                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 10a0036n.06

                                            No. 08-6255                                FILED
                                                                                    Jan 22, 2010
                           UNITED STATES COURT OF APPEALS                     LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                  ON APPEAL FROM THE
                                       )                  UNITED STATES DISTRICT
v.                                     )                  COURT FOR THE WESTERN
                                       )                  DISTRICT OF TENNESSEE
SAMUEL ROLACK,                         )
                                       )
                                                                OPINION
      Defendant-Appellant.             )
_______________________________________)


Before: MARTIN and WHITE, Circuit Judges, and ZOUHARY*, District Judge.

       WHITE, Circuit Judge. Defendant Samuel Rolack pleaded guilty of being a felon in

possession of a firearm and was sentenced to 57 months’ imprisonment, within the Guidelines range

of 57 to 71 months. Rolack appeals his sentence, asserting that the district court committed

procedural error in failing to recognize that under recent Supreme Court precedent it had discretion

to vary from or reject on policy grounds the two-level enhancement under U.S.S.G. § 2K2.1(b)(4) for

possession of a stolen firearm (which is applicable without regard to whether the defendant knew or

should have known the gun was stolen). We affirm.

                                                 I.

       The revised pre-sentence report outlines the offense conduct:




        *
         The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio,
sitting by designation.
No. 08-6255
United States v. Rolack

               On April 27, 2007, Memphis Police Officers assigned to the Organized Crime
       Unit (OCU) were investigating a drug complaint at the Longview Apartment
       Complex. Detectives observed the defendant, Samuel Rolack, engage in a hand-to-
       hand transaction with another individual, then get into the passenger side of a vehicle
       and depart the scene. Detectives stationed at the scene advised other detectives, over
       the radio, of the transaction that took place and a description of the vehicle Rolack
       occupied. The vehicle was located and Rolack was observed sitting in the vehicle
       with the passenger door open. As detectives approached Rolack and identified
       themselves, Rolack began reaching for his waistband. Rolack was then detained by
       the officers. When asked if he was in possession of a weapon, Rolack responded, yes,
       in my waistband. Officers recovered a loaded .40 caliber Glock handgun from
       Rolack’s waistband. Officers conducted a pat-down of Rolack and discovered a clear
       plastic bag in his pocket containing 50.24 grams of marijuana and another clear plastic
       bag containing 1.30 grams of crack cocaine. Rolack made several verbal threats to the
       officers as they took him into custody.

               Officers ran a criminal history check on Rolack and determined him to be a
       convicted felon. Officers also ran a check on the firearm and determined it was not
       manufactured in the state of Tennessee and therefore traveled in interstate commerce.
       The firearm was reported stolen on July 1, 2006, in a theft from a motor vehicle.

       A federal grand jury returned an indictment charging Rolack with being a felon in possession

of a firearm, 18 U.S.C. § 922(g). Pursuant to a plea agreement, Rolack pleaded guilty to the one-

count indictment, and the government recommended a sentence at the low end of the Guidelines

range. Over Rolack’s objection to the 2-level enhancement for possession of a stolen firearm,

U.S.S.G. § 2K2.1(b)(4), the court adopted the PSR’s Guidelines range of 57 to 71 months, and

sentenced Rolack at the low end, to 57 months’ imprisonment.

                                                 II.

       After United States v. Booker, 543 U.S. 220 (2005), the sentencing guidelines are advisory,

rather than mandatory, and “appellate review of sentencing decisions is limited to determining

whether they are ‘reasonable.’” Gall v. United States, 552 U.S.38, 46 (2007). “[C]ourts of appeals


                                                 2
 No. 08-6255
 United States v. Rolack

must review all sentences . . . under a deferential abuse-of-discretion standard.” Gall, 552 U.S. at 41;

United States v. Grossman, 513 F.3d 592, 595 (6th Cir. 2008). The review is two-tiered: the court

must review for both procedural and substantive error. Gall, 552 U.S. at 51.

       Under Gall, procedural errors include “failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen

sentence. . .” Gall, 552 U.S. at 51. “A sentence may be considered substantively unreasonable where

the district court “‘select[s] the sentence arbitrarily, bas[es] the sentence on impermissible factors,

fail[s] to consider pertinent § 3553(a) factors or giv[es] an unreasonable amount of weight to any

pertinent factor.’” United States v. Collington, 461 F.3d 805, 808 (6th Cir. 2008) (quoting United

States v. Webb, 403 F.3d 373, 385 (6th Cir. 2005)). In this circuit, a sentence that falls within the

Guidelines enjoys “a rebuttable presumption of reasonableness,” and the defendant bears the burden

of rebutting this presumption. United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006).

                                                   A

       At issue is U.S.S.G. § 2K2.1(b)(4), which provides in pertinent part, “If any firearm . . . was

stolen, increase by 2 levels.” The Commentary to the Guideline renders irrelevant the defendant’s

lack of knowledge that the firearm was stolen.1


        1
            U.S.S.G. § 2K2.1 cmt. n.8(B) provides:

         8. Application of Subsection (b)(4). –
               (B) Knowledge or Reason to Believe. – Subsection (b)(4) applies
               regardless of whether the defendant knew or had reason to believe
               that the firearm was stolen . . .

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No. 08-6255
United States v. Rolack

      In United States v. Murphy, 96 F.3d 846, 848-49 (6th Cir. 1996)2, this court rejected the


       2
        This court’s pre-Booker decision in Murphy, on which the district court relied, rejected the
defendant’s argument that “to impose the [§ 2K2.1(b)(4)] enhancement in the absence of proof that
he knew the weapon was stolen violates his due process rights.” 96 F.3d at 848. The Murphy court
noted:
                [W]e are not the first court to so hold: every other court to consider the
       question has concluded that the lack of a mens rea requirement in U.S.S.G. §
       2K2.1(b)(4) comports with constitutional requirements. United States v. Griffiths,
       41 F.3d 844, 845-46 (2d Cir. 1994) . . .; United States v. Richardson, 8 F.3d 769, 770
       (11th Cir. 1993) . . . ; United States v. Sanders, 990 F.2d 582, 584 (10th Cir. [1993]
       . . .; United States v. Goodell, 990 F.2d 497, 499 (9th Cir. 1993); United States v.
       Schnell, 982 F.2d 216, 219 (7th Cir. 1992); [United States v.] Mobley, 956 F.2d
       [450,] 452, 459 (3d Cir. 1992); United States v. Singleton, 946 F.2d 23, 27 (5th Cir.
       1991) . . . ; United States v. Taylor, 937 F.2d 676, 682 (D.C. Cir. 1991); United
       States v. Amerson-Bey, 898 F.2d 681, 683 (8th Cir. 1990). We join with those courts
       in concluding that since “the upward adjustment for possession of a stolen firearm
       does not stand alone as an independent crime but is part of a sentencing court’s quest
       to formulate a proper sentence,” the holdings in Staples [v. United States, 511 U.S.
       600 (1994), that in order to sustain a conviction for the possession of an unregistered
       firearm under 26 U.S.C. § 5861(d), based on defendant’s possession of a machine
       gun, the government had to prove that the defendant knew that his firearm possessed
       characteristics bringing it within the scope of the statute] and related decisions do not
       speak to our decision today. Singleton, 946 F.2d at 26.

              We observe, moreover, the well-settled principle that “[a] statute may provide
       criminal liability without mens rea consistent with due process if it is a regulatory
       measure in the interest of public safety.” Goodell, 990 F.2d at 499. And, as the
       Goodell court explained, in construing an earlier version of this sentencing guideline,

               [t]he strict liability enhancement for possession of a stolen firearm is
               rationally related to the legitimate governmental goal of crime
               prevention: § 2K2.1(b)(2) was promulgated on the premise that
               “stolen firearms are used disproportionately in the commission of
               crimes.” Further, an ex-felon who obtains a stolen firearm is more
               culpable than one who legally obtains a firearm. The omission of a
               mens rea requirement for the stolen gun sentencing enhancement
               under § 2K2.1(b)(2) does not violate due process.
      Id. (citations omitted).
Murphy, 96 F.3d at 849.

                                                  4
No. 08-6255
United States v. Rolack

argument that the lack of a scienter requirement in § 2K2.1(b)(4) is contrary to the Due Process

Clause of the Fifth Amendment. Subsequent to Murphy, this circuit has upheld application of §

2K2.1(b)(4) in the absence of a scienter requirement both before and after Booker was decided in

2005. See United States v. Fouse, 250 F. App’x 704, 708-09 (6th Cir. 2007) (unpublished

disposition); United States v. Burns, 109 F. App’x 52, 54-56 (6th Cir. 2004) (unpublished disposition)

(revisiting the enhancement after Blakely v. Washington, 542 U.S. 296 (2004), and upholding it).3

        On appeal, Rolack argues that the district court failed to recognize that, despite Murphy, it had

discretion to reject and vary from the Guidelines under post-Booker cases, including United States

v. Kimbrough, 552 U.S. 85, 110 (2007) (holding that “it would not be an abuse of discretion for a

district court to conclude when sentencing a particular defendant that the crack/powder disparity

yields a sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a mine-run case”),

and Spears v. United States, 129 S. Ct. 840, 842-44 (2009)4 (clarifying Kimbrough, noting that

“district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based




         3
           In United States v. Earl Booker, No. 05-1929, 2007 WL 2492427, *5 (6th Cir. Sept. 5, 2007)
(unpublished disposition), a case not cited by either party that was decided after Rita but before
Kimbrough, a panel of this court again rejected the defendant’s challenge to the 2-level enhancement
for possession of a stolen firearm on the basis that he never knew the gun was stolen, noting:
“because the guideline does not contain a mens rea requirement, as [the defendant] acknowledges
. . . . and because [the defendant] acknowledges that the gun was in fact a stolen weapon, the district
court did not err in applying the enhancement.”
         4
             Spears was decided on January 21, 2009, after Rolack was sentenced on September 25,
2008.

                                                   5
No. 08-6255
United States v. Rolack

on a policy disagreement with those Guidelines” and not simply based on an individualized

determination that they yield an excessive sentence in a particular case).5

       At the district court level, the argument that the district court should vary from the Guidelines

range based on a policy disagreement with the enhancement was intertwined with the argument that,

in light of subsequent case law, Murphy no longer controls regarding Rolack’s objections to the

application of U.S.S.G. § 2K2.1(b)(4). The latter argument contends that the district court should

revisit the issues raised in Murphy – the constitutionality and propriety of applying the enhancement

in the absence of a finding of scienter; the former argument contends that although Murphy is

controlling on the constitutionality of the Guideline commentary, the district court may nevertheless

on its own decline to apply the enhancement when it yields a sentencing range in excess of a sentence

that is “‘sufficient, but not greater than necessary’ to accomplish the sentencing goals advanced in §

3553(a)(2).” See Kimbrough, 552 U.S. at 111.

       Rolack relies on United States v. Handy, 570 F. Supp. 2d 437, 439 (E.D.N.Y. 2008), a 43-

page opinion in which Senior United States District Judge Jack Weinstein held invalid the Guidelines

Commentary’s elimination of the scienter requirement.6 In the instant case, the district court


        5
         During the pendency of this appeal, this court held that “the authority recognized in Spears
to reject on policy grounds an otherwise applicable aspect of the Sentencing Guidelines” is not
limited to the crack cocaine context. United States v. Herrera-Zuniga, 571 F.3d 568, 583-85 (6th
Cir. 2009) (noting that the circuits that have taken a definitive position on the question whether the
authority recognized in Kimbrough and confirmed in Spears is limited to the crack-powder cocaine
context are uniformly in accord that it is not). Policy-based challenges to the Guidelines are more
properly construed as procedural, rather than substantive, challenges. Id. at 583 n.8.
        6
         Judge Weinstein discussed the deference due the Sentencing Commission, the history of the
stolen-firearm enhancement and commentary, case law addressing the issue and recent cases

                                                  6
No. 08-6255
United States v. Rolack

concluded it was bound by Murphy, and that the enhancement is applicable; the court did not directly

address whether it had discretion to reject or vary from the 2-level enhancement based on a

disagreement with the Guideline.

                                   B - Procedural Reasonableness7

       To the extent Rolack’s sentencing memorandum and argument at sentencing presented a direct

challenge to U.S.S.G. § 2K2.1(b)(4)’s constitutionality and applicability, the district court addressed

that argument, correctly, and concluded that Murphy continues to stand for the proposition that

application of the enhancement is constitutional and proper, even where knowledge of the firearm’s

stolen character is not shown.

       Moreover, the district court correctly calculated the applicable Guidelines range, gave both

parties opportunity to argue for the sentence they deemed appropriate, and considered the § 3553

factors to determine whether they supported a below-Guidelines range sentence, as Rolack requested.8


addressing sentencing, including Rita, Gall, and Kimbrough, and held invalid the Commentary to
U.S.S.G. § 2K2.1(b)(4), concluding “such a rule, devoid of any mens rea connection, is irrational,
is inconsistent with the Constitution and criminal laws of the United States, and is void.” Among
the court’s reasons for holding the enhancement invalid was that the Sentencing Commission’s
decision to exclude a scienter requirement was not supported by an adequate policy rationale.
Handy, 570 F. Supp. 2d at 452-53, 478-80.
        7
         As to substantive reasonableness, Rolack does not argue that the district selected the
sentence arbitrarily, based the sentence on impermissible factors, failed to consider pertinent §
3553(a) factors, or gave an unreasonable amount of weight to any pertinent factor. Collington, 461
F.3d at 808 (quoting Webb, 403 F.3d at 383).
        8
            Before imposing sentence, the district court stated:

               Now I have to look at a number of factors. I have to look at the advisory
        guidelines and those have been determined to be 57 to 71 months.

                                                    7
No. 08-6255
United States v. Rolack

The court did not treat the Guidelines as mandatory, and did not select the sentence based on clearly

erroneous facts (Rolack did not object to the PSR’s facts, which included that the firearm had been

reported stolen in 2006). Gall, 552 U.S. at 51.

       It is a separate question, however, whether the district court adequately explained its chosen

sentence in light of Rolack’s argument that, despite Murphy, the court had discretion to reject the 2-

level enhancement for possessing a stolen firearm.9 We conclude that although the district court did


               I have to look at the need to punish you and protect the community. And as
        I mentioned before in this community at least guns and drugs are a big problem. I
        would suggest that a substantial sentence is warranted in order to protect the
        community.

               I have to look at imposing a sentence that is sufficient but not greater than
        necessary to punish you and protect the community.

               Your guideline range is – is, I believe, reasonable, in light of all of the
        circumstances in this case.

                Because this gun charge came about in the context of what looks like an
        actual drug deal, I don’t believe that going below the guidelines is appropriate in this
        case because it’s a very serious activity and one that harms a lot of people.

               So I am going to honor the commitment to sentence you at the low end of the
        guideline range. . . . [See also n.12, infra.]
        9
        To be fair, that two separate arguments were being presented – whether Murphy is still good
law, and whether the court should reject or vary from the enhanced Guidelines range for policy
reasons – may not have been clear to the court. In his sentencing memorandum, defendant argued
that “Murphy no longer controls and eliminates the discussion as to whether Section 2K21(b)(4)(A),
as applied to Mr. Rolack in the instant matter, is appropriate under 18 U.S.C. § 3553(a),” and that
a sentencing court cannot presume that the applicable range is reasonable, but must make an
individualized assessment, and that in this case application of § 2K2.1 without the two-level
enhancement pursuant to § 2K21(b)(4)(A) would result in an appropriate sentence under § 3553(a).
At sentencing, however, Rolack’s argument focused more on whether Murphy was still good law.
Counsel argued, “we believe that post Booker and in particular Kimbrough and Gall that the strict

                                                  8
No. 08-6255
United States v. Rolack

not expressly address whether it recognized that it had discretion to reject or vary from the stolen

firearm enhancement on policy grounds, its remarks at sentencing10 indicate that it concluded that

Rolack had enough reason to believe the firearm was stolen to make application of the enhancement

appropriate, and that it found a 57-month sentence adequate, but not excessive.

        After the court announced its ruling based on Murphy, it entertained argument regarding the

appropriate sentence. At this juncture, defense counsel again argued that the court should opt for a




liability nature of the stolen firearm enhancement is now contrary to law and that it’s an arbitrary and
caprice [sic] enhancement of the sentence where there is no scienter, there is no allegation that Mr.
Rolack knew or should have known that the firearm was stolen” and that “[o]bviously we concede
that in the Sixth Circuit the law is still contrary to our position, but we believe that case, the Murphy
case is now suspect due to Kimbrough and Gall.”
        10
             The district court stated at sentencing:

                THE COURT: All right. First of all, I would agree with the defense that the
        fact that the defendant purchased the gun – purchased the weapon off the street
        doesn’t show conclusively that he knew it was stolen. However, it – it does tend to
        demonstrate that the defendant was at least placed on inquiry notice in purchasing it
        through an irregular channel, such as off the street. So that’s – that’s one factor.

                 But going back to the underlying issue whether or not in light of Kimbrough
        and Gall and Booker whether this two point enhancement for possession of stolen
        property should apply. The jurisprudence in the Sixth Circuit at least does not
        support a showing of unconstitutionality. In fact, the Sixth Circuit and the current
        state of the law suggest that this is a proper application that, as [the prosecutor] said,
        there is [sic] mens rea requirement if the felon is caught in possession of that weapon
        and that weapon is stolen two points should be added, the circuit has said there is a
        rational relationship between the public policy objective and the weapon.

               And so based on the Sixth Circuit law as it stands today, Mr. Perry, I would
        deny your motion. . . .

                                                        9
No. 08-6255
United States v. Rolack

sentence based on the Guidelines range without application of the enhancement.11 The court

addressed this argument directly, concluding that the advisory range was reasonable “in light of all

the circumstances.”12 Thus, while the court did not explicitly state that it recognized it could reject


        11
             Rolack’s counsel argued:

                Well, I think, Your Honor, in light of Your Honor’s ruling, I still would
                submit that a 46 months sentence is appropriate under the 3553(a) factors,
                that would be low end of the guideline range absent the two level
                enhancement.

                        And I do that because of the reasons set forth in the position paper
                and that I articulated today, and that without knowing that it was stolen,
                without any proof of that, we’re punishing him for conduct that he didn’t
                have cause to believe or reason to believe would affect him. And I believe
                that goes to the deterrent effect of the other cases as well.

                       And the 3553(a) factor that states that the sentence should be a just
                sentence and also provide deterrent effect. And I don’t believe this court
                can have a, in these [sic] case, can have a deterrent effect if we’re arbitrarily
                punishing the individuals based on the enhancement.
        12
             The district court stated:

                Okay. Mr. Rolack, the court has determined the advisory guideline in your
        case, while you have got a lot of history, you have three countable offenses, a simple
        possession of a weapon, a controlled substance, and then this felony that I – that I
        talked about earlier, aggravated robbery from ‘06.

                These are all serious offenses, and as the government said, at the time that
        you were apprehend [sic] in this instance it appears that you were actually involved
        in other related criminal conduct, it looks like that you were involved in some kind
        of drug deal, with some kind of hand-to-hand transaction.

                And, Mr. Rolack, the – the problem of drug dealing is one that really hurts the
        overall society, the people that push drugs on the community are really parasites.
                                                ***
                It means that you don’t contribute anything positive, that you take and suck

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No. 08-6255
United States v. Rolack

the enhancement as inconsistent with § 3553(a), but chose not to do so, such a deliberative process

is appropriately inferred from the record.

       For these reasons, we AFFIRM.




        the life out of the community.

                 So it is a very destructive activity and when you combine drugs and guns it’s
        also very dangerous. And I don’t know what your fascination with weapon [sic] may
        be, but I see two offenses that look like they involve guns or violence, but, you know,
        you have got to get your life on track, if you don’t, you will end up in some
        institution for life.

               Now I have to look at a number of factors. I have to look at the advisory
        guidelines and those have been determined to be 57 to 71 months.

               I have to look at the need to punish you and protect the community. And as
        I mentioned before in this community at least guns and drugs are a big problem. I
        would suggest that a substantial sentence is warranted in order to protect the
        community.

               I have to look at imposing a sentence that is sufficient but not greater than
        necessary to punish you and protect the community.

               Your guideline range is – is, I believe, reasonable, in light of all of the
        circumstances in this case.

                Because this gun charge came about in the context of what looks like an
        actual drug deal, I don’t believe that going below the guidelines is appropriate in this
        case because it’s a very serious activity and one that harms a lot of people.

               So I am going to honor the commitment to sentence you at the low end of the
        guideline range. . . .

                                                  11
