                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0095n.06

                                           No. 08-6252

                          UNITED STATES COURT OF APPEALS                              FILED
                               FOR THE SIXTH CIRCUIT                               Feb 16, 2010
                                                                                LEONARD GREEN, Clerk
UNITED STATES OF AMERICA,                       )
                                                )
       Plaintiff-Appellee,                      )
                                                )     ON APPEAL FROM THE UNITED
v.                                              )     STATES DISTRICT COURT FOR THE
                                                )     EASTERN DISTRICT OF KENTUCKY
ANDRE LUNDY,                                    )
                                                )
       Defendant-Appellant.                     )


Before: BATCHELDER, Chief Judge; SUTTON, Circuit Judge; and WISEMAN, District Judge.*


       WISEMAN, District Judge. Defendant-Appellant Andre Lundy challenges the substantive

and procedural reasonableness of his 200-month sentence. Because the sentence imposed by the

district court was both procedurally and substantively reasonable, we affirm.

                                                 I.

       Lundy, a resident of Michigan, transported OxyContin pills into Kentucky with the intent to

sell them, and, while there, was the subject of a controlled drug buy arranged by law enforcement

officers. As part of the controlled buy, a confidential informant arranged to purchase OxyContin

pills from Lundy. The informant was told that he would meet with Lundy’s sister, who would bring

the pills with her to a Sonic restaurant in Corbin, Kentucky.




*
 The Honorable Thomas A. Wiseman, Jr., Senior United States District Judge for the Middle District
of Tennessee, sitting by designation.
No. 08-6252
United States of America v. Lundy


       In January 2008, Lundy’s co-defendant, LaToya Horn—who is not actually Lundy’s

sister—arrived at the Sonic restaurant to make the exchange on Lundy’s behalf. Horn was met by

agents of the Drug Enforcement Agency (“DEA”), and, ultimately, 270 tablets of OxyContin, each

weighing 80 milligrams, were recovered from the backseat of the police cruiser where she had placed

them. After the agents located Lundy at the motel where he was staying, they questioned him about

the OxyContin tablets. During this interview, Lundy admitted that he had come with Horn from

Detroit in order to sell the OxyContin pills in Kentucky. Lundy further admitted that he had

previously made approximately ten such trips.

       Lundy was subsequently indicted on a single count of possessing, with intent to distribute,

a quantity of pills containing OxyContin in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

He pled guilty to the charges but preserved his right to appeal the reasonableness of his sentence.

A Presentence Report (“PSR”) was prepared, which proposed holding Lundy responsible for 4,020

pills based upon a calculation that Lundy had actually trafficked this number of pills over the

“approximately ten” trips he admitted making. The PSR also indicated that, based on his prior

convictions, Lundy qualified for career-offender status.

       At the sentencing hearing, the judge adopted the base offense level of 32 based on the drug-

quantity calculations set forth in the PSR, and then assigned a 2-point increase for being an organizer

or leader in the criminal activity, bringing the offense level to 34. (Sentencing Hr’g. at 23–24.) The

judge then applied a 3-point reduction for cooperation, bringing the total offense level to 31,

corresponding to a guideline sentencing range of 188–235 months imprisonment. (Id. at 25–26.)


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No. 08-6252
United States of America v. Lundy


The judge alternatively found that Lundy’s status as a career offender, when considered with the

maximum statutory punishment of 30 years for the offense, independently yielded an offense level

of 34, which, when reduced by 3 points for cooperation, provided the same total offense level of 31,

with the same sentencing range of 188–235 months under the guidelines. (Id. at 24–26.)

       Lundy, through counsel, objected at the sentencing hearing to the calculation of his base

offense level based on the PSR’s alleged quantity of 4,020 OxyContin pills on the ground that, since

he had pled guilty to possession of only 270 pills, his offense level should be determined solely

based on those pills, which would place him at an offense level of 26. (Id. at 4–5.) Lundy

subsequently modified his objection by testifying that the amount of pills used (4,020) in the PSR

setting his base offense level at 32 was inaccurate; Lundy asserted in open court: “Truth be told, I

came down here with 2,010 pills, okay? . . . [L]ike half. And that’s the truth.” (Id. at 13.) Lundy

also argued that, since his prior crime of violence, bank robbery, was remote (though Lundy

conceded it was “not too remote to be factored in”), the court should rely on that remoteness to

justify a lesser sentence given the advisory nature of the guidelines. (Id. at 8.) He did not, however,

argue that the bank robbery did not constitute a crime of violence as defined by the sentencing

guidelines, and he did not dispute that this crime, when combined with his prior drug-related offense,

qualified him for career-offender status.

       The district court overruled Lundy’s objections and held that the base offense level of 34 was

correct because either: (1) the base level of 32, with a 2 point increase for his role in organizing and

leading the transaction, was achieved even under Lundy’s own estimation of the total amount of


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No. 08-6252
United States of America v. Lundy


drugs he was responsible for trafficking (2,010 OxyContin pills); or (2) as a career offender charged

with a crime punishable by up to 30 years, Lundy merited an offense level of 34 under U.S.S.G. §

4B1.1. (Id. at 21–27.) Based on a criminal history of VI and a total offense level of 31

(incorporating the 3-point deduction for cooperation), the district court sentenced Lundy to 200

months imprisonment, which was toward the lower end of the applicable 188–235 month advisory

guideline range. (Id. at 37–42.)

                                                 II.

       In this appeal, Lundy first argues that the district court committed procedural error in using

the number of OxyContin pills proposed in the PSR—4,020—for purposes of determining his

offense level, rather than the number Lundy admitted trafficking, 2,010. However, as the district

judge noted, either figure, when translated into its marijuana equivalent for sentencing purposes,

yields an amount greater than 1,000 but less than 3,000 kilograms of marijuana,1 the range

corresponding to a base offense level of 32. Furthermore, the judge did not err in finding that

Lundy’s own admission in court that he had transported 2,010 pills established by a preponderance

of the evidence that Lundy was responsible for the sale or attempted sale of at least 2,010 pills.



1
 Section 2D1.1 of the Sentencing Guidelines provides that 1 gram of oxycodone is equivalent to
6,700 grams of marijuana. 1,000 to 3,000 kilograms of marijuana corresponds to an offense level
of 32. Since the oxycodone tablets transported by Appellant were 80 milligrams strong, it is
necessary to first convert that number into grams, yielding .08 grams per tablet. This creates a
modified conversion ratio: .08 grams of oxycodone = 536 grams of marijuana. Appellant admits
to trafficking at least 2,010 tablets, or 160.8 grams of oxycodone (2,010 * .08), which is equal to
1,077,360 grams of marijuana, or 1,077.36 kilograms of marijuana, a figure above the 1,000
kilogram threshold for purposes of § 2D1.1.

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No. 08-6252
United States of America v. Lundy


       Lundy also argues that sentencing him based on either amount violated the beyond-a-

reasonable-doubt standard mandated by Booker. (Appellant’s Supp. Br. at 3–4 (citing United States

v. Booker, 543 U.S. 220, 233 (2005)).) However, Appellant’s argument misapprehends Booker.

Because the guidelines post-Booker are no longer mandatory, the sentencing judge is free to use a

preponderance-of-the-evidence standard in sentencing so long as he does not exceed the statutory

maximum for the convicted crime; here, 30 years. Booker, 543 U.S. at 251–52. This argument is

therefore without merit.

       Finally, Lundy argues that his 200-month sentence was substantively unreasonable, and that

a sentence at the bottom of the guideline range or, alternatively, a downward variance from that

range was warranted. (Appellant’s Br. at 10.) This Court reviews a sentence challenged on

substantive-reasonableness grounds for abuse of discretion. United States v. Presley, 547 F.3d 625,

629 (6th Cir. 2008). We have made it clear that, on appeal, we will presume that a sentence within

the advisory range is reasonable. United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008.)

       During the sentencing hearing, Lundy raised four arguments as to why he should receive a

downward variance or a bottom-of-the-range sentence: (1) he had served very little time previously;

(2) his prior felony conviction for bank robbery was remote in time; (3) he had cooperated

extensively with authorities and taken responsibility for his actions; and (4) he had served only 2

days over the 60-day incarceration threshold for domestic violence convictions. (Sentencing Hr’g,

at 28–30.)




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No. 08-6252
United States of America v. Lundy


       The appellant’s arguments are without merit. The district court addressed each of those

factors and clearly considered them, and the other relevant sentencing factors, when sentencing

Lundy to the lower end of the guideline range. (Id. at 37–42.) The court actually applied a 3-point

reduction to the offense level for cooperation and acceptance of responsibility. (Id. at 26.) Although

the sentencing court had the discretion to consider a lower sentence, it certainly was not required to

do so. Moreover, the sentence actually handed down falls well within the 30-year maximum

prescribed for the offense to which Lundy pled guilty, and the appellant has not pointed to anything

in the record that would rebut the presumption that the sentence is reasonable.

                                                 III.

       For the foregoing reasons, we hereby affirm the sentence imposed by the district court.




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