                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 16a0090n.06
                                                                                      FILED
                                          No. 14-6138                           Feb 10, 2016
                                                                            DEBORAH S. HUNT, Clerk

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                               )
     Plaintiff-Appellee,                                )
                                                        )
v.                                                      )
                                                        )       ON APPEAL FROM THE
KENNETH RICHARD HODGES, JR.,                            )       UNITED STATES DISTRICT
                                                        )       COURT FOR THE EASTERN
        Defendant-Appellant.                            )       DISTRICT OF KENTUCKY
                                                        )
                                                        )
                                                        )



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

        ALICE M. BATCHELDER, Circuit Judge. In 2014, Kenneth Hodges, Jr. pleaded

guilty to conspiracy to distribute heroin. He now contends that his counsel was ineffective

during the plea-bargaining process and that his sentence is procedurally and substantively

unreasonable. Finding no reversible error, we affirm the district court’s judgment.

                                                I.

        Kenneth Hodges, Jr. and his co-defendants began distributing heroin in Pike County,

Kentucky, in April of 2013. In November 2013, a federal grand jury indicted Hodges and

fourteen co-defendants. The thirty-one count indictment named Hodges in eight counts: one

count of conspiracy to distribute heroin, five counts of distribution of heroin, one count of

possession of heroin with intent to distribute, and one count of possession of oxycodone with

intent to distribute.
No. 14-6138
United States v. Hodges

        Sometime prior to April 28, 2014, Hodges, represented by counsel, attempted to execute

a plea agreement in which he pleaded guilty to only the conspiracy count. His counsel, however,

missed the plea deadline. The government subsequently filed a superseding indictment, which

charged Hodges with the same counts but attributed to him a higher drug quantity (one kilogram

or more of heroin) and created the potential for harsher punishment.

        Hodges then retained new counsel.       The government subsequently offered a plea

agreement in which Hodges pleaded guilty to the conspiracy count of the original indictment—

meaning that the government would dismiss both the remaining counts in the original indictment

and the entire superseding indictment. In return, the new plea agreement stipulated that the

government could “argue for a variance above the applicable guideline range.” Notably, Hodges

stipulated in the new agreement to being “an organizer or leader of a criminal activity that

involved 5 or more participants.” Hodges entered the guilty plea, and the district court accepted

it on April 28, 2014.

        Hodges’s Presentence Report (“PSR”) calculated his offense level as 27 and his criminal

history category as I. The PSR calculated this offense level by attributing to Hodges at least 100

grams but less than 400 grams of heroin. This offense level carried with it a recommended

guidelines range of 70 to 87 months’ imprisonment.

        At sentencing, Hodges requested—and the district court granted—a two-level reduction

because of retroactive      application   of a change in the Sentencing Commission’s

recommendations. This left Hodges with an offense level of 25 and a criminal history category

of I, which called for a recommended range of 57 to 71 months’ imprisonment. The government

then asked the court to vary upward “based on numerous factors.”           First, the government

contended that it could attribute to Hodges one kilogram or more of heroin, despite the fact that



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No. 14-6138
United States v. Hodges

Hodges pleaded to a drug quantity of 100 to 400 grams. Second, the government noted the

history and characteristics of Hodges—that he was older and educated, that he was not an addict,

that he hailed from outside the community, that he had likely been involved in distributing heroin

for some time, and that there was a need to reflect the seriousness of the offense, promote respect

for the law, and dole out just punishment. The government ultimately requested a sentencing

range of 96 to 120 months’ imprisonment.

        The district court agreed that an upward variance was appropriate. But the court refused

to vary as much as the government had requested, noting that Hodges “deserves something” for

his “lack of criminal history.” It settled on 84 months’ imprisonment and twenty years of

supervised release as “a fair sentence in this case for a number of reasons.” First, the court noted

that a lower sentence would create “sentencing disparities in this case alone.” Second, the

sentence “reflects how serious an offense this is, bringing heroin into this community, exposing

young ones to it” such that the sentence “promotes respect for the law, provides just punishment,

and affords adequate deterrence.” Third, the twenty years of supervised release would protect

the public. Fourth, the variance was appropriate “when you consider . . . that the defendant was

.. . the unquestioned leader, when you consider the fact that the defendant is an educated man

that should have known better and should be a role model for those in society.” Hodges’s

counsel objected to the above-guidelines sentence. The court overruled the objection and entered

judgment for 84 months’ imprisonment and twenty years of supervised release. Hodges timely

appealed.

                                                II.

        As an initial matter, we decline to address Hodges’s claim that his counsel was

ineffective because counsel missed the plea deadline. Our general rule is that “a defendant may


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No. 14-6138
United States v. Hodges

not raise ineffective assistance of counsel claims for the first time on direct appeal, since there

has not been an opportunity to develop and include in the record evidence bearing on the merits

of the allegations.” United States v. Woodruff, 735 F.3d 445, 451 (6th Cir. 2013) (internal

quotation marks omitted). We will disregard this general rule only in “rare circumstances.”

United States v. Sypher, 684 F.3d 622, 626 (6th Cir. 2012). Seeing both a need for more factual

development and no countervailing rare circumstances, we “leave the defendant to the preferred

mechanism of raising a claim of ineffective assistance of counsel under 28 U.S.C. § 2255.”

United States v. Williams, 753 F.3d 626, 636 (6th Cir. 2014).

                                               III.

        Hodges also makes several arguments as to why his sentence is unreasonable. “This

Court reviews sentences for procedural and substantive reasonableness.”          United States v.

Adkins, 729 F.3d 559, 563 (6th Cir. 2013).        First, we must ensure that the district court

committed no significant procedural error, “such as failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the

[18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence.” Id. (quoting Gall v. United States, 552 U.S. 38, 51

(2007)).    “If no procedural error occurred, the Court must then ‘consider the substantive

reasonableness of the sentence imposed under an abuse-of-discretion standard.’” Id. (quoting

Gall, 552 U.S. at 51). “The sentence may be substantively unreasonable if the district court

chooses the sentence arbitrarily, grounds the sentence on impermissible factors, or unreasonably

weighs a pertinent factor.”      Id. (internal quotation marks omitted).        “The substantive

reasonableness inquiry takes into account the totality of the circumstances, including the extent

of any variance from the Guidelines range.” United States v. Abdulmutallab, 739 F.3d 891, 908



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No. 14-6138
United States v. Hodges

(6th Cir. 2014) (internal quotation marks omitted). That being said, “if the sentence is outside

the Guidelines range, the court may not apply a presumption of unreasonableness.”            Gall,

552 U.S. at 51.

                                                      A.

        As for procedural reasonableness, Hodges contends that the district court based his

sentence on clearly erroneous facts, namely that he was a professional drug dealer and caused

damage to the community. Although the government argued that Hodges had been selling drugs

for some time, there is no indication that the district court based its sentence on that argument;

the court never mentioned it during its explanation of the sentence. Nor, for that matter, is there

any indication that such a factual finding would be clearly erroneous. The court did, however,

note that Hodges’s offense exposed the community’s youth to a serious drug. It is not clearly

erroneous to conclude that distribution of heroin in a community caused damage to that

community. “Society as a whole is the victim when illegal drugs are being distributed in its

communities.” United States v. Green, 532 F.3d 538, 549 (6th Cir. 2008). To say that Hodges’s

crimes are victimless “is false to the point of absurdity.” United States v. Cole, 526 F. App’x

638, 642 (6th Cir. 2013) (internal quotation marks omitted). Hodges “victimized individuals (by

selling addictive drugs to them) and the community (by making addictive drugs readily available

in the area).” Id. The district court committed no procedural error.

                                                B.

        Hodges also makes several substantive reasonableness arguments. First, he argues that

the district court grounded its sentence on impermissible factors. The first alleged impermissible

factor was the higher drug quantity argued by the government. As he admits in his brief,

however, “the District Court appeared to not sentence Hodges for having 1 kilo of heroin.” In



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No. 14-6138
United States v. Hodges

fact, the district court stated that it was “uncomfortable with the drug quantity” argument

because the government had allowed Hodges to plead to a lower amount, but asked at sentencing

for a sentence based on the higher amount. The court also never mentioned the drug quantity

during its explanation for the variance. The court did not, therefore, ground Hodges’s sentence

in the higher drug quantity.

         Hodges also argues that the district court based his sentence on the impermissible factors

of his age, his education, and his role in the community. These are not impermissible factors,

however. Section 3553(a) requires the district court to consider the history and characteristics of

the defendant. See 18 U.S.C. § 3553(a)(l). Hodges’s age, education, and role in the community

are characterized properly as history and characteristics of the defendant and thus may be

considered by the district court. See United States v. Mesteth, 687 F.3d 1034, 1036 (8th Cir.

2012).

         Second, Hodges argues that the factors the district court considered were already taken

into consideration in his base offense level. We have rejected this exact argument, as it would

mean “that in any case where the Guidelines calculation encompassed all of the § 3553(a)

factors, any sentence outside of the recommended range (whether above or below that range)

always would be substantively unreasonable if the district court again mentioned those factors.”

United States v. Tristan-Madrigal, 601 F.3d 629, 636 n.l (6th Cir. 2010). “This would preclude

the district court from being able to comply with § 3553(a)’s mandate and would have the

practical effect of making the Guidelines again mandatory, which is plainly not the law.” Id.

         Third, Hodges criticizes the district court for its failing to balance correctly the § 3553(a)

factors, specifically by ignoring his lack of criminal history. The district court did not, however,

ignore Hodges’s lack of criminal history; in fact, it explicitly rejected the severity of the



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No. 14-6138
United States v. Hodges

government’s requested variance because of his lack of criminal history. Hodges’s argument

boils down to an assertion that the district court should have balanced the § 3553(a) factors

differently, but that “is simply beyond the scope of our appellate review, which looks to whether

the sentence is reasonable, as opposed to whether in the first instance we would have imposed

the same sentence.” United States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008) (internal

quotation marks omitted).

        Finally, Hodges argues that the district court chose an unreasonable sentence because of

the sentencing disparities between Hodges and other co-defendants. As the district court noted,

however, a true avoidance of sentencing disparities would have led to a higher, not a lower,

sentence for Hodges. Either way, the guidelines are concerned with “national disparities among

the many defendants with similar criminal backgrounds convicted of similar criminal conduct.”

United States v. Houston, 529 F.3d 743, 752 (6th Cir. 2008) (internal quotation marks omitted).

The disparities between co-defendants are not relevant to the sentencing factor in 18 U.S.C.

§ 3553(a)(6). That being said, it was not error for the district court to consider sentencing

disparities among co-defendants. The district court “may exercise [its] discretion and determine

a defendant’s sentence in light of a co-defendant’s sentence” even though it is not required to do

so. United States v. Presley, 547 F.3d 625, 631 (6th Cir. 2008). The district court thus did not

abuse its discretion in this respect or otherwise, and Hodges’s sentence is not substantively

unreasonable.

                                                IV.

        For the foregoing reasons, finding no reversible error, we affirm.




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