                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                              File Name: 07a0368p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                     X
                               Plaintiff-Appellant, -
 UNITED STATES OF AMERICA,
                                                      -
                                                      -
                                                      -
                                                          No. 06-4072
           v.
                                                      ,
                                                       >
 JOSEPH A. HAIRSTON,                                  -
                              Defendant-Appellee. -
                                                     N
                      Appeal from the United States District Court
                     for the Southern District of Ohio at Columbus.
                   No. 02-00092—Algenon L. Marbley, District Judge.
                                             Argued: June 6, 2007
                                  Decided and Filed: September 10, 2007
       Before: MARTIN and BATCHELDER, Circuit Judges; O’MEARA, District Judge.*
                                              _________________
                                                    COUNSEL
ARGUED: Clair J. Evans, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellant. Terry K. Sherman, Columbus, Ohio, for Appellee. ON BRIEF: Daniel S.
Goodman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Gary L. Spartis,
ASSISTANT UNITED STATES ATTORNEY, Columbus, Ohio, for Appellant. Terry K. Sherman,
Columbus, Ohio, for Appellee.
    MARTIN, J., delivered the opinion of the court, in which O’MEARA, D. J., joined.
BATCHELDER, J. (pp. 9-10), delivered a separate dissenting opinion.
                                              _________________
                                                  OPINION
                                              _________________
       BOYCE F. MARTIN, JR., Circuit Judge. The United States appeals Joseph Hairston’s 60-
month sentence, which was re-imposed by the district court on remand in light of United States v.
Booker, 543 U.S. 220 (2005). The government contends that the sentence is substantively
unreasonable. We disagree, and thus AFFIRM Hairston’s sentence.



         *
         The Honorable John Corbett O’Meara, United States District Judge for the Eastern District of Michigan, sitting
by designation.


                                                          1
No. 06-4072           United States v. Hairston                                                Page 2


                                                  I
        On May 13, 2002, Hairston pled guilty to one count of distributing more than five grams of
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii). The presentence report
determined that Hairston had a total offense level of 29 and a criminal history category of IV,
yielding a Guidelines Range of 121 to 151 months’ imprisonment. The Probation Office
recommended a sentence at the bottom of that range. It also recommended an upper-end supervised
release term (60 months), because this was not Hairston’s first conviction for drug-related activities
and because he committed the instant offense while on supervised release for a prior drug offense.
Hairston then filed a motion for downward departure based on what he claimed to be “extraordinary
post-offense rehabilitation” during the time between his release on his own recognizance and his
eventual sentencing. As a condition of his pre-trial release, Hairston was “subject to electronic
monitoring, had to submit to a random urinalysis, and was required to maintain verifiable
employment.” Joint App’x at 45. He complied with these terms, working 40-80 hours per week as
a maintenance technician in an apartment complex and submitting 24 consecutive negative urine
samples. Id. During this time, he supported his five dependent children and his significant other.
Id. This led the district court to conclude that, “[w]hen considered in totality, these factors amount
to extraordinary post-offense rehabilitation.” Id. As the court elaborated in a sentencing hearing
held on October 24, 2003:
       I analyzed whether [Hairston] was extraordinary, taking him from where he started
       and not comparing him to someone who was never involved in drug culture, because
       I thought that would be an unfair comparison. Compared to someone who had
       always taken the high road, . . . he is not extraordinary. But compared to the
       someone who has been steeped in this drug culture and who has spent a considerable
       portion of his life in this drug culture, his post-arrest rehabilitation has been
       extraordinary. And you’re right, he has done little more than what he was required
       to do, but I see a number of instances where people are required to do certain things
       as a condition of their release and I don’t have to tell you about the countless
       instances in which they are back here because they don’t do it. And I was most
       impressed by his commitment to his work and his commitment to his support of his
       dependents, not to mention the fact that his urinalysis specimens have been negative.
       And that’s something that is consequential for someone who has been, if not addicted
       to drugs, close to being addicted to drugs and who has been, you know, an integral
       part of the drug culture for most of his adult life.
Id. at 90-91. The district court then sentenced Hairston to a term of 60 months’ imprisonment,
which is the statutory minimum under section 841(b)(1)(B), to be followed by five years’ supervised
release. The district court styled this as an 8-level departure from the lower end of the Guidelines
range. Id. at 45, 91. The 60-month sentence represented a 51% departure from the 121-month lower
end of the range.
        The government appealed, claiming that the district court had erred in granting Hairston such
a significant downward departure under the then-mandatory Sentencing Guidelines. A panel of this
Court vacated the sentence and remanded to the district judge for resentencing in light of Booker.
See United States v. Hairston, 127 F. App’x 811 (6th Cir. 2005) (unpublished). The panel concluded
as follows:
              While resentencing is required under Booker, we consider the remaining
       claims because the district court will need to consider the correct
       Guidelines-recommended sentence in fashioning its own post-Booker sentence on
       remand.
No. 06-4072           United States v. Hairston                                                    Page 3


                We do not think that the district court erred in reducing Hairston’s sentence
       under the Guidelines based on extraordinary post-arrest rehabilitation. Even under
       the Guidelines framework, we are convinced that it was proper for the district court
       to reduce Hairston’s sentence given the fact that “the defendant . . . achieved real
       gains in rehabilitating himself and changing his behavior.”
                The district court’s grounds for post-offense rehabilitation in the instant case
       are sufficiently atypical of defendants similarly situated to Hairston to justify a
       reduction in Hairston’s sentence under the Guidelines. As the district court pointed
       out, Hairston’s pre-sentence investigation report suggests that Hairston abused drugs
       and alcohol for more than half of his life—since he was seventeen years old—and
       was unable to maintain consistent work since dropping out of school after
       completing the eighth grade. The report also indicated a number of drug-related
       arrests, including the underlying offense in this case.
                Hairston’s rehabilitation since this most recent arrest has been truly
       exceptional. During Hairston’s pre-sentencing period, which lasted approximately
       seventeen months, he remained drug-free, as evidenced by twenty-four negative
       urine samples. During this period, Hairston also did not commit any legal violations,
       except for a minor traffic violation, and held a steady job as a maintenance
       technician, sometimes working as much as eighty hours per week. He also supported
       three children of his own, two stepchildren, and his significant other. We think that
       the district court was correct to consider Hairston’s successful efforts to overcome
       his drug problems and transform his life sufficiently extraordinary to justify a
       reduction in his sentence for post-offense rehabilitation.
       [. . .]
                In this case, the district court found “the changes that the defendant has
       undertaken in his life to demonstrate . . . that [the]defendant has made a commitment
       to repair and rebuild his life.” We agree that Hairston’s changes are sufficient to
       demonstrate a genuine commitment to turning his life around such that he is unlikely
       to re-offend. Therefore, we think that the district court was justified in granting
       Hairston a downward departure under the Guidelines in light of his post-offense
       rehabilitation. While we are convinced that the district court did not err in departing
       downward under the Guidelines, we instruct the district court on remand to provide
       a more detailed rationale for the extent of its reduction in Hairston’s sentence so that
       this Court can properly review for reasonableness on any subsequent appeal.
Id. at 813-15 (internal citations omitted).
       At resentencing, the district court again imposed a term of 60 months’ imprisonment.
Elaborating substantially on its already thorough statements from the original sentencing, the court
noted:
               [T]o the extent that the [Sixth Circuit] asked me to articulate the reasons for
       the extent of my departure, I feel constrained at least to go through some of the
       factual considerations that persuaded me to depart eight levels. . . . My overarching
       concern was the extraordinary rehabilitation that I thought [Hairston] had undergone
       considering his previous involvement as a significant member of the drug culture. . . .
       [I]ndeed this [case] fits within the strictures of United States v. Maddalena [893 F.3d
       815 (6th Cir. 1989)] where the court found that the district judge may consider
       defendant’s efforts to stay away from drugs as a basis for departing under the
       guidelines; United States v. Jones [158 F.3d 492 (10th Cir. 1998)], the district court
       did not abuse its discretion in departing downward based on defendant’s post-offense
       rehabilitation evidenced by his regular work counseling in support of his children,
       and United States v. Lange [241 F. Supp. 2d 907 (E.D. Wis. 2003)]. . . . Lange is
No. 06-4072          United States v. Hairston                                                     Page 4


       from the Eastern District of Wisconsin. But the court found downward departure for
       post-offense rehabilitation appropriate where the convicted drug dealer passed all
       random drug tests while in rehab, finished the drug treatment program and complied
       with conditions of release. . . .
                Now, turning to 3553(a), there are a number of factors that the Court can
       consider. I am considering the history and characteristics of the defendant certainly
       in looking at his employment and work effort, the fact that he has supported his
       children and the fact that he complied wholeheartedly with all of his post-offense
       arrest conditions. I am also looking at the fact that he rehabilitated himself and he,
       as I pointed out earlier, extricated himself from the drug culture. . . . Also in
       considering whether a departure would be warranted that would take him down to
       the statutory minimum of five years, I look at the nature and the circumstances of the
       offense. He was involved in drug transactions that I think did not exceed $1,600. . . .
       And he distributed a total of 38.6 grams of crack. His activities in this case were
       motivated by his addiction as opposed to his profit motive. It also appears, and one
       of the points that the government relied on at the previous hearing, . . . was the fact
       that he sold the [confidential informant] a gun. . . . If my reading of the presentence
       investigation report is correct, he got the gun at the urging of the [informant]. . . . I
       think it is slightly different than the situation in which you have a drug dealer who
       keeps firearms to protect his enterprise. And certainly we have a number of those
       and certainly that is why we have 924(c) counts for those instances where someone
       is using firearms in relation to the commission of a drug-related offense. We don’t
       have that circumstance here. . . . I never once took the position that Mr. Hairston
       was not involved in the drug trade. He was heavily involved in it. But he had gotten
       out of it and I think that his actions demonstrated that he got out with the intent of
       remaining out and engaging in post-offense rehabilitation of an extraordinary nature,
       which was the basis of my earlier ruling.
                The parameters under 3553(a) also talk about the need to promote certain
       statutory objectives, such as to reflect the seriousness of the offense, to promote
       respect for the law and to provide just punishment for the offense, to afford adequate
       deterrent to criminal conduct, to protect the public from further crimes of the
       defendant and to provide the defendant with needed educational and vocational
       training, medical care or other correctional treatment in the most effective manner.
       I think that a five year sentence adequately meets those objectives. Given the road
       to rehabilitation he is on, I think that it will provide — five years of a person’s life
       provides adequate deterrence. He is going to be off the streets for five years so that
       will protect the public from future crimes of this defendant. . . . One other thing that
       I will also mention is that Mr. Hairston also agreed to cooperate with officials and
       tried to offer substantial assistance to the extent that it would warrant a motion by the
       government for reduction of sentence. But because he had been out of the drug
       trade, he was unable to effectuate the transactions that would have been of any
       import or that would have been significant enough to warrant the government
       making a motion for reduction of his sentence based on substantial assistance.
                So all of those factors under 3553(a), considering the advisory guidelines and
       the jurisprudence under post-offense rehabilitation, leave the Court to conclude that
       eight levels is justifiable because it puts him at a point of the statutory minimum and
       I believe that five years is a sentence that is adequate to meet the statutory concerns
       set forth in 3553(a)(2).
Joint App’x at 118-26.
       The government now renews its appeal, arguing that Hairston’s 60-month sentence is
substantively unreasonable. The government maintains that the district court “ignored the principles
No. 06-4072           United States v. Hairston                                                  Page 5


of proportionality in varying downward by more than 50 percent to the statutory minimum sentence
required for Hairston’s crack cocaine distribution crime.” Gov’t Br. at 13.
                                                  II
        Our first observation is that this appeal flirts with being precluded by the law of the case
doctrine. A prior panel of this court clearly stated: “We do not think that the district court erred in
reducing Hairston’s sentence under the Guidelines based on extraordinary post-arrest rehabilitation,”
and “we think that the district court was justified in granting Hairston a downward departure under
the Guidelines in light of his post-offense rehabilitation.” Hairston, 127 F. App’x at 813, 815. As
such, there seems little reason for this panel to rehash the same issue. Nevertheless, the prior panel
added a caveat to its above statements when it said: “While we are convinced that the district court
did not err in departing downward under the Guidelines, we instruct the district court on remand to
provide a more detailed rationale for the extent of its reduction in Hairston’s sentence so that this
Court can properly review for reasonableness on any subsequent appeal.” Id. at 815. If we are to
give any meaning to the prior panel’s proviso that we be able to “properly review for
reasonableness” the second time around, then the law of the case doctrine does not preclude us from
once again reviewing Hairston’s sentence for reasonableness, this time in light of the section 3553(a)
justifications provided by the district court.
        Thus we re-review for reasonableness the district judge’s downward variance from the 121-
month lower end of the Guidelines Range. We start from the now-familiar premise that “the farther
the judge’s sentence departs from the guidelines sentence . . . the more compelling the justification
based on factors in section 3553(a) must be.” United States v. Davis, 458 F.3d 491, 496 (6th Cir.
2006) (internal quotation marks omitted). In numeric terms, the 51% downward variance in this
case is not particularly remarkable. After all, just within this past year we have upheld downward
variances of 61%, 43%, 99.91%, 36%, and [effectively] 100% from the lower end of the guidelines
range. See United States v. Poynter, — F.3d —, 2007 WL 2127353, at *4 (6th Cir. July 26, 2007)
(collecting cases). Likewise, within the past year we have vacated downward variances of 66%,
43%, and 99.89%. Id.
        During the resentencing hearing, the district court offered no shortage of section 3553(a)
justifications for Hairston’s variance, to wit:
   •   I am considering the history and characteristics of the defendant certainly in looking
       at his employment and work effort, the fact that he has supported his children and the
       fact that he complied wholeheartedly with all of his post-offense arrest conditions.
       I am also looking at the fact that he rehabilitated himself and he, as I pointed out
       earlier, extricated himself from the drug culture. [§ 3553(a)(1)]
   •   Also in considering whether a departure would be warranted that would take him
       down to the statutory minimum of five years, I look at the nature and the
       circumstances of the offense. He was involved in drug transactions that I think did
       not exceed $1,600. . . . And he distributed a total of 38.6 grams of crack. His
       activities in this case were motivated by his addiction as opposed to his profit
       motive. [§ 3553(a)(1)]
   •   I never once took the position that Mr. Hairston was not involved in the drug trade.
       He was heavily involved in it. But he had gotten out of it and I think that his actions
       demonstrated that he got out with the intent of remaining out and engaging in post-
       offense rehabilitation of an extraordinary nature, which was the basis of my earlier
       ruling. [§ 3553(a)(1)]
No. 06-4072           United States v. Hairston                                                  Page 6


   •   Given the road to rehabilitation he is on, I think that it will provide — five years of
       a person’s life provides adequate deterrence. [§ 3553(a)(2)(B)]
   •   He is going to be off the streets for five years so that will protect the public from
       future crimes of this defendant. [§ 3553(a)(2)(C)]
   •   So it’s a matter of specific deterrence, I’ve referenced general deterrence, and Mr.
       Hairston certainly can take advantage of educational and vocational training and any
       other correction treatment to continue with his rehabilitation. [§ 3553(a)(2)(D)]
   •   I believe that five years is a sentence that is adequate to meet the statutory concerns
       set forth in 3553(a)(2). [§ 3553(a) - “parsimony provision”]
Joint App’x at 122-23,124-26.
        The government advances two principal arguments as to why Hairston’s 60-month sentence
is substantively unreasonable. First, it notes that a defendant with a total offense level of 29 (like
Hairston’s) but a criminal history category of I (unlike Hairston’s IV), would have faced a
Guidelines range of 87 to 108 months’ imprisonment. Thus, while recognizing that in crafting a
variance the district court was entitled to take Hairston’s post-offense rehabilitation into account,
the government asserts that the net effect was to give Hairston a lower sentence than that
recommended for a defendant convicted of the same crime “who had never previously been in
trouble with the law.” Gov’t Br. at 18. The government finds it ironic that Hairston received “an
especially low sentence” precisely because he was “a defendant with a worse record.” Id. “Under
the logic of the district court’s sentencing rationale,” the government maintains, “a first-time
offender who engaged in exactly the same crime and the same rehabilitative conduct as Hairston
would not be entitled to the same maximum downward deviation, because his rehabilitation would
be significantly less extraordinary.” Id. at 19. Fair enough, but this argument glosses over the fact
that a first-time offender who committed Hairston’s crime would likely be able to benefit from
aspects of § 3553(a) that are unavailing to Hairston himself, and thus he/she would not necessarily
be entitled to less of a downward variance than Hairston. A sentencing judge could come up with
an equally compelling—though different—reason under § 3553(a) for why both a first-time offender
and Hairston should receive a 60-month sentence, which in either event would represent a
downward variance from the low end of the guidelines range. Furthermore, the notion that Hairston
is in some sense being “rewarded” for having “previously been immersed in a life of drugs and
guns,” Gov’t Br. at 19, is not at all absurd. The whole point of the sentencing judge’s opinion is that
individuals who are able to extricate themselves from such a life of drugs and guns are a rarity. Sad
as it may be, Hairston appears to have been unique among repeat drug offenders to have come before
this district judge, in that he not only complied with the terms of his post-arrest rehabilitation, but
exceeded them. If the judge were not faced with “countless instances,” Joint App’x at 91, in which
defendants were back in his court having failed to comply with the terms of post-release
rehabilitation, then Hairston’s behavior would not have been extraordinary. In short, the district
judge’s rationale for Hairston’s reduction in sentence was considerably more nuanced than a simple
statement that defendants with “worse record[s]” are entitled to “especially low sentence[s].”
        The government’s second point, not unrelated to the first, is that 60 months is the statutory
minimum for the crime to which Hairston pled guilty, see 21 U.S.C. § 841(b)(1)(B)(iii), and thus it
represents “the most extreme variance possible, leaving no room to make reasoned distinctions
between defendant’s variance and variances that other, more worthy defendants might deserve.”
Davis, 458 F.3d at 499. More “worthy” defendants, the government posits, include those with a
“lesser criminal history” (as discussed above), those whose crime “did not involve firearms as well
as drugs,” those who “sold a smaller quantity of crack cocaine,” or those who “provided assistance
to the government while on post-arrest release.” Gov’t Br. at 22. What distinguishes this case from
No. 06-4072               United States v. Hairston                                                               Page 7


Davis, however, is that the defendant in Davis was not subject to a statutory minimum. The district
court in Davis had the authority, at least in principle, to sentence Davis to zero days in prison. And
indeed, Davis’s one-day prison sentence was roughly akin to no prison sentence at all. Yet in the
instant case, as substantial as his variance may be, Hairston still faces the statutory minimum for his
crimes: namely, a full five years in federal penitentiary. So unlike Davis, this is a tougher case,
because it forces us to reconcile a statutory minimum with the so-called “parsimony provision” of
§ 3553(a), which commands a sentencing judge to “impose a sentence sufficient, but no greater than
necessary, to comply with the purposes set forth in [§ 3553(a)(2)].” In a statutory minimum scenario
such as this one, we find it difficult to simultaneously  give full effect both to the logic of Davis and
to the prudence of the parsimony provision.1
        The district judge thoroughly articulated—not once, but twice—his reasons for the variance,
and in the end obviously felt that Hairston’s 60-month sentence was “sufficient, but no greater than
necessary” to comply with the purposes of § 3553(a). Now imagine if, in a subsequent case, the
same district judge is faced with a different defendant who is convicted of violating 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B)(iii), just like Hairston. Imagine further that in the district judge’s mind
this defendant is “more worthy” of a lower sentence than Hairston. The logical thing for the judge
to do, especially if he wishes to give effect to the parsimony provision of § 3553(a), is to sentence
this defendant to a term of less than 60 months. Yet the judge is prevented from doing this—absent
a few potential exceptions largely within the government’s power, see §§ 3553(e) and (f)—because
of the 60-month statutory minimum imposed by Congress under 21 U.S.C. § 841(b)(1)(B)(iii). The
statutory minimum has thus frustrated the district judge’s ability to animate the parsimony provision.
One could argue that Congress’s mandate as to the statutory minimum supersedes its parsimony
mandate under § 3553(a). This supports the government’s argument that Hairston’s 60-month
sentence is unreasonably low. Yet an equally plausible view, under similar logic, is that the
hypothetical defendant’s sentence is unreasonably high.
        The bottom line is that when deciding questions of “substantive unreasonableness” in the
post-Booker, advisory-Guidelines world, we must continue to be wary of substituting our judgment
for that of the district court. We find language from one of our colleagues quite instructive, even
though it was not directed at the statutory minimum problem we face here:
         Very different sentences can be reasonable, because different factors that go into
         sentencing can be weighed differently. There exists no Platonic form of the most
         perfectly reasonable sentence for a particular crime. Reasonable minds can come to
         very different conclusions as to how much punishment is warranted for a particular
         criminal act. . . . Thus when Congress provides a range of punishments for a
         particular crime, there is no such thing as the “ideal” punishment that decision
         makers are trying to approach in determining the sentence. The factors that Congress
         requires us to consider can simply be weighed differently—actually very
         differently—by different reasonable people.
United States v. Borho, 485 F.3d 904, 917 (6th Cir. 2007) (Rogers, J., dissenting). Similarly, when
Congress fixes in stone the absolute minimum punishment for a particular crime, district courts are
even further constrained in their ability to mete out an “ideal” punishment. And when district courts
are faced with these constraints, appellate courts should be even more cautious before they vacate
a given punishment as substantively unreasonable.

         1
           We also note that in addition to his 60-month jail term, Hairston received 5 years of supervised release, a
period at the upper end of the range. Thus, to the extent that a defendant’s sentence is to be viewed as including not just
a prison term but also other liberty-restrictive provisions (such as supervised release or probation), there is room to
sentence a defendant “more worthy” than Hairston to a lesser sentence: simply impose the 60-month minimum plus a
period of supervised release that is less than five years.
No. 06-4072        United States v. Hairston                                        Page 8


                                               III
      For all of the above reasons, we AFFIRM the judgment of the district court.
No. 06-4072           United States v. Hairston                                                 Page 9


                                       __________________
                                            DISSENT
                                       __________________
         ALICE M. BATCHELDER, Circuit Judge, dissenting. I agree with the majority that
Hairston’s sentence is procedurally reasonable. In fact, this court cannot ask more of a district court,
in terms of explaining the specific reasons for his sentence based on 18 U.S.C. § 3553(a), than the
district court did in this case. I dissent from the majority’s opinion, however, because Hairston’s
sentence is substantively unreasonable.
        I. THE SENTENCE REDUCTION CONSTITUTED A DEPARTURE, NOT A VARIANCE
        As a preliminary matter, I think it is useful to distinguish between a departure and a variance.
The majority correctly points out that this case involves a departure, and not a variance. A departure
occurs when a court lowers a defendant’s sentence based on Chapter 5 of the Guidelines. United
States v. Cousins, 469 F.3d 572, 577 (6th Cir. 2006). A variance, on the other hand, also known as
a non-Guidelines departure, occurs when a court lowers a defendant’s sentence based on factors
found in 18 U.S.C. § 3553(a). Id. We have emphasized the distinction between departures and
variances in the past, United States v. Davis, 458 F.3d 491, 497 (6th Cir. 2006), and — at least thus
far — have simply assumed that the proportionality test at issue in this case applies to both
departures and variances. United States v. Husein, 478 F.3d 318, 332 (6th Cir. 2007).
          II. THE DISTRICT COURT’S SENTENCE IS SUBSTANTIVELY UNREASONABLE
         As the majority points out, the “farther the judge’s sentence departs from the guidelines
sentence . . . the more compelling the justification based on factors in section [18 U.S.C.] 3553 (a)
must be.” Davis, 458 F.3d at 496 (internal citations omitted). This court can still find a sentence
substantively unreasonable even if the district court, properly applying the Guidelines, clearly
considering the § 3553(a) factors, and explaining its reasoning, calculates that sentence properly.
Id. (citing United States v. Cage, 451 F.3d 585, 591 (10th Cir. 2006)). In Davis, we reversed and
remanded the district court’s sentence because the court had imposed, essentially, the lowest
possible prison sentence. We concluded that “the sentence represents the most extreme variance
possible, leaving no room to make reasoned distinctions between Davis’s variance and the variance
that other, more worthy defendants may deserve.” Id. at 499. That is, we refused to accept a
sentence that would leave no room for a more lenient sentence for a more deserving defendant. In
the case at bar, the majority is merely endorsing the same sentencing mistake we found
objectionable in Davis.
        The issue in this case is not that the district court reduced Hairston’s sentence to 60 months
in prison from a Sentencing Guidelines range of 121-151 months in prison, a 51% reduction. As the
majority correctly points out, this court recently accepted as substantively reasonable a sentence in
which the district court awarded the defendant a 99.91% reduction in sentence. Husein, 478 F.3d
at 333. The difference, however, is that the court in Husein found it difficult to imagine “more
worthy defendants,” short of those acquitted, which distinguishes that case from Davis. Id. at 334.
The majority does not appear to contend that, in the case at bar, Hairston is the most worthy crack
dealer.
        Hairston was convicted of dealing five grams of cocaine base in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B)(iii). Moreover, Hairston had a criminal history category of IV, and he
possessed a firearm at the time of his arrest. Hairston’s actions since his arrest are commendable,
but he simply complied with the terms of his release. That does not entitle him to the minimum
sentence. Furthermore, as the government correctly points out, the majority is rewarding Hairston
No. 06-4072               United States v. Hairston                                                           Page 10


for having a checkered criminal past, and now rehabilitating himself by complying with the terms
of his release. Although Hairston’s renewed determination to be a contributing member of society
warrants some departure from the Guidelines, a departure down to the minimum sentence mandated
by Congress is substantively unreasonable.
        The problem in this case, as it was in Davis, is that the district court sentenced Hairston to
the minimum possible prison sentence, “leaving no room to make a reasoned distinction” between
Hairston and more worthy defendants. Davis, 458 F.3d at 499. The majority attempts to distinguish
Davis by noting that the defendant in that case was not subject to a statutory minimum. Hairston,
the majority claims, does not suffer from the same problem from which the defendant in Davis
suffered, because Hairston was sentenced to the statutory minimum of 60 months, rather than
essentially zero days in prison. Extrapolating the majority’s logic, then, Hairston is not Davis
because Hairston at least received some prison time. Thus, the majority claims, this “is a tougher
case, because it forces us to reconcile a statutory minimum with the so-called ‘parsimony provision’
of § 3553(a), which commands a sentencing judge to ‘impose a sentence sufficient, but no greater
than necessary, to comply with the purposes set forth in [§ 3553(a)(2)].’” Difficult or not, Davis still
requires a sentencing judge to leave “room to make reasoned     distinctions” between less worthy and
more worthy defendants. Husein, 478 F.3d at 333-34.1
        In deflecting the government’s well-reasoned argument that a hypothetically more worthy
defendant cannot possibly get a lesser sentence than Hairston’s, the majority inexplicably exclaims
that “an equally plausible view, under similar logic, is that the hypothetical defendant’s sentence is
unreasonably high.” (emphasis original). That “plausible view” is not plausible here, because, in
our system of governance, when Congress creates a mandatory minimum sentence in a statute,
judges generally lack the “legal power to depart downward, no matter how unusual the special
circumstances that call for leniency.” Harris v. United States, 536 U.S. 570 (2002) (Breyer, J.,
concurring).
        Congress created the mandatory minimum of 60 months when it passed 21 U.S.C. § 841
(b)(1)(B)(iii). In so doing, Congress mandated that anyone who violates § 841 (b)(1)(B)(iii) receives
a baseline sentence of at least 5 years. Consequently, it matters not if a court believes that a
defendant more worthy than Hairston is entitled to a prison sentence shorter than 60 months. Courts
do not have the authority to make that determination; Congress has already made it for us. If Mother
Teresa sold 5 grams of crack then     she could not possibly get less prison time than the majority
opinion approves for Hairston.2 There are clearly “more worthy defendants” than Hairston.
Therefore, Hairston’s sentence is not substantively reasonable. Davis, 458 F.3d at 499.
                                                III. CONCLUSION
       Respectfully, I cannot concur in the majority’s holding that Hairston’s sentence is
substantively reasonable.



         1
          In footnote 1, the majority states that Hairston’s sentence is not the minimum because he will be subject to
5 years of supervised release, “a period at the upper end of the range.” (emphasis original). This, the majority says,
leaves room for a more worthy defendant to get a lesser sentence, because the court could simply impose a shorter period
of supervised release. Such logic merely serves as an end-run around the requirements of Davis. Certainly, most people
would prefer a greater period of supervised release to even a minimal period of incarceration.
         2
           Under the Sentencing Guidelines Manual § 5K.1, upon motion of the government the court can depart below
the mandatory minimum in sentencing a defendant who provides substantial assistance in the investigation or prosecution
of another. Melendez v. United States, 518 U.S. 120, 125-26 (1996); United States v. McIntosh, 484 F.3d 832, 835 (6th
Cir. 2007). That provision is inapplicable here because the government did not make such a motion on Hairston’s behalf.
