                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0411n.06

                                             No. 09-1308
                                                                                             FILED
                           UNITED STATES COURT OF APPEALS                                 Jul 12, 2010
                                FOR THE SIXTH CIRCUIT                               LEONARD GREEN, Clerk


UNITED STATES OF AMERICA                                   )
                                                           )
       Plaintiff-Appellee,                                 )         ON APPEAL FROM THE
                                                           )         UNITED STATES DISTRICT
               v.                                          )         COURT FOR THE EASTERN
                                                           )         DISTRICT OF MICHIGAN
DAMON L. STEPHENS                                          )
                                                           )
       Defendant-Appellant.




BEFORE: KENNEDY, ROGERS, and KETHLEDGE, Circuit Judges.

       ROGERS, Circuit Judge. Damon L. Stephens, convicted of distributing powder cocaine and

possessing crack cocaine and sentenced to 270 months’ imprisonment, appeals his 270-month

sentence and asks this court to reconsider its prior holding that the trial court’s admission of other-

acts evidence constituted harmless error. A prior panel of this court remanded the case for

resentencing in Stephens’ previous appeal because the district court referred to Stephens’ arguments

for a variance as reasons for a departure. Stephens now argues that his sentence is unreasonable

because the district court classified Stephens as a career offender and failed to consider the 18 U.S.C.

§ 3553(a) factors at resentencing. Stephens is not entitled to relief because no special circumstances

justify an exception to the law-of-the-case doctrine covering our prior determination that admission

of other-acts evidence at Stephens’ trial was harmless error, and because the district court did not

abuse its discretion in resentencing Stephens.
No. 09-1308
United States v. Stephens

       This is Stephens’ second appeal. In a prior appeal, we remanded for resentencing because

counsel and the district court repeatedly referred to arguments for a departure from Stephens’

guidelines range, rather than a variance, leaving doubt as to whether the district court understood its

discretion to vary from the guidelines range at sentencing. United States v. Stephens, 549 F.3d 459,

467 (6th Cir. 2008). We described the facts as follows:

                On April 18, 2006, Stephens received a telephone call from Edward Sumbera,
       a drug user with whom he had previously dealt. Sumbera requested that Stephens
       meet with him the following day to sell him an eighth of an ounce of powder cocaine.
       Stephens agreed. The two met as arranged in a McDonald’s parking lot in Saginaw,
       Michigan. With their vehicles parked beside each other, Stephens approached
       Sumbera’s passenger-side window. According to the government, Stephens then
       passed a package containing 2.46 grams of powder cocaine to Sumbera, who gave
       him $130 in cash. Sumbera, who had arranged the sale in cooperation with the police
       in order to avoid prosecution for driving after his license had been suspended,
       proceeded to turn the drugs over to the officers who had observed the meeting
       between Stephens and Sumbera.
                In an unrelated incident on June 8, 2006, drug enforcement officers executing
       a search warrant encountered Stephens standing on a wheelchair ramp leading to the
       door of the Saginaw house they intended to search. The officers ordered him to put
       his hands in the air. Rather than complying, Stephens reached into the front of his
       pants, removed a white packet, and dropped it onto the ground nearby. One of the
       officers ran over to collect the packet, which was later determined to contain 3.01
       grams of crack cocaine.
                As a result of these two incidents, Stephens was indicted under 21 U.S.C.
       § 841(a)(1) on one count of distributing less than 500 grams of powder cocaine and
       on one count of possessing less than 5 grams of crack cocaine with the intent to
       distribute the drug. The government filed a notice of its intent to introduce evidence
       at trial of Stephens’s 2003 conviction for the distribution of less than 50 grams of
       powder cocaine. This evidence, according to the government, was admissible
       pursuant to Rule 404(b) of the Federal Rules of Evidence because it showed that
       Stephens had “the opportunity to commit the present offenses,” “the intent to commit
       the present offense,” “made a plan to commit the present offenses,” and “had the
       knowledge required to commit the present offenses.”
                The district court agreed in part with the government’s argument. At the
       conclusion of a hearing on Stephens’s motion in limine to exclude the 2003
       conviction, the district court decided to admit the evidence for two limited purposes:

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No. 09-1308
United States v. Stephens

       (1) to show “a plan of drug trafficking” regarding the powder-cocaine-distribution
       charge, and (2) to show an intent to distribute the crack cocaine involved in the
       second charge rather than to simply possess it for personal use. The court noted that
       the evidence of the 2003 conviction would be especially relevant to “establish
       commercial intent” relating to the second charge because the jury would be asked to
       draw inferences from circumstantial evidence on that element. When instructing the
       jury, however, the court abandoned its conclusions from the hearing on the defense’s
       motion in limine. The court instead told the jurors that the 2003 conviction could be
       considered “as it relates to the government’s claim on the defendant’s intent,
       opportunity, and knowledge.”
               Sumbera, the individual who had cooperated with the police by arranging the
       powder-cocaine purchase in the McDonald’s parking lot, testified at Stephens’s trial.
       He described the April 2006 sale and, in addition, said that he had bought powder
       cocaine from Stephens on several prior occasions. The police officers who observed
       Sumbera’s meeting with Stephens also testified, as did the officers who observed
       Stephens removing the packet of crack cocaine from his pants in June 2006. After
       being instructed by the court, the jury found Stephens guilty of the first charge-the
       distribution of less than 500 grams of cocaine in violation of 21 U.S.C. § 841(a)(1).
       Regarding the second charge-the possession of crack cocaine with intent to distribute
       the drug-the jury found that Stephens had possessed the crack cocaine but did not
       find that he had intended to sell it. Stephens was thus found guilty of the lesser
       offense of simple possession of crack cocaine in violation of 21 U.S.C. § 844(a).
               Based on the applicable offense level and the criminal history category for
       the two convictions considered in isolation, the Presentence Report (PSR) filed by
       the Probation Office indicated that the appropriate range under the Sentencing
       Guidelines was 37 to 46 months of imprisonment. Stephens, however, was
       classified as a career offender pursuant to U.S.S.G. § 4B1.1 because his criminal
       history included two prior felony convictions for controlled-substance
       offenses-convictions in both 1993 and 2003 for the delivery of less than 50 grams
       of cocaine. Under the career-offender provisions, Stephens’s offense level increased
       substantially, with the final Guidelines range in the PSR rising to 262 to 327
       months’ imprisonment. The district court ultimately sentenced Stephens to 270
       months of imprisonment for the powder-cocaine-distribution conviction and 36
       months of concurrent imprisonment for the crack-cocaine-possession conviction.

Id. at 460-62. We determined that although the circumstances of the district court’s decision to

allow the admission of other-act evidence against Stephens was troubling, any error was harmless




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No. 09-1308
United States v. Stephens

given the overwhelming evidence against Stephens. Id. at 463-64. Therefore, remand was limited

to resentencing.

       At resentencing, the district court stated that the “gist of the Court of Appeals opinion related

to the inadequacy of attention to 3553(a) factors,” and asked Stephens and counsel to repeat several

of the arguments raised in the original sentencing memorandum. After further consideration on the

record, the district court sentenced Stephens to the same 270-month sentence, which was near the

low end of Stephens’ guidelines range of 262 to 327 months. The court gave the following

explanations:

               We noted at the [original sentencing] in arriving at the conclusions that we
       did that the gentleman had confronted mental health problems that would have
       affected his judgment and behavior. We had also taken into consideration the fact
       that he had been raised in a family that had its challenges and had not furnished him
       a great deal of structure for discipline.
               We also considered the fact he had undertaken most recently the obligations
       of his family and to his children.
               Notwithstanding that fact, less adequately addressed from my perspective is
       the fact there were other concerns with respect to the defendant’s history and
       characteristics that also were to be considered. He had only obtained his GED during
       one of his tenures with the Department of Corrections in 1997. He left school in the
       9th grade, and had withdrawn from other efforts at obtaining his high-school degree.
       As a practical matter, he had no vocational skills. And according to the presentence
       report, he last had employment in 2002, some five years prior to the date of
       sentencing.
               He, according to the presentence report, had a September of ’01 child support
       order, and according to the report never made a payment with respect to the support.
       He had an extended breach in his obligation to pay child support but only because of
       the fact that he had been sentenced to the Department of Corrections.
               He did receive treatment while he was at White Pine in 2002, and later on
       with the out-treatment program, and ended up leaving the program as a result of the
       fact that he returned to the use of drugs.
               His criminal history we gave attention to. And I think it is appropriate to
       review, once again, when we look at the criteria for the need [of a sentencing judge]


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No. 09-1308
United States v. Stephens

       to consider the seriousness of the offense, the necessity for adequate deterrence and
       protection of the public.
                The gentleman, putting aside the operator’s license and expired plates back
       in 1993, began with his criminal record history with a count in December—excuse
       me—July 1993 for possession of less than 50 grams of cocaine.
                While on parole, the gentlemen was flopped as a result of the fact that he had
       submitted several urine samples that reflected his continued use of marijuana.
                He was found responsible for the offense of disturbing the peace in November
       1999.
                In 2000 there was the offense of possession of marijuana, second offense, in
       the county of Saginaw.
                Later in the year 2000, as Mr. Jacobs pointed out, the offense of possession
       of less than 25 grams of cocaine. He was also found responsible as being a second
       felony offense offender.
                Upon sentencing, the gentleman tested positive for controlled substances, he
       was again ordered to spend the first 30 days [in] incarceration.
                The gentleman has made reference to the domestic violence conviction in
       2002. The later delivery of cocaine offenses. In the report furnished to the court, the
       gentlemen made reference to the parole violation that included the allegation of the
       fact that he had assaulted his wife for some 20 to 30 minutes.
                The government has also pointed out the fact that the defendant’s criminal
       history commences more or less at the age of 13 when he was charged with the
       offense of assault with the intent to murder as well as felony firearm, and the
       summarization of the incident includes the reference to the fact the gentleman shot
       the victim at close range in the chest.
                Indeed, all of these factors, when considered[,] provide[] a record that I think
       requires attention to deterrence and adequate protection of the public.
                I’d respectfully find no justification considered those 3553(a) factors for [a]
       variance in the case.

After the district court announced the sentence, Stephens objected, arguing that his completion of

a GED was a mitigating sentencing factor. The district court stated:

               Indeed, I appreciate your point. From the court’s perspective, on the other
       hand, the record also reflects the fact the gentleman failed to complete any of those
       [educational] requirements prior to the time that he was in an institution requiring
       such, and at a late point in his life.
               It also reflects he has no vocational skills and no employment record, all of
       which, from the court’s perspective, [militate] against the application of the variance
       under the circumstances.

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No. 09-1308
United States v. Stephens

Stephens filed this timely appeal.

        The law-of-the-case doctrine precludes reconsideration of our prior holding that any error

associated with the district court’s decision to admit other-act evidence at trial was harmless. “Under

the doctrine of law of the case, findings made at one point of the litigation become the law of the

case for subsequent stages of that same litigation.” United States v. Moored, 38 F.3d 1419, 1421

(6th Cir. 1994). Determinations by a court of appeals are binding on the district court and the

appellate court in later appeals, unless one of three exceptions applies: (1) a party raises substantially

different evidence in a subsequent trial; (2) a controlling authority takes a subsequent contrary view

of the law; or (3) a decision is clearly erroneous and would work a manifest injustice. United States

v. Haynes, 468 F.3d 422, 426 (6th Cir. 2006). Because Stephens has not produced any additional

evidence, the law has not changed, and our previous harmless error decision was not clearly

erroneous, the law-of-the-case doctrine precludes further review of Stephens’ conviction.

        Stephens argues that the lack of evidence supporting his conviction constitutes the

extraordinary circumstances that justify further review in this case, but the facts point the other way.

As we previously determined, there was overwhelming evidence to support Stephens’ convictions.

Stephens, 549 F.3d at 464. A confidential informant arranged to purchase drugs from Stephens, and

three police officers witnessed most of the transaction. The officers testified that they saw the

informant approach Stephens with cash but no drugs, and although they did not witness the

transaction, they testified that when the informant returned after a brief interaction with Stephens the

informant had 2.46 grams of powder cocaine and no cash. With respect to Stephens’ conviction for

possessing crack cocaine, three officers testified that they personally observed Stephens remove the

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No. 09-1308
United States v. Stephens

crack cocaine from his pants and throw it to the ground. Because there was overwhelming evidence

supporting Stephens’ convictions, our prior decision was not clearly erroneous and did not constitute

manifest injustice warranting application of an exception to the law-of-the-case doctrine.

       The district court did not abuse its discretion in sentencing Stephens. To survive appellate

review, a sentence must be both substantively and procedurally reasonable. United States v. Tate,

516 F.3d 459, 469 (6th Cir. 2008). In his second appeal, Stephens argues that his sentence of 270

months’ imprisonment was not reasonable because the district court failed to consider the § 3553(a)

factors and because the district court should not have applied the career offender enhancement that

resulted in a much higher guidelines range. Stephens is not entitled to relief, however, because the

district court properly applied the career offender enhancement in calculating Stephens’ guidelines

range, and the record reflects that the district court considered both the § 3553(a) factors and the

court’s discretion to vary from the guidelines range in determining Stephens’ sentence at

resentencing.

       Stephens’ 270-month sentence was procedurally reasonable. In his second appeal, Stephens

does not challenge the accuracy of the guidelines range presented in the presentence report or the

accuracy of the career offender designation. Incorporated in Stephens’ second issue presented for

review is his argument that the district court erred in finding appellant a career offender, but

Stephens’ argument on that ground was that the district court should have used its discretion to vary

from the guidelines and not apply the career offender enhancement, not that Stephens did not qualify

as a career offender. The record reflects, however, that the district court conducted an individualized

sentencing at resentencing, weighing the relevant § 3553(a) factors and determining that, largely on

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No. 09-1308
United States v. Stephens

the basis of Stephens’ lengthy criminal history, a within-guidelines sentence including the career

offender enhancement was warranted. After addressing Stephens’ mental health problems and his

family background, the district court engaged in a lengthy discussion of Stephens’ criminal history

and stated that “all of these factors, when considered[,] provide[] a record that I think requires

attention to deterrence and adequate protection of the public.” The court further stated that it would

“find no justification considering those 3553(a) factors for [a] variance in the case.” Therefore, the

record makes clear that the sentencing judge “considered the parties’ arguments and ha[d] a reasoned

basis for exercising his own legal decisionmaking authority” in sentencing Stephens. Rita v. United

States, 551 U.S. 338, 356 (2007).

       Stephens’ sentence is also substantively reasonable. The Government argues that Stephens

has waived any claim to the substantive reasonableness of the sentence by developing only

arguments addressing the procedural reasonableness of the sentence. The thrust of Stephens’

arguments, however, is that the judge failed to consider relevant § 3553(a) factors at sentencing.

This could lead to an unreasonable sentence, but Stephens has not met his burden of establishing that

the district court abused its discretion in selecting a 270-month sentence. A sentence is substantively

reasonable if the length of the sentence is reasonable in light of the § 3553(a) factors. United States

v. Tate, 516 F.3d 459, 469 (6th Cir. 2008). As discussed in relation to the procedural reasonableness

of Stephens’ sentence, the record reflects that the court considered the relevant § 3553(a) factors at

the resentencing hearing. Moreover, the district court noted its understanding that the very purpose

of the resentencing hearing was to ensure the district court noted its consideration of the § 3553(a)

factors and understood its discretion to grant a downward variance. After such consideration, the

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No. 09-1308
United States v. Stephens

district court chose to sentence Stephens to 270 months’ imprisonment, near the low end of the

guidelines range. Within-guidelines sentences are entitled to a presumption of reasonableness,

United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc), and Stephens’ arguments for

a downward variance are insufficient to rebut that presumption. The majority of those arguments

focus on the impact of Stephens’ criminal history on his sentence through the career offender

enhancement, yet the district court discussed Stephens’ criminal history at length and determined that

any mitigating evidence did not outweigh the concerns raised by Stephens’ lengthy criminal history.

Even Stephens’ own arguments that his previous crimes were not violent in nature acknowledged

a conviction for domestic violence, and the court noted that Stephens’ lengthy criminal history began

at age 13 when he was adjudicated guilty of assault with intent to murder after shooting the victim

several times at close range. The district court did not give an unreasonably large amount of weight

to Stephens’ criminal history in selecting a sentence within the guidelines under the career offender

enhancement. Therefore, Stephens’ sentence was substantively reasonable.

       For these reasons, the judgment of the district court is affirmed.




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