                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0546n.06

                                           No. 08-2549                                  FILED
                                                                                    Aug 25, 2010
                          UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA                                 )
     Plaintiff-Appellee,                                 )        ON APPEAL FROM THE
                                                         )        UNITED STATES DISTRICT
v.                                                       )        COURT FOR THE EASTERN
                                                         )        DISTRICT OF MICHIGAN
DAMARLON CENAKA THOMAS                                   )
    Defendant-Appellant.                                 )                 OPINION
                                                         )
                                                         )

BEFORE:        COLE and McKEAGUE, Circuit Judges; MAYS, District Judge.*

       McKEAGUE, Circuit Judge.            Following investigations in 2005 and 2007 of drug

trafficking by the Sunnyside Gang in Saginaw, Michigan, prosecutors obtained guilty pleas from and

convictions against numerous gang members. Damarlon Thomas, who pled guilty to distribution

of crack cocaine, now appeals, arguing that his 230-month below-the-Sentencing-Guidelines

sentence was substantively unreasonable given his minor role as a street-level dealer. We find that

the district court did not abuse its discretion in sentencing Thomas, and so affirm the sentence.

                                                 I.

       Over the course of several years the Sunnyside Gang, which included over 100 members, sold

crack cocaine on the South Side (or “Sunnyside” area) of Saginaw, Michigan. In 2005, the

government arrested, indicted, and convicted several gang members on federal drug charges. In 2007

the government launched a second investigation targeting gang members. During the course of this

       *
       The Honorable Samuel H. Mays, Jr., United States District Judge for the Western District
of Tennessee, sitting by designation.
No. 08-2549
USA v. Thomas

investigation, a confidential informant on three occasions purchased crack from Thomas, who was

a street-level dealer. In November of 2007, the government indicted Thomas, along with nine other

gang members, on various drug charges. Thomas himself was charged with conspiring to distribute

crack cocaine and distribution of crack cocaine.

       On August 12, 2008, Thomas pled guilty to count 9 of the first superceding indictment:

distribution on June 19, 2007, of more than 5 grams of cocaine base, in violation of 21 U.S.C. §

841(a)(1) and 21 U.S.C. § 841 (b)(1)(B)(iii). At that time, Thomas also admitted that he had in total

sold the confidential informant approximately 14.88 grams of crack cocaine in three separate

transactions. As part of the plea agreement, Thomas – while conceding that he was subject to a

mandatory minimum sentence of ten years and that he qualified as a career offender within the

meaning of the Guidelines because he had twice been convicted of felony drug trafficking in

Michigan state court – specifically reserved the right to argue that the court should have imposed a

below-Guidelines sentence because his criminal history category over-represented the seriousness

of his criminal history.

       According to the Presentencing Investigation Report (PSR), Thomas was born on August 30,

1985, and was raised in his grandmother’s house. He graduated from Saginaw High School in June

of 2003 and for a short time attended Minnesota West Community College on a football scholarship.

After returning to Saginaw, Thomas began selling drugs for the Sunnyside Gang. In 2005 he was

twice arrested for selling crack cocaine; in each case Thomas pled guilty to the felony charges and

the state court judges sentenced Thomas to 36 months of probation. Following these guilty pleas,

Thomas apparently continued to sell crack cocaine for the Sunnyside Gang until he was arrested in

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No. 08-2549
USA v. Thomas

the summer of 2007. Given his career offender status, and taking into account his acceptance of

responsibility, Thomas was sentenced at Offense Level 34 with a Criminal History Category of VI.

This resulted in a sentencing range under the Sentencing Guidelines of 262-327 months.

       At sentencing, the district court explicitly addressed Thomas’s argument that his

categorization as a career offender significantly overstated his actual criminal history:

       [T]his gentleman arrives here without ever having been sentenced to a day in jail, and
       at this point arrives with a career offender designation and a sentence range of a
       minimum term of 262 months under the guidelines.

       I appreciate the point, which is the fact that the gentleman’s treatment at sentencing
       in state court on the prior sentences probably did an inadequate job of informing him
       of the gravity of the offense if his conduct continued. Notwithstanding that fact, he
       had any number of circumstances where, with the assistance of an attorney, he had
       proceeded through drug trafficking offenses and had the assistance of counsel in
       those instances in order to put into perspective the gravity of continued misbehavior.

       I respectfully do not see that we can ascribe a level of fault for leniency in the
       imposition of this sentence because of the argument that the courts were inordinately
       lenient in the earlier circumstances in state court.

       Second, I have reviewed a number of the sentences that we have imposed with
       respect to the codefendants largely because of the consideration that counsel has
       advanced, that imposing a guideline sentence in this instance would be
       disproportionate given Mr. Thomas’ role in the conspiracy or his role in the
       controlled substance distribution group of folks that were involved here.

       Clearly, I think a guideline sentence could be justified in this instance simply if one
       looks at a comparative prospective with respect to anyone of those other individuals.
       There are differences in criminal history, there are differences in their level of
       participation within the conspiracy that I think distinguish these sets of circumstances
       from those earlier cases. That is to say, I do not find any grounds for either a
       departure within the guidelines or a variance based on 3553(a) factors with respect
       to those two arguments.

       I do believe there is, however, some justification for a modest variance from the
       guideline minimum based on legitimate [18 U.S.C. §] 3553(a) factors here. A review

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No. 08-2549
USA v. Thomas

       of the transactions at this point largely reflects a street dealer at a retail level. . . .
       While his behavior has been consistent, repeated violations of the law, nevertheless,
       his role and involvement in the offense is that of a retail distributor; he is not
       responsible from the information that the court can see for a greater level of
       responsibility within the organization.

       Also, in looking at 3553(b), the gentleman arrives here without – perhaps by luck but,
       nevertheless, distinguishing – juvenile record. . . . And, equally important to the
       court, is the remarks he has made in court. They reflect a distinguishable level of
       remorse for his circumstance. They also reflect a level of depth that I think is also
       distinguishable. . . .

       That said, the court . . . after having given consideration not only to the guideline
       factors that we have exhaustively addressed here as well as the 3553(a) factors,
       commits the defendant to the United States Bureau of prisons for a term of 230
       months.

(11/20/08 Sentencing Tr. (R. 220) at 14-18.)

       This appeal followed sentencing.

                                                   II.

       Thomas argues that the district court’s decision to sentence him to 230 months in prison –

a sentence which was 32 months below the appropriate Guidelines range – was substantively

unreasonable “when his status as a career offender substantially overrepresented the seriousness of

[his] criminal history and represented a disparity from sentences imposed upon defendants with

similar criminal histories and convicted of similar conduct.” (Thomas Br. at 1.) The district court,

Thomas argues, erred by incorrectly assessing the 18 U.S.C. § 3553(a) factors, and so the sentence:

(1) was greater than necessary, especially given that Thomas had never previously been sentenced

to spend time in prison on his prior felony convictions; (2) demonstrated that the district court gave




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No. 08-2549
USA v. Thomas

unreasonable weight to one 3553(a) factor (the suggested Guidelines range); and (3) reflected an

unwarranted sentencing disparity among similarly-situated defendants. We disagree.

       Courts of appeals review all sentences “under a deferential abuse-of-discretion standard.”

Gall v. United States, 552 U.S. 38, 41 (2007). In determining whether a court abused its sentencing

discretion, we look to whether the sentence was both procedurally and substantively reasonable. See

United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007). As the Supreme Court explained, we:

       must first ensure that the district court committed no significant procedural error,
       such as failing to calculate (or improperly calculating) the Guidelines range, treating
       the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a
       sentence based on clearly erroneous facts, or failing to adequately explain the chosen
       sentence – including an explanation for any deviation from the Guidelines range.
       Assuming that the district court's sentencing decision is procedurally sound, the
       appellate court should then consider the substantive reasonableness of the sentence
       imposed under an abuse-of-discretion standard. When conducting this review, the
       court will, of course, take into account the totality of the circumstances, including the
       extent of any variance from the Guidelines range.

Gall, 552 U.S. at 50-51 (citation omitted). Here, Thomas concedes procedural reasonableness, but

argues that his sentence was substantively unreasonable.           “A sentence may be considered

substantively unreasonable when the district court selects a sentence arbitrarily, bases the sentence

on impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable

amount of weight to any pertinent factor.” United States v. Presley, 547 F.3d 625, 630-31 (6th Cir.

2008) (quoting United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008)).




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No. 08-2549
USA v. Thomas

        While Thomas appears to argue that the district court erred both by not departing downward

and by not varying downward far enough,1 in either case, his arguments are ultimately unavailing.

        A. Unreasonableness of Not Departing Downward Under the Guidelines

        Although he focuses on the weight accorded the § 3553(a) factors, and so seems to be arguing

primarily that the district court should have granted a greater downward variance, Thomas conflates

the departure and variance arguments by citing U.S.S.G. § 4A1.3(b)(1), which applies only to

departures and which states that “[i]f reliable information indicates that the defendant’s criminal

history category substantially over-represents the seriousness of the defendant’s criminal history or

the likelihood that the defendant will commit other crimes, a downward departure may be

warranted.” While Thomas is correct that § 4A1.3(b)(1) permits the district court to depart

downward in such circumstances, however, we do “not review a decision not to impose a departure,

‘unless the record shows that the district court was unaware of, or did not understand, its discretion

to make such a departure.’” United States v. Blue, 557 F.3d 682, 687 (6th Cir. 2009) (quoting United

States v. Santillana, 540 F.3d 428, 431 (6th Cir. 2008)). As the Santillana court said, “[w]e do not



        1
          “‘Departure’ is a term of art under the Guidelines and is distinct from ‘variance.’ A
Guidelines ‘departure’ refers to the imposition of a sentence outside the advisory range or an
assignment of a criminal history category different than the otherwise applicable category made to
effect a sentence outside the range. Importantly, a departure results from the district court’s
application of a particular Guidelines provision, such as § 4A1.3 or § 5, Part K. A ‘variance’ refers
to the selection of a sentence outside of the advisory Guidelines range based upon the district court’s
weighing of one or more of the sentencing factors of § 3553(a). While the same facts and analyses
can, at times, be used to justify both a Guidelines departure and a variance, the concepts are distinct.”
United States v. Grams, 566 F.3d 683, 686-87 (6th Cir. 2009) (internal citations and quotations
omitted) (per curiam).


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No. 08-2549
USA v. Thomas

require that a district court explicitly state that it is aware of its discretion to make such a departure.

Rather, we presume that the district court understood its discretion, absent clear evidence to the

contrary.” Santillana, 540 F.3d at 431 (citations omitted). Here, on the contrary, the district court

clearly understood that it could depart downward, but it did “not find any grounds for either a

departure within the guidelines or a variance based on 3553(a) factors with respect to” the argument

that a Guidelines sentence was disproportionate. Accordingly, we do not review the district court’s

decision not to depart downward under § 4A1.3(b)(1).2

        B. Unreasonableness of Not Varying Further Downward From the Guidelines

        The heart of Thomas’s argument is that the district court erred by not sufficiently varying

downward on the basis of the 3553(a) factors after calculating the appropriate Guidelines range.

According to 3553(a), a district court “shall impose a sentence sufficient, but not greater than

necessary, to comply with” the need for the sentence to reflect the seriousness of the offense,

promote respect for the law, provide just punishment, afford adequate deterrence, protect the public

from the defendant, and provide the defendant with needed training or treatment in the most effective



        2
          Even if the district court had chosen to depart under § 4A1.3(b)(1), the authorized
Guidelines departure under this section was actually less downward than the 32-month variance the
district court in fact granted. Given Thomas’s career offender categorization, and taking into account
Thomas’s acceptance of responsibility, Thomas was sentenced at Offense Level 34 with a Criminal
History Category of VI. This resulted in a sentencing range of 262-327 months. According to
U.S.S.G. § 4A1.3(b)(3)(A) – which explicitly limits any downward departure under § 4A1.3(b)(1)
– “The extent of a downward departure under this subsection for a career offender . . . may not
exceed one criminal history category.” In other words, had the district court relied on § 4A1.3(b)(1)
to justify a departure, then the appropriate Guidelines range would have been defined by Offense
Level 34 and Criminal History Category V. This would have resulted in a sentencing range of 235-
293 months – which, at the low end, is still five months more than the sentence the court imposed.

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No. 08-2549
USA v. Thomas

manner. See 18 U.S.C. § 3553(a)(2). Among other factors, the sentencing court must also consider:

the nature and circumstances of the offense; the history and characteristics of the defendant; the

Guidelines range; and “the need to avoid unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct.” See 18 U.S.C. § 3553(a)(1), (3),

(4), & (6). Thomas argues that the court erred by not varying downward in that the sentence: (1) was

greater than necessary; (2) demonstrated that the court gave unreasonable weight to the Guidelines;

and (3) reflected an unwarranted sentencing disparity among similarly-situated defendants.

       i. Imposing A Sentence Greater Than Necessary

       Thomas first argues that the district court imposed a sentence greater than was necessary to

meet the purposes of § 3553(a)(2). In support, he cites various decisions in which courts have

considered whether the career offender Guidelines can produce a penalty greater than necessary. As

we stated in 2007, however, “[o]ur review of sentences for reasonableness is not to be confused with

the district court’s task to impose a sentence that is ‘sufficient, but not greater than necessary, to

comply with the purposes’ of sentencing set forth in 18 U.S.C. § 3553(a).” Bolds, 511 F.3d at 578.

Regardless, given Thomas’s criminal history, the court did not impose a sentence that was greater

than necessary – even given the legitimate § 3553(a) factors.

       We addressed a very similar argument in United States v. Alexander, 543 F.3d 819, 826 (6th

Cir. 2008), in which a low-level drug dealer pled guilty and was sentenced as a career offender to

360 months of imprisonment. As we concluded in Alexander in responding to the argument that the

sentence was greater than necessary:



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No. 08-2549
USA v. Thomas

        Alexander argues that his criminal history is of a “petty nature” that justifies a
        sentence much lower than 360 months of imprisonment, a sentence that would be
        “sufficient, but not greater than necessary, to comply with the purposes” of
        sentencing as set forth in 18 U.S.C. § 3553(a)(2). But Alexander is still a career
        offender – regardless of whether he characterizes his prior felony convictions as
        “petty.” Indeed, despite being a career offender, and despite having already abused
        the district court’s leniency when committing other drug-related offenses while out
        on bond, Alexander was sentenced at the low end of the recommended Guidelines
        range. This suggests that the court was mindful of both the “nature and
        circumstances of the offense and the history and characteristics of the defendant.”

Id. (citations omitted).

        Just like the defendant in Alexander, Thomas here argues that his criminal history is minor

– but also like Alexander, Thomas (as he concedes) was previously convicted of multiple felonies,

and has thus appropriately been designated a career offender. Moreover, the sentence of 230 months

for Thomas (a 32-month, 12% downward variance), along with the district court’s explicit

comments, demonstrates that the district court in sentencing was clearly mindful (as required by §

3553(a)(1)) of the nature and circumstances of the offense and the characteristics of the defendant.

        ii. Giving an Unreasonable Amount of Weight to the Guidelines as a Sentencing Factor

        Thomas’s second argument is that the district court gave too much weight to Thomas’s status

as a career offender under the Guidelines. While a sentence “may be considered substantively

unreasonable when the district court . . . gives an unreasonable amount of weight to any pertinent

factor,” Presley, 547 F.3d at 630-31, the case law offers little guidance as to what an “unreasonable

amount of weight” would be. If a district court entirely discounted all but one 3553(a) factor, then

that court would presumably be giving an unreasonable amount of weight to that factor. Where, in

contrast, a district court explicitly or implicitly considers and weighs all pertinent factors, a


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No. 08-2549
USA v. Thomas

defendant clearly bears a much greater burden in arguing that the court has given an “unreasonable

amount of weight” to any particular one. Among the sentencing factors the district court must

consider, moreover, the Guidelines hold a special place: as the Supreme Court emphasized in Gall,

“a district court should begin all sentencing proceedings by correctly calculating the applicable

Guidelines range. . . . [t]he Guidelines should be the starting point and the initial benchmark.” Gall,

552 U.S. at 49. While sentencing courts must then, with the Guidelines range in mind, consider all

other § 3553(a) factors, “district courts must begin their analysis with the Guidelines and remain

cognizant of them throughout the sentencing process.” Id. at 50 n.6.

       We have in the past rejected a defendant’s argument that the district court failed to accord

proper weight to certain sentencing factors where the “arguments and evidence with respect to [the

defendant’s] plea for a lesser sentence were fully before the district judge, and were expressly noted

and considered” before being rejected. Conatser, 514 F.3d at 527. Here, similarly, after correctly

calculating the appropriate Guidelines range and rejecting either a departure or a variance on the

basis of two of Thomas’s arguments, the district court concluded that there was “some justification

for a modest variance from the guideline minimum based on legitimate 3553(a) factors here,”

explicitly considered those factors, and then varied downward substantially.

       iii. Imposing a Sentence That Reflects an Unwarranted Sentencing Disparity

       Thomas’s third argument is that his sentence reflects an unwarranted disparity between

similarly-situated defendants. 18 U.S.C. § 3553(a)(6) instructs sentencing courts to consider “the

need to avoid unwarranted sentence disparities among defendants with similar records who have

been found guilty of similar conduct.” Thomas compares his sentence first to those received by his

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No. 08-2549
USA v. Thomas

co-defendants and defendants in a related case, and then to those received by five defendants

sentenced as career offenders elsewhere in the country.

       Thomas’s comparison of his sentence to those given his co-defendants is both incorrect and

unwarranted. While Thomas’s sentence of 230 months may exceed the sentences of other Sunnyside

Gang members, in fact these other members were not career offenders within the meaning of the

Guidelines, and so were not similarly-situated within the meaning of § 3553(a)(6).3 Regardless, the

question under § 3553(a)(6) is not necessarily whether a particular defendant received a sentence that

was different from the sentences of his co-defendants. As we have stated repeatedly, “this factor

concerns national disparities between defendants with similar criminal histories convicted of similar

criminal conduct – not disparities between codefendants.” Conatser, 514 F.3d 508, 521 (6th Cir.

2008) (emphasis in original) (quoting United States v. Simmons, 501 F.3d 620, 623-24 (6th Cir.

2007)). “Because § 3353(a)(6) is not concerned ‘with disparities between one individual’s sentence

and another individual’s sentence, despite the fact that the two are co-defendants,’ ‘the district court

is not required to consider that type of disparity under § 3553(a)(6).’” Presley, 547 F.3d at 631

(emphasis in original) (quoting Simmons, 501 F.3d at 623-24).

       Thomas’s comparison of his sentence to those given five random defendants scattered

throughout the United States is only marginally relevant; he cannot demonstrate the existence of a

national sentencing disparity for street-level dealers sentenced as career offenders by citing five



       3
        Notably, Kevin Stephens, whose appeal has been consolidated with Thomas’s and who was
roughly similarly positioned in the hierarchy of the Sunnyside Gang, was sentenced as a career
offender and was given a sentence 32 months longer than was Thomas’s.

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No. 08-2549
USA v. Thomas

individual district court cases. In Simmons, we approvingly cited a First Circuit case criticizing

exactly this sort of argument. “[A] single example is about the weakest sort of proof of national

practice that can be imagined,” we observed, warning against a system in which “great weight [is]

given to such singular examples.” Simmons, 501 F.3d at 626 (quoting United States v. Saez, 444

F.3d 15, 18-19 (1st Cir. 2006)). As the First Circuit had noted, “such a comparison [between

different singular sentences given by different judges] opens the door to endless rummaging by

lawyers through sentences in other cases, each side finding random examples to support a higher or

lower sentence, as their clients’ interests dictate.” Saez, 444 F.3d at 19. A more relevant

consideration would be whether some significant percentage of district courts vary downward

significantly (or by more that 32 months or 12% of the Guidelines sentence) where street-level

dealers are characterized as career offenders under the Guidelines; Thomas, however, has not

provided any evidence to that effect. That in five cases district courts exercised their discretion to

grant downward variances simply cannot prove that the district court in this case imposed a disparate

sentence within the meaning of 18 U.S.C. § 3553(a)(6) by also varying downward (though perhaps

not as much) from the recommended Guidelines range.

                                                 III.

       As the district court imposed a below-the-Guidelines 230-month sentence on Thomas after

appropriately calculating the Guidelines range, explicitly considering the pertinent factors, and

determining that the § 3553(a) factors justified a 32-month downward variance, we find that the

district court did not abuse its discretion in sentencing and so AFFIRM the sentence.



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