                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0156n.06
                           Filed: February 26, 2007

                                           No. 05-6778

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA                          )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )
                                                  )   ON APPEAL FROM THE UNITED
ADRIEL SNOWDEN,                                   )   STATES DISTRICT COURT FOR THE
                                                  )   EASTERN DISTRICT OF TENNESSEE
       Defendant-Appellant.                       )   AT CHATTANOOGA
                                                  )



Before: GIBBONS, MCKEAGUE, Circuit Judges; and TARNOW, District Judge.*

       JULIA SMITH GIBBONS, Circuit Judge. Defendant Adriel Snowden appeals the district

court’s classification of Snowden as a career criminal, as well as the overall reasonableness of his

240-month sentence for possession with intent to distribute five grams or more of cocaine base in

violation of 21 U.S.C. § 841(a)(1), and knowing possession of a firearm in violation of 18 U.S.C.

§ 922(g). Because the district court correctly identified two or more prior felony convictions for

controlled substances in determining Snowden’s career criminal status, and because the court

considered the relevant 18 U.S.C. § 3553(a) factors in arriving at a reasonable sentence, we affirm

the judgment of the district court.




       *
       The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of
Michigan, sitting by designation.
                                                 I.

       On January 27, 2005, officers with the Athens, Tennessee, Police Department served a search

warrant on Snowden’s residence at 805 Haley Street, Apartment 1. When officers served the

warrant, they met Snowden coming out of the residence. Snowden was arrested and searched.

Officers found a brown bottle containing approximately seven grams of crack in Snowden’s right

pants pocket. Inside his residence, officers located another approximately eight grams of crack

behind the water heater in the kitchen. The laboratory report indicates the total amount of drugs

confiscated was 15.7 grams. In addition, a Glock 9-mm handgun and a Raven Arms .25 caliber

handgun were found in the residence, though the exact location is unknown.

                                                II.

       On April 12, 2005, a grand jury sitting in the Eastern District of Tennessee, Chattanooga

Division, returned a three-count indictment against Snowden. Count I charged that on January 27,

2005, Snowden possessed five grams or more of cocaine base (crack) with intent to distribute in

violation of 21 U.S.C. § 841(a)(1). Count II charged that on January 27, 2005, Snowden, having

been previously convicted of a felony, knowingly and intentionally possessed a Glock 9-mm

handgun in violation of 18 U.S.C. § 922(g). Count III charged that on January 27, 2005, Snowden,

having been previously convicted of a felony, knowingly and intentionally possessed a Raven .25

caliber handgun, in violation of 18 U.S.C. § 922(g). On August 4, 2005, Snowden appeared before

the district court and pled guilty to Count I of the indictment, and the government moved to dismiss

the remaining counts at that time. The United States Probation Office prepared a Presentence

Investigation Report (Presentence Report). Because Snowden was determined to be a career




                                                 2
offender, his offense level of 34 was calculated under § 4B1.1.1 Snowden’s guideline range was 262

to 327 months.

       In determining Snowden’s career criminal status, the probation officer relied upon

seven previous felony drug distribution convictions. Snowden objected to the number of

predicate offenses found by the probation officer, asserting that all the cases in question were

related and therefore should count only as a single prior offense:

       While separate case numbers were apparently assigned, the offenses are
       clearly designated as counts in the indictment and not separate or unrelated
       cases. The single state indictment indicates the existence of a single
       confidential informant who purchased all of the drugs referenced in the
       indictment. There were no intervening arrests, and sentencing on all counts
       was held on August 8, 2002 with sentences running concurrently.

At his sentencing hearing, Snowden argued that “[t]he basis for that contention is, among other

things, that at least six of the seven, the sentences were run concurrently [sic] and occurred on

August 8th of 2002.”

       The district court found it unnecessary to determine whether the offense linked to the April

16, 2001, arrest and the four offenses linked to a May 17, 2001, arrest should in fact be treated as

one. The court determined that because the offense on November 12, 2001, unquestionably occurred

after Snowden’s arrests on April 16 and May 17, 2001, the arrests could not be related and therefore

must count separately in determining Snowden’s career offender status. The district court then found

it unnecessary to address Snowden’s other objections, and Snowden’s counsel agreed.



       1
         Snowden would have been in criminal history category VI even if he had not been a
career offender. His criminal history subtotal was 21, to which two points were added because
he was on probation at the time of the instant offense and one point was added because the
instant offense was committed within two years of his release from custody. The total of 24
points is well above the 13 points required to be in Category VI.

                                                   3
       The district court sentenced Snowden to 240 months’ imprisonment, eight years of

supervised release, and a $100.00 special assessment. The below-guideline sentence reflected a two-

level reduction given pursuant to the government’s 5K1.1 motion for reduction based on Snowden’s

substantial assistance. Snowden filed a timely notice of appeal on November 10, 2005.

                                                  III.

       In reviewing a district court’s application of the Sentencing Guidelines, this court will

“accept the findings of fact of the district court unless they are clearly erroneous and [will] give due

deference to the district court’s application of the guidelines to the facts.” 18 U.S.C. § 3742(e);

United States v. Williams, 355 F.3d 893, 897-98 (6th Cir. 2003). This court reviews de novo a

district court’s determination that a defendant is a career offender within the meaning of U.S.S.G.

§ 4B1.1. United States v. Wilson, 168 F.3d 916, 926 (6th Cir. 1999). Legal conclusions regarding

the Sentencing Guidelines are also reviewed de novo. United States v. Latouf, 132 F.3d 320, 331

(6th Cir. 1997).

                                                 IV.

       Snowden first argues that the district court erred in finding him to be a career offender.

Snowden’s general contention is that all alleged predicate offenses were part of a single scheme or

plan of drug transactions, often involving the same customers. He explains that “six of the seven

predicate cases were, at least functionally, consolidated for sentencing with all but one of the cases

(03-192) being heard on August 8, 2002, though no formal order of consolidation was entered.”

       A defendant is a career offender if: (1) he was at least eighteen years old at the time he

committed the instant offense; (2) the instant offense is a felony that is either a crime of violence or

a controlled substance offense; and (3) the defendant has at least two prior felony convictions for


                                                   4
either a violent crime or a controlled substance offense. U.S.S.G. § 4B1.1; see Wilson, 168 F.3d at

926. Snowden does not contest the first two prongs of the career offender guideline, but argues that

his prior convictions were related for the purposes of the Sentencing Guidelines and that therefore

he should not be deemed a career offender under the third prong.

       Application Note 3 of U.S.S.G. § 4A1.2 explains when a finding of “related cases” is

appropriate:

       Related Cases. Prior sentences are not considered related if they were for offenses
       that were separated by an intervening arrest (i.e., the defendant is arrested for the first
       offense prior to committing the second offense). Otherwise, prior sentences are
       considered related if they resulted from offenses that (1) occurred on the same
       occasion, (2) were part of a single common scheme or plan, or (3) were consolidated
       for trial or sentencing.1

U.S.S.G. § 4A1.2, Application Note 3. The Presentence Report identifies seven prior felony drug

distribution offenses. Even in the most generous interpretation, Snowden still qualifies as a career

offender. Three of the prior offenses were separated by an intervening arrest, committed on different

dates, and occurred in different locations. Snowden was arrested separately on April 16, 2001, May

17, 2001, November 12, 2001, and May 20, 2003. Furthermore, at least two of the offenses were

charged in separate documents and received separate court numbers. Snowden admittedly was

arrested on state drug felony offenses, pled guilty and was sentenced before he was arrested for the

May 20, 2003, offense, and this intervening arrest and conviction prohibit his prior convictions from

being considered “related” offenses under the Sentencing Guidelines. See United States v. Coleman,


       1
         Note 3 of § 4A1.2 goes on to discuss scenarios in which deeming various offenses
“related” is inappropriate. These examples address scenarios that would otherwise qualify as
“related,” but nevertheless are so serious that an upward departure is appropriate. Snowden
argues for the opposite: he was deemed a career offender by the probation officer and district
court, but believes his offenses are so intertwined as to qualify as “related,” and accordingly he is
not a career offender.

                                                   5
964 F.2d 564, 566-67 (6th Cir. 1992) (finding two robbery convictions were not related despite the

fact that both occurred on the same day, judgment was pronounced on the same day, and defendant

received concurrent sentences). The district court correctly found that two of the prior offenses were

separated by an intervening arrest, and accordingly there is no possible interpretation that would not

result in career offender status.2

                                                 V.

        Snowden also argues that without regard to his career offender status, his sentence is

nevertheless unreasonable.3 He asserts that the sentence imposed “is not only crushing in the amount

of time, 240 months, but is also so disparate from Defendant’s previous State sentences as to be

grossly unfair and greater than necessary.”

        Under United States v. Booker, 543 U.S. 220 (2005), this court continues to calculate and



        2
         Snowden notes that only four of the seven predicate offenses were listed in his 21 U.S.C.
§ 851 Notice of Intent to Use Prior Convictions to Enhance Punishment, and then argues that as a
result the unlisted offenses cannot be used to establish Career Offender status. Snowden
apparently, and appropriately, abandons this argument in his next sentence: “However, see
United States v. Mans, 999 F.2d 966, 969 (6th Cir. 1993) and United States v. Brannon, 7 F.3d
516 (6th Cir. 1993) which have previously rejected this or similar arguments.” (Final Br. of
Appellant at 16.) As Snowden helpfully notes, this Notice of Intent argument is meritless, as the
§ 851 requirements apply only to a statutory sentence enhancement, not a sentence enhancement
under § 4B1.1 of the Sentencing Guidelines.
        3
         The government argues that a district court’s failure to exercise its discretion and grant a
downward departure is not reviewable. (Final Br. of Appellee at 12 (citing United States v.
Owusu, 199 F.3d 329, 349 (6th Cir. 2000)).) According to the government, this court has
jurisdiction only when the district court incorrectly believed that it lacked any authority to
consider defendant’s mitigating circumstances as well as the discretion to deviate from the
guidelines. However, because Snowden is challenging the reasonableness of his sentence, not
solely the district court’s decision not to grant a downward departure, the case law cited by the
government is not controlling and this court has jurisdiction over Snowden’s appeal on this issue.



                                                  6
consider the range as determined by the Sentencing Guidelines, though that range is now merely

advisory. See United States v. Richardson, 437 F.3d 550, 555 (6th Cir. 2006) (finding that

conclusions about prior convictions and career criminal status are treated the same before and after

Booker). A district court should consider the Guidelines range as well as the 18 U.S.C. § 3553(a)

factors, though a court may depart from the Guidelines if necessary to impose a reasonable sentence.

United States v. Cage, 458 F.3d 537, 543 (6th Cir. 2006). As stated in Booker, “Section 3553(a)

remains in effect, and sets forth numerous factors that guide sentencing. Those factors in turn will

guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable.”

Booker, 543 U.S. at 261. The statute continues to require judges to impose sentences that reflect the

seriousness of the offense, promote respect for the law, provide just punishment, afford adequate

deterrence, and protect the public. Id. at 260.

        This court has noted that there are “both substantive and procedural components to our

reasonableness review,” United States v. McBride, 434 F.3d 470, 476 n.3 (6th Cir. 2006), and in the

instant case the district court’s decision complies with both. A sentence may be procedurally

unreasonable when the district judge fails to consider the applicable guidelines range or neglects to

consider the other factors listed in § 3553(a) and instead simply selects what the judge deems an

appropriate sentence without the required considerations. Webb, 403 F.3d at 383-84. Nevertheless,

the district court is not required to reference explicitly each of the § 3553(a) factors; there need only

be sufficient evidence in the record to demonstrate the court’s consideration of the factors. McBride,

434 F.3d at 476 n.3 (citing Webb, 403 F.3d at 383-85)

        Here, the district court did just that. The court concluded:

        [T]he guideline range affords the Court more than enough discretion in imposing an


                                                   7
        appropriate sentence [in this case]. Such a sentence will reward the defendant for the
        substantial assistance that he’s rendered the government; it will also serve to reflect
        the seriousness of the offense, provide just punishment for the offense, to afford
        adequate deterrence for this type of criminal conduct, and also to protect the public
        from future crime that Mr. Snowden might be inclined to commit.

These considerations directly comply with those laid out in § 3553. See 18 U.S.C. § 3553(a).

Hence, the sentence is procedurally reasonable.

        Snowden does not present any legally cognizable justification for finding the district court’s

sentencing substantively unreasonable. A sentence may be held substantively unreasonable if the

district court (1) selected the sentence arbitrarily, (2) based the sentence on impermissible factors,

or (3) gave an unreasonable amount of weight to a particular factor. United States v. Collington, 461

F.3d 805, 808 (6th Cir. 2006). Snowden complains of the considerable disparity between his former

state sentences for drug convictions, which were comparatively slight and never more than one year,

and the sentence given by the district court in the instant case, which is substantial at 240 months.4

Snowden notes that his current sentence is a “24-fold increase” and he finds the disparity between

the sentences to be “nothing less than astonishing and unconscionable” in light of the relatively small

amount of drugs involved. Snowden does not, however, cite any authority to substantiate his

argument that a sentencing scheme is required to use graduated punishment to educate and modify

a defendant’s behavior. He has failed to demonstrate that the district court acted arbitrarily or relied

on an impermissible consideration or placed an inordinate weight on a pertinent consideration.



       4
        Snowden also emphasizes the extremely difficult environment in which he was raised.
The district court considered Snowden’s arguments about his background and noted that they had
“some sociological merit” but concluded that they did not entitle Snowden to a below-guideline
sentence. The court noted that sentencing based on such factors was inconsistent with the
philosophy of the present statutory sentencing scheme. This determination does not render
Snowden’s sentence unreasonable.

                                                   8
Accordingly, Snowden’s sentence has not been shown to be substantively unreasonable.

                                               VI.

       For the foregoing reasons, we affirm the judgment of the district court.




                                                9
