a federal grand jury returned an indictment charging Kentrell

O’Daniels with conspiracy to distribute and possession with intent to distribute marijuana, cocaine,

and 50 or more grams of crack cocaine. On March 21, 2006, the government filed a superseding

felony information charging O’Daniels with a single count of possession with intent to distribute 50

or more grams of crack. The same day, O’Daniels pled guilty to the charge in the superseding

information.

        A Presentence Investigation Report was compiled before O’Daniels’s sentencing. That report

lists two prior criminal episodes for which he was convicted and received criminal history points

under the guidelines: (1) delivery of cocaine, for which he received 40 to 240 months; and (2)

possession of a firearm while committing a felony, carrying a deadly weapon with intent to do great

bodily harm less than murder, and assault with intent to do great bodily harm less than murder, for

which he received sentences of 24 months, 42 to 90 months, and 42 to 180 months, respectively.

        The Report calculated O’Daniels’s base offense level two ways: (1) for violation of 21 U.S.C.

§ 841(b)(1)(A)(iii) under Sentencing Guideline § 2D1.1 (c)(4); and (2) as a career offender under

Sentencing Guideline § 4B1.1. Under the first calculation, O’Daniels’s base offense level under §

2D1.1 (c)(4) was 32 for “[a]t least 50 G but less than 150 G of Cocaine Base.” The report then

recommended a two-level deduction for acceptance of responsibility and a one-level deduction for

entering a guilty plea, resulting in a total offense level of 29. However, instead of using this offense

level, the report re-calculated O’Daniels’s sentence as a career offender under § 4B1.1 of the
No. 06-2028
United States v. O’Daniels
Page 3

guidelines. Because violation of 21 U.S.C. § 841(b)(1)(A)(iii), for which O’Daniels was convicted,

carries a maximum penalty of life in prison, under § 4B1.1 of the guidelines, O’Daniels’s base

offense level was 37. Because this number “is greater than the offense level otherwise applicable,”

it trumped the initial base level of 32. U.S.S.G. § 4B1.1(b). Applying the three-level reduction for

acceptance of responsibility and pleading guilty, the report ultimately recommended a total offense

level of 34.

       The report also calculated O’Daniels’s criminal history category. Without taking into

account his status as a career offender, O’Daniels’s past convictions resulted in 13 criminal history

points, placing him in criminal history category VI. When calculated as a career offender, § 4B1.1

requires the same criminal history category of VI be used. Thus, under the career offender

calculation ultimately recommended by the report, O’Daniels’s total offense level was 34 and his

criminal history category was VI, resulting in a guidelines range of 262-327 months’ imprisonment.

       Before his sentencing hearing, O’Daniels filed a sentencing memorandum which asked for

a downward variance from the guidelines range recommended in the report. In his memorandum,

O’Daniels raised the following arguments for a downward departure: (1) the drug weight was at the

low end of the 50 grams to 150 grams range for sentencing; (2) O’Daniels’s good character as

evidenced by letters of support from family and friends; (3) the 100:1 ratio between powder cocaine

and crack cocaine is irrational and does not meet the purposes of 18 U.S.C. § 3553;1 (4) O’Daniels’s


       1
        18 U.S.C. § 3553. Imposition of a sentence
(a) Factors to be considered in imposing a sentence. The Court shall impose a sentence sufficient,
but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this
subsection. . . .
No. 06-2028
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motive was strictly financial, and no drug use was supported by his crime; (5) the effective doubling

of the recommended sentence due to O’Daniels’s career offender status is inequitable; (6)

O’Daniels’s career offender status overstates his personal risk of recidivism; (7) O’Daniels’s

incarceration would be costly to taxpayers; (8) O’Daniels’s tragic background and upbringing; (9)

O’Daniels’s family responsibility to his child; (10) O’Daniels’s past drug use and need for additional

treatment; and (11) O’Daniels’s cooperation with the government.

       At sentencing, the government moved for a two-level downward departure of O’Daniels’s

offense level for substantial assistance. The district court granted the motion, resulting in an offense

level of 32 with a criminal history category of VI, and a new guidelines range of 210 to 262 months

imprisonment. The district court proceeded to sentence O’Daniels to 210 months imprisonment.

                                                  II.

       O’Daniels’s primary argument is that because the district court failed to address his

arguments for mitigation during sentencing, his sentence is both procedurally and substantively

unreasonable.

        This Court reviews a district court’s sentencing determination for reasonableness, United

States v. Thomas, 498 F.3d 336 (6th Cir. 2007) (citing Rita v. United States, 127 S.Ct. 2456, 2459



       (2) the need for the sentence imposed –
               (A) to reflect the seriousness of the offense, to promote respect for the
               law, and to provide just punishment for the offense;
               (B) to afford adequate deterrence to criminal conduct;
               (C) to protect the public from further crimes of the defendant; and
               (D) to provide the defendant with needed educational or vocational
               training, medical care, or other correctional treatment in the most
               effective manner;
No. 06-2028
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Page 5

(2007)), which, this Court has determined “has both substantive and procedural components,” Id.

(quoting United States v. Jones, 489 F.3d 243, 250 (6th Cir. 2007)). “The Supreme Court's recent

decision in Rita v. United States reinforces our conclusion that reasonableness review requires us

to inquire into both the length of the sentence and the factors evaluated and the procedures employed

by the district court in reaching its sentencing determination.” Id. (internal quotation marks and

citations omitted). After Rita, it is incumbent upon the sentencing judge to “satisfy the procedural

requirement of ‘set[ting] 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. Liou, 491 F.3d 334, 338 (6th Cir. 2007) (quoting Rita, 127 S. Ct. at 2468). This Court

reviews the district court’s decision to “ensure (1) that the sentencing judge adequately considered

the relevant § 3553(a) factors and clearly stated his reasons for imposing the chosen sentence, and

(2) that the sentence is substantively reasonable.” Id. at 339 (footnote omitted). Although “[t]he

amount of reasoning required varies according to context,” id. at 338, “we will vacate a sentence if

the ‘context and the record’ do not ‘make clear’ the court’s reasoning,” id. at 339 n. 4 (quoting Rita,

127 S. Ct. at 2469).

                                                  III.

1.      O’Daniels’s sentence was procedurally reasonable.

        O’Daniels argues that the district court’s sentencing determination was procedurally

unreasonable because the district court did not adequately set forth reasons for imposing O’Daniels’s

sentence. The sentencing transcript makes clear that the district court considered O’Daniels’s status

as a career criminal offender and referenced his background, drug use, and inability to get a job. The
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Page 6

district court noted that growing up in a “tough, tough circumstance . . . is still not an excuse, at least

as far as the law is concerned.” The court also noted the need to “get [O’Daniels] away from drugs

and to obtain substance abuse treatment at the Bureau of Prisons.” Finally, the court stated that

while “it is probably difficult coming out of prison to get a job, . . . that’s not an excuse as far as the

law is concerned . . . .”

        As described above, O’Daniels raised numerous arguments regarding application of the §

3553(a) factors in his sentencing memorandum, and not all of those arguments were specifically

addressed by the district court. However, we do not require district courts to explicitly address

every argument made by a defendant for a lower sentence. See United States v. Gale, 468 F.3d 929,

940 (6th Cir. 2006) (“A sentencing judge has no more duty than we appellate judges to discuss every

argument made by a litigant; arguments clearly without merit can, and for the sake of judicial

economy should be passed over in silence.” (internal quotation marks omitted)).           While the district

court did not expressly address O’Daniels’s sentencing memorandum, as we wish he would have for

a more complete record, we cannot say that the district court did not sufficiently articulate its reasons

for O’Daniels’s sentence such that reasonable appellate review is impossible. On the contrary, it

appears the district court took into account the § 3553(a) factors and adequately explained why it

chose the sentence it did.      See id. (“[W]e will not conclude that a district judge shirked her

obligation to consider the § 3553(a) factors simply because she did not discuss each one individually

or did not expressly parse or address every argument relating to those factors that the defendant

advanced.” (quoting United States v. Fernandez, 443 F.3d 19, 30 (2d Cir. 2006)).

2.      O’Daniels’s sentence was substantively reasonable.
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       “A sentence may be substantively unreasonable where 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. Jones, 489 F.3d

243, 252 (6th Cir. 2007) (internal quotation marks, citations and alterations omitted). Because

O’Daniels was sentenced within the applicable Guidelines range, his sentence is credited with a

“rebuttable presumption of reasonableness.” Rita, 127 S. Ct. at 2462; see also United States v.

Williams, 436 F.3d 706, 708 (6th Cir. 2006).

       O’Daniels argues that his 210-month sentence is substantively unreasonable because it does

not fulfill the purposes of sentencing as outlined in the Sentencing Reform Act and § 3553(a)(2).

According to O’Daniels, the disparity in sentencing for crack cocaine offenses as compared to

powder cocaine offenses is unconstitutional and flies in the face of the purposes of sentencing.

However, because of O’Daniels’s status as a career offender, the 100:1 crack cocaine ratio did not

affect his sentence. If O’Daniels had not been sentenced as a career offender, the 100:1 crack

cocaine ratio would be before us. But here, where the ratio played no role under the guidelines in

his sentence, it does not appear that his argument holds water.

                                                 IV.

       For the foregoing reasons, we AFFIRM O’Daniels’s sentence as both procedurally and

substantively reasonable.
