                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 09a0734n.06

                                                 No. 06-4306
                                                                                                    FILED
                              UNITED STATES COURT OF APPEALS                                    Nov 12, 2009
                                   FOR THE SIXTH CIRCUIT                                  LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                                       )
                                                                )          ON APPEAL FROM THE
        Plaintiff-Appellee,                                     )          UNITED STATES DISTRICT
                                                                )          COURT FOR THE SOUTHERN
v.                                                              )          DISTRICT OF OHIO
                                                                )
RAY A. HOWELL,                                                  )
                                                                )                    OPINION
        Defendant-Appellant.                                    )



BEFORE: NORRIS AND COLE, Circuit Judges; ADAMS, District Judge.*

        JOHN R. ADAMS, District Judge. Defendant Ray A. Howell appeals from his sentence

of 90 months incarceration. We VACATE and REMAND.

        On April 6, 2006, a grand jury indicted Howell in an indictment that included nine defendants

and twenty-one total counts. In the indictment, Howell was charged under Count 16 (conspiracy to

possess with intent to distribute more than 500 grams of cocaine) and Count 17 (possession with

intent to distribute more than 500 grams of cocaine). On June 7, 2006, Howell pleaded guilty to

Count 16, and Count 17 was dismissed. On September 20, 2006, the district court sentenced Howell

to 90 months incarceration, after calculating an advisory guideline range of 87-108 months. Howell

timely appealed and now challenges the procedural reasonableness of his sentence.




        *
          The Honorable John R. Adams, United States District Judge for the Northern District of Ohio, sitting by
designation.
No. 06-4306
United States v. Howell

         After announcing Howell’s sentence, the sentencing judge, as required by U.S. v. Bostic, 371

F.3d 865, 872 (6th Cir. 2004), asked the parties whether they had “any objections to the sentence just

pronounced that have not been previously raised?” Howell raised no objection to the Court’s

discussion of the § 3553(a) factors. Accordingly, we review the district court’s decision for plain

error.

         “Plain error is defined as an egregious error, one that directly leads to a miscarriage of

justice.” U.S. v. Busacca, 863 F.2d 433, 435 (6th Cir. 1988). Plain error occurs when “(1) there was

an error, (2) that is clear and obvious, and (3) that affects substantial legal rights” and 4) where that

error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” U.S. v.

Angel, 355 F.3d 462, 469 (6th Cir. 2004).

         This Court reviews the district court’s sentencing determination for procedural and

substantive reasonableness. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597 (2007);

United States v. Thomas, 498 F.3d 336, 339 (6th Cir. 2007). We “first ensure that the district court

committed no significant procedural error, such as ... failing to consider the § 3553(a) factors ... or

failing to adequately explain the chosen sentence[.]” Gall, 128 S.Ct. at 597. With respect to this

latter issue, the Supreme Court in Rita v. United States, 551 U.S. 338, 356 (2007), made clear that

a district court should exercise its discretion in determining how much explanation is necessary and

that “when a judge decides simply to apply the Guidelines to a particular case, doing so will not

necessarily require lengthy explanation.” A district judge, therefore, need only “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 decisionmaking authority.” Id.

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United States v. Howell

       During his sentencing hearing, Howell requested a below-guidelines sentence. In support,

Howell argued that 1) the instant conviction was his first involvement in any type of drug offense,

2) he had been successfully employed for several years prior to the offense, 3) he was motivated to

earn money in this manner to assist his mother because she had recently been diagnosed with cancer,

4) he provided the Government with full details of his involvement in the offense immediately, and

5) he submitted letters on his behalf indicated that it was unlikely he would engage in this conduct

in the future. When it imposed sentence, the district court acknowledged that it had received letters

in support of Howell. The district court then stated that it had considered the appropriate factors

under § 3553. In conclusion, the court stated that “[c]onsidering the serious nature of this crime as

well as the defendant’s criminal history, a sentence of 90 months is justified.” J.A. at 66. As the

sentencing hearing neared its end, the district court stated that it had reviewed the “3553(a) statutory

factors and the information in the Presentence Report” prior to reaching its conclusion that a within-

guidelines sentence was reasonable.

       The Government is correct that the district court is not required to engage in a “ritual

incantation” of the proper sentencing factors. See United States v. Johnson, 403 F.3d 813, 816 (6th

Cir. 2005).

       Emphasizing that “[j]udicial decisions are reasoned decisions,” Rita exhorts 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 decisionmaking authority.” The amount
       of reasoning required varies according to context. Rita indicates that when 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. “Whe[n] the defendant or prosecutor


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United States v. Howell

       presents nonfrivolous reasons for imposing a different sentence, however, the judge
       will normally go further and explain why he has rejected those arguments.”

United States v. Liou, 491 F.3d 334, 338 (6th Cir. 2007) (citing and quoting Rita, 551 U.S. at 356-

57).

       Upon review of the Court’s precedents, Thomas, supra, most closely resembles the facts at

hand. In finding Thomas’s sentence procedurally unreasonable, this Court held that “the district

court’s only mention of Thomas’s numerous arguments for a lower sentence was the statement, ‘I

certainly have received [the sentencing memorandum], read it and understand its presentations.’”

Thomas, 498 F.3d at 341. This record left the Court “unsure as to whether the district court

adequately considered and rejected Thomas’s arguments” regarding § 3553 and its application. Id.

       Similar to the district court in Thomas, this district court mentioned that it had read and

considered the presentence report that contained many of the facts relied upon by Howell. The

Court, however, did not discuss any of the arguments raised by Howell. Furthermore, while it

recited the statutory language in § 3553(a), the Court failed to meaningfully apply those factors to

the facts of Howell’s conviction. During the sentencing hearing, the district court made several

factual observations. For example, the court clarified the length of Howell’s prior employment,

acknowledged the personal letters submitted on Howell’s behalf, and noted that Howell was

involved in distributing four kilograms of cocaine powder. While noting these facts, the district

court gave no indication of the significance or lack of significance attached to each fact. While this

Court has made clear that the district court need only demonstrate that it has considered a




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United States v. Howell

defendant’s arguments and exercised its own discretion, the Court cannot make such a conclusion

based on Howell’s sentencing hearing.

        The Court’s inability to review the district court’s purported exercise of discretion is

highlighted by examining the sentencing of Howell’s co-defendant, Alvin Fenderson. In sentencing

Fenderson, the district court used nearly identical language, reciting the statutory language in §

3553(a) and stating that it had considered the statutory factors. See U.S. v. Fenderson, Case No. 07-

4482 (consolidated with this matter for the purpose of oral argument). While Howell received a

sentence near the bottom of the guideline range (90 months based upon a range of 87-108 months),

Fenderson received a sentence at the top of the guideline range (262 months based upon a range of

210-262 months). By simply reciting the statutory language in each case, the district court gave no

indication of the weight it applied to any of the factors, nor did it indicate the weight or lack thereof

given to any of Howell’s arguments.

        There is no question that the district court demonstrated its knowledge of the § 3553(a)

factors. Further, the court explicitly stated that it had considered those factors when imposing

sentence. However, rote recitation of the statutory language does not provide this Court the ability

to review the trial court’s exercise of its discretion. If trial courts were permitted to simply recite the

statutory language in § 3553(a), any substantive reasonableness review would effectively be

precluded. See United States v. Webb, 403 F.3d 373, 385 (6th Cir. 2007) (noting that a substantive

reasonableness requires review of whether the sentence was based on impermissible factors, failed

to take into consideration pertinent § 3553(a) factors, or gave an unreasonable amount of weight to

any pertinent factor). Accordingly, we find that the district court committed plain error when it

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No. 06-4306
United States v. Howell

sentenced Howell. We VACATE and REMAND for a resentencing that adequately explains the

district court’s application of the § 3553(a) factors to Howell’s sentence.




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No. 06-4306
United States v. Howell

       ALAN E. NORRIS, Circuit Judge, dissenting. The Majority reminds us that plain error

is “an egregious error, one that leads to a miscarriage of justice.” Maj. Op. at 2 (quoting United

States v. Busacca, 863 F.2d 433, 435 (6th Cir. 1988)). In this case, I detect no error, let alone an

egregious one. I therefore respectfully dissent.

       As the Majority recognizes, district courts have received mixed messages with regard to

precisely how much explanation is required when imposing a sentence. Obviously, meaningful

appellate review for procedural and substantive reasonableness is impossible if the district court

merely recites the factors outlined in 18 U.S.C. § 3553(a) without applying them to defendant’s

arguments. However, “when a judge decides simply to apply the Guidelines to a particular case,

doing so will not necessarily require lengthy explanation.” Rita v. United States, 551 U.S. 338, 356

(2007). As the Court recognized, “[t]he appropriateness of brevity or length, conciseness or detail,

when to write, what to say, depends upon circumstances.” Id. In my view, the district court in this

case gave sufficient explanation to satisfy us that it had considered defendant’s arguments and had

a reasoned basis for the sentence imposed. Id.

       At sentencing, the district court specifically acknowledged three of defendant’s six

arguments: his current length of employment; that his robbery conviction occurred long ago; and the

letters that his pastor and drug-treatment counselors had written on his behalf. Moreover, defense

counsel reminded the court of the remaining three arguments at sentencing: this was defendant’s first

drug trafficking conviction; he had participated in order to obtain money for his cancer-stricken

mother; and he had told the government everything he knew about the offense. The first two of these

arguments are discussed in the pre-sentence report, and the district court explicitly noted that it had

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United States v. Howell

considered that document in arriving at its sentence. Also, as with all guidelines calculations, the

defendant’s criminal history was an integral part of determining the guidelines range itself, so the

fact that this was defendant’s first drug trafficking conviction was considered by the court. Although

the pre-sentence report did not explicitly state that defendant had told the authorities everything, it

recommended a downward adjustment to his base offense score of two levels for acceptance of

responsibility. Finally, defendant received a sentence at the low end of the guidelines range: 90

months in a range of 87-108.

       While the Majority relies upon United States v. Thomas, 498 F.3d 336 (2007), the sentencing

hearing in that case differed markedly from the one we are reviewing. In Thomas, we concluded that

the sentence the district court had imposed was procedurally unreasonable because “[t]he record

makes clear that the district court considered the applicable Guidelines range, but not much else.”

Id. at 340. We also restated the rule of this circuit that “we will vacate a sentence if the context and

the record do not make clear the court’s reasoning” for imposing the sentence it ultimately chose.

Id. (quotations omitted). By contrast, as discussed above, the district court in the instant case

explicitly considered far more material and acknowledged the arguments advanced by defendant.

       For all these reasons, I would affirm defendant’s sentence.




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